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2013 DIGILAW 200 (GAU)

Benimadhab Bhowmic v. State of Tripura

2013-03-18

UTPALENDU BIKAS SAHA

body2013
JUDGMENT Utpalendu Bikas Saha, J. 1. The instant revision petition is filed by the petitioners, 7 in numbers, who are the legal heirs of the original plaintiff in Title Suit No. 126 of 2010, challenging the order dated 18-02-2012 passed by the learned Addl. District Judge, (Court No. 3), West Tripura, Agartala in an appeal under Order XLIII, Rule 1(r) of the Civil Procedure Code i.e. Misc. Appeal No. 1 of 2011 wherein the learned Addl. District Judge dismissed the appeal affirming the order dated 13-01-2011 passed by the learned Civil Judge (Senior Division); Court No. 2, West Tripura, Agartala in Misc. Case No. 131 of 2010 arising out of the aforesaid Title Suit whereby and whereunder the learned Civil Judge (Sr. Division) vacated the ad-interim order of injunction passed on 23-12-2010. Heard Mr. A.K. Bhowmik, learned Sr. Counsel assisted by Mr. R. Datta, learned counsel appearing on behalf of the petitioners as well as Mr. G.S. Bhattacharjee, learned State Counsel appearing for the State-respondents. 2. As agreed to by the learned counsel appearing for the parties and considering the impugned order, the instant revision petition is taken up (or disposal at the admission stage itself. 3. Facts needed to be discussed for disposal of the instant revision petition, in short, are as follows:- The predecessor-in-interest of the petitioners, Lt. Gopal Bhowmik, along with his full blood brothers came to India in the year 1952 from East Pakistan and acquired landed property in village Champamura by way of exchange of their properties with a Muslim owner who left for East Pakistan, After exchange of the said property, i.e., the suit land, the said land was shown in the forceful possession of the predecessor-in-interest of the petitioners and his brothers in Khatian No. 1/23 at the time of first Survey Settlement, but during the Revisional Survey Operation, the names of the predecessor-in-interest of the petitioners and his brothers were omitted from the records of right although they were in physical possession by acquiring adverse title. 4. 4. When the petitioner No. 4, Sujan Bhowmik, son of the predecessor-in-interest was preparing for rubber plantation in the suit land, Gaon Pradhan of Champamura Gaon Panchayat along with some companions appeared in front of the suit land and obstructed the petitioner No. 4 from planting rubber plants and also threatened the predecessor-in-interest of the petitioners with the aid of the Collector, West Tripura and Sub-Divisional Magistrate, Bishalgarh for evicting the predecessor-in-interest of the petitioners from the suit land. 5. Thereafter, the predecessor-in-interest of the petitioners instituted the suit being Title Suit No. 126 of 2010 along with Misc. Case No. 131 of 2010 before the Court of learned Civil Judge (Senior Division), Court No. 2, West Tripura, Agartala praying for a decree for declaration of title by adverse possession, confirmation of possession and perpetual injunction on the suit land described in the schedule of the plaint along with a prayer for temporary injunction against the defendant- respondents, State of Tripura and others. Accordingly, the learned Civil Judge (Sr. Division) passed an ad-interim order of temporary injunction in favour of the predecessor-in-interest of the present petitioners on 23-12-2010. 6. When the ad-interim order of temporary injunction was in force, the plaintiff, who was the predecessor-in-interest of the present petitioners, died on 07-01-2011 and thereafter the present petitioners submitted an application on 13-01-2011 for substituting them as plaintiffs in the aforesaid suit being the legal heirs of the original plaintiff, their predecessor-in-interest, as well as an application for extension of the order of temporary injunction granted earlier. 7. The learned Civil Judge (Sr. Division) before passing any order in the substitution petition rejected the prayer for temporary injunction on 13-01-2011, i.e. the date on which the application for substitution was filed by the present petitioners, considering that in the suit land, according to the State-respondents, there is a graveyard possessed by the Muslim people and also a cremation ground possessed by the Hindu people. 8. Being aggrieved by the aforesaid order of the learned Civil Judge (Sr. Division), the present petitioners preferred an appeal under Order XLIII, Rule 1(r) of the Civil Procedure Code before the learned District Judge, West Tripura which was registered as Misc. Appeal No. 01 of 2011 and thereafter transferred the same before the Court of learned Addl. District Judge, (Court No. 3), West Tripura, Agartala and the learned Addl. District. Division), the present petitioners preferred an appeal under Order XLIII, Rule 1(r) of the Civil Procedure Code before the learned District Judge, West Tripura which was registered as Misc. Appeal No. 01 of 2011 and thereafter transferred the same before the Court of learned Addl. District Judge, (Court No. 3), West Tripura, Agartala and the learned Addl. District. Judge on 18-02-2012 hearing the learned counsel for the parties dismissed the appeal affirming the order of the learned Civil Judge (Sr. Division). Hence, the revision petition. 9. Mr. Bhowmik, learned Sr. Counsel for the petitioners, while questioning the impugned order passed by the learned Addl. District Judge as well as the order of the learned Civil Judge (Sr. Division) which was affirmed by the learned Addl. District Judge, would contend that both the learned Civil Judge (Sr. Division) as well as the learned Appellate Judge failed to consider that in absence of the plaintiff in the suit, the legal heirs of the plaintiff i.e. the present petitioners are legally entitled to be substituted as plaintiffs and in absence of them, if any order is passed affecting their rights, that would cause injustice and actually, both the Courts below failed to consider the said aspect and committed error while rejecting the prayer for temporary injunction as we]] as dismissing the appeal affirming the order of rejection of temporary injunction. He further submits that the learned Appellate Court ought to have considered that the learned Civil Judge (Sr. Division) rejected the prayer for injunction before substitution of the present petitioners as plaintiffs, meaning thereby in absence of the plaintiffs on record even after knowing that the original plaintiff died on 07-01-2011. He has finally contended that the learned Civil Judge (Sr. Division) rejected the prayer for injunction before substitution of the present petitioners as plaintiffs, meaning thereby in absence of the plaintiffs on record even after knowing that the original plaintiff died on 07-01-2011. He has finally contended that the learned Civil Judge (Sr. Division) failed to consider the established principle as to in what circumstances an interim order of injunction granted earlier in favour of the plaintiff can be discontinued even in absence of the original plaintiff who had already expired and when the legal heirs of such plaintiff are before the Court for substitution and passed the aforesaid order without considering the balance of convenience and inconvenience of the parties before it and the learned Appellate Court also failed to consider the aforesaid aspect and only considering the submission of the State-respondents, i.e. the defendants in the suit that the suit land is a khas land and the local people has been using the suit land as graveyard for Muslim people and cremation ground for Hindu people and the remaining portion will be used for Anganwadi centre affirmed the order passed by the learned Civil Judge (Sr. Division), though on records of right nowhere it is mentioned that there is a graveyard as well as cremation ground in the suit land. 10. Mr. Bhattacharjee, learned State Counsel, while countering the submission of Mr. Bhowmik, learned Sr. Counsel, would contend that admittedly the learned trial Court i.e. the Civil Judge (Sr. Division) committed wrong rejecting the prayer for temporary injunction before passing any order in the substitution petition filed by the petitioners, but probably the said order was passed keeping in mind the public interest as the suit land is being used by the local people as graveyard and cremation ground and in the Revisional Survey Settlement Operation, the records of right did not indicate the name of the predecessor-in-interest of the present petitioners. Mr. Bhattacharjee has also supported the order of the learned Appellate Authority, as impugned herein. 11. Mr. Bhattacharjee has also supported the order of the learned Appellate Authority, as impugned herein. 11. Having heard the learned counsel for the parties and on going through the records, this Court is of considered opinion that it is not necessary for this Court to discuss in details regarding the pleaded case of the parties in the application for temporary injunction as well as the objection filed by the parties, as the debate before this Court is as to whether in absence of the original plaintiff and his legal heirs on record, the ad-interim order granted at the initial stage can be discontinued/vacated and the said order can be affirmed by the Appellate Court. 12. According to this Court, when admittedly the original plaintiff of the suit i.e. the predecessor-in-interest of the petitioners in the application for temporary injunction expired on 07-01-2011 and during the pendency of the suit, a prayer was made by the petitioners, legal heirs of the plaintiff, for substituting them as plaintiffs and also for extending, continuing the ad-interim injunction granted earlier, it was the duty of the Court to first substitute the petitioners as plaintiffs and hear the parties before it on the application filed for extension of ad-interim injunction granted earlier in accordance with law. But the learned trial Court without doing so vacated the ad-interim injunction taking note of the fact that in the suit land there is a graveyard and a cremation ground and some portion of the suit land will be used for Anganwadi centre. The said order of the learned trial Court is bad according to this Court, as the same was passed before substituting the petitioners as plaintiffs in the suit and also without considering their case as stated in their application for extension of ad-interim injunction. The trial Court could have vacated the ad-interim order of injunction after substituting the present petitioners as plaintiffs and providing them opportunity to participate in the injunction proceeding. 13. More so, the Appellate Court also while hearing the appeal of the present petitioners failed to consider the aforesaid aspect as stated by this Court, rather touched the merit of the suit in a Misc. 13. More so, the Appellate Court also while hearing the appeal of the present petitioners failed to consider the aforesaid aspect as stated by this Court, rather touched the merit of the suit in a Misc. Appeal stating, inter alia, that "the predecessor of the plaintiff-appellants filed the suit bearing No. Title Suit 12b of 2010 for declaration of the title by adverse possession and the suit is still pending meaning thereby that adverse title has not yet declared by the Court. Claiming adverse title amounts to admission of the title of State of Tripura on the suit land. It appears from the C.S. Khatian No. 1/23 submitted by the plaintiff-appellants that Late Gopal Bhowmik and his two brothers though shown as possessor illegally over the suit land but as per revisional survey and settlement operation vide Khatian No. 1/11 the Government of Tripura, i.e., the defendant-respondents are shown in absolute possession over the suit land and so, the recent document does not support the possession of the predecessor of the plaintiff- appellant over the suit land. Thus, from the above facts, at this stage I find that the defendant-respondents, i.e., the State of Tripura is the owner of the suit land and the possession of the suit land is also lying with them and in such a position I find no prima facie material on behalf of the plaintiff-appellants to grant injunction in their favour. 14. In an appeal under Order XLIII, Rule 1(r) against the order passed by a subordinate Court exercising its power under Order XXXIX, Rule 1 and 2, the Appellate Court should not decide the issue involving the merit of the suit as that would otherwise cause injury to either of the parties involved in the suit. The Court should have considered as to whether the Court which passed the order of injunction or vacated the order of injunction had considered the irreparable injury, balance of convenience and prima facie, case of the parties involved in the proceeding, as it is a settled principle of law that an order of injunction or interim orders are issued not on gracing a party before it, but in the interest of justice so that justice seeker should not be ousted from the arena of the Court during pendency of the suit. Not only that at the time of considering the prayer for injunction, the Court is to keep in mind that under Order XXXIX, Rules 1, 2 and 7 to grant appropriate relief is not to be confused with the actual relief claimed by the applicant either in the plaint or in the injunction petition. When a plaintiff- applicant can make out a case that in absence of non granting of an injunction order, he will be deprived for ever of the relief claimed by him in the suit, then the Court should consider the prayer for granting temporary injunction in exercising its discretionary power, and if once an ad-interim injunction is granted in favour of a party, then such an interim order, if not automatically discontinued, in whose favour the same is granted should be given an opportunity before rejecting the prayer for injunction order. 15. In Bindeshwar Narayan Singh and others v. S.S.H. High School, a Division Bench of this Court while dealing with the provisions of Order XXXIX, Rule 1 considering the judgment of the Apex Court in Uttar Pradesh Co-operative federation Ltd. v. Sunder Bros., Delhi, AIR 1967 SC 249 , and the decision in Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg and another, AIR 1977 SC 747 , noted that if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored the relevant facts then it would be open to the appellate Court to interfere with the trial Court's exercise of discretion and if the discretion is not exercised by the trial Court in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, the order passed by the appellate Court can be reversed by the superior Court. 16. In the instant case, admittedly the learned Appellate Court though decide whether to grant temporary injunction or not to grant it, and not to decide any issue which touches the merit of the suit, but has virtually decided the issue which touches the merit of the suit even without considering that in absence of substitution of the legal heirs of the deceased plaintiff, an interim order granted in favour of the plaintiff while he was alive, his legal heirs, i.e. the present petitioners, would be affected and admittedly when the suit was not abated. More so, learned appellate Court did not consider as to whether the trial Court while exercising its discretionary power acted in terms of the statutory provisions fairly or honestly or according to the rules of reason and justice, Thus, this Court is of further opinion that the learned appellate Court has failed to exercise its jurisdiction vested on it. 17. In the result, the impugned order dated 18-02-2012 passed by the learned Appellate Authority, i.e., the learned Addl. District Judge, (Court No. 3), West Tripura, Agartala, and the order dated 13-01-2011 passed by the learned trial Court, i.e., the Civil Judge (Sr. Division), Court No. 2, West Tripura, Agartala, against which the appeal was preferred, are hereby set aside and the case is remitted to the learned trial Court to hear the parties afresh on the application filed by the present petitioners who have by this time already been substituted as plaintiffs on their application for continuation of the ad-interim injunction granted earlier. Before hearing on the application for continuation of the ad-interim injunction granted earlier, the trial Court should issue notice to the parties so that they can appear and participate in the hearing and till the application for continuation of the ad-interim temporary injunction preferred by the present petitioners is disposed of, status-quo as on today so far as the suit land is concerned shall be maintained by the parties. Accordingly, the instant revision petition is allowed. No order as to costs.