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2013 DIGILAW 518 (PAT)

Upendra Pd. Sinha v. Ram Ekbal Sah

2013-04-17

KISHORE K.MANDAL

body2013
ORAL ORDER The petitioner, by filing the present application, seeks initiation of contempt proceeding against the opposite parties (1st set) for wilful/deliberate violation of order dated 3.10.2007 passed by a Bench of this Court in M.A. No. 187 of 2005 (Annexure-1). 2. Petitioner is the plaintiff of Title Suit No. 124 of 2004 lodged through Hemant Kumar Thakur (holder of Power of Attorney) seeking declaration of his title and confirmation of possession in respect of subject land covered by two sale deeds dated 29.12.2000 and 11.4.2002 executed by his full brother namely Bhola Nath Singh (defendant 2nd party to the title suit) in favour of the opposite parties 1st set herein. The parties herein, for the sake of convenience, would be referred to by their respective positions in the title suit. It was also prayed that the two sale deeds covering property incorporated in Schedule-I and II of the plaint be declared as inoperative. Let it be recorded that the vendor of the suit property namely Bhola Nath Singh (defendant 2nd party) filed written statement in the said suit supporting the case of the plaintiff. The suit property contained both agricultural as well as homestead lands. It is agreed at Bar that the present proceeding relates only to the agricultural land appertaining to Khata No. 286, Plot Nos. 110 (60 decimals), 111 (45 decimals), 112 (62 decimals), 115 (58 decimals) and 113 (17 decimals) situated in mauza Kishanpur in the district of Sitamarhi (covered by first sale deed). 3. In the said suit, the plaintiff filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (for short C.P.C.) on 28.9.2004 for restraining the defendant 1st party from interfering with possession in respect of the subject agricultural land. A rejoinder was filed thereto stating therein that they are bona fide purchasers from defendant 2nd party and are in actual physical possession since the date of their purchase. The claim of the person holding the Power of Attorney on behalf of Upendra Prasad Sinha was also disputed. On an application filed by the plaintiff for spot verification of the subject land, an Advocate Commissioner was appointed who after making spot inquries in presence of parties, submitted report on 7.1.2005. It was pointed out in the report that the suit land comprises of agricultural land as well as residential houses, bathan, baithka etc. On an application filed by the plaintiff for spot verification of the subject land, an Advocate Commissioner was appointed who after making spot inquries in presence of parties, submitted report on 7.1.2005. It was pointed out in the report that the suit land comprises of agricultural land as well as residential houses, bathan, baithka etc. wherein defendant 2nd party was found residing in. On a consideration of the matter, the learned Trial Judge by order dated 17.3.2005 rejected the said petition filed by the plaintiff. In other words, the restraint order prayed for in respect of dispossession from the agricultural land (part of the suit land) was rejected. Aggrieved thereby, the plaintiff filed Misc. Appeal No. 187 of 2005. This Court by order dated 3.10.2007 passed order in the following terms: “Accordingly, this appeal is allowed and the respondents/defendant 1st party is restrained from interfering in the possession of the plaintiff or dispossessing the plaintiff from the possession of the suit property. He is also restrained from cutting and removing the trees standing on the suit property as also from fishing in the ponds of the suit property till the disposal of the suit.” 4. The plaintiff thereafter filed application (Annexure-2) in the Court below annexing therewith the order passed by this Court in M.A. No. 187 of 2005. The learned Trial Judge by order dated 12.5.2008 passed in Title Suit No. 124 of 2004 directed his office to forward copy of the said order to the Officer-in-Charge, Bathnaha Police Station as well as the Superintendent of Police, Sitamarhi. The plaintiff filed yet another application dated 7.12.2010 (Annexure-5) raising the similar grievances but this time in respect of harvesting of sugarcane on part of the subject land before the Officer-in-Charge, Bathnaha Police Station. Having found that the order passed by this Court in Misc. Appeal No. 187 of 2005 was being repeatedly violated by the defendant 1st set, the plaintiff filed Misc. Case No. 14 of 2009 in the Trial Court for initiating a proceeding under Order 39 Rule 2A of the C.P.C. for punishing the defendant 1st party for wilful violation of the order passed in M.A. No. 187 of 2005. It was alleged that the defendant 1st set were hell bent upon to disturb the possession of the plaintiff over the said subject land. It was alleged that the defendant 1st set were hell bent upon to disturb the possession of the plaintiff over the said subject land. It is the case of the plaintiff that in connection with dispossession of the plaintiff over the subject land, a criminal case vide Bathnaha P.S. Case No. 321 of 2009 was also filed under Sections 341, 323, 379/34 of the Indian Penal Code (Annexure-5) in which charge-sheet was submitted. 5. While the said Misc. Case No. 14 of 2009 was pending enquiry, the plaintiff filed the present application to initiate a contempt proceeding against the defendant 1st party for wilful violation of order dated 3.10.2007 passed in M.A. No. 187 of 2005. Notice was issued to the parties. Defendant 1st set appeared and filed a show cause bringing notice of this Court that the present proceeding was not sustainable in law as the plaintiff had already filed a Misc. Case No. 14 of 2009 for alleged disobedience of the order of this Court in the Trial Court in which an enquiry was being made and evidence was being led by the plaintiff inasmuch as four witnesses on behalf of the plaintiff had already been examined. It was further stated that on merit also, the present application is not sustainable in law since the defendant 1st party were in cultivating possession of the disputed agriculture land/plot sold to them much prior to lodging of the suit and they were put in physical possession thereof which was in the knowledge of the plaintiff. Harvesting of sugarcane between 10.11.2009 and 20.11.2009 was, in particular, denied. 6. A supplementary affidavit on behalf of the petitioner was thereafter filed stating therein that the Power of Attorney dated 28.5.2005 on the strength of which the suit was filed by Hemant Kumar Thakur has now been cancelled by the plaintiff on 1.8.2012 and a fresh Power of Attorney has been executed in favour of one Nitesh Kumar Singh, son of Late Govind Narayan Singh (Annexure-6). An application thereafter was filed on 7.9.2012 in Misc. Case No. 14 of 2009 seeking withdrawal of Misc. Case No. 14 of 2009. In the light of the said application, the learned Trial Court by order dated 19.9.2012 allowed the plaintiff to withdraw Misc. Case No. 14 of 2009 which was accordingly dismissed as withdrawn. 7. An application thereafter was filed on 7.9.2012 in Misc. Case No. 14 of 2009 seeking withdrawal of Misc. Case No. 14 of 2009. In the light of the said application, the learned Trial Court by order dated 19.9.2012 allowed the plaintiff to withdraw Misc. Case No. 14 of 2009 which was accordingly dismissed as withdrawn. 7. Further, supplementary show cause on behalf of defendant 1st party has been filed. 8. Heard Sri Siya Ram Shahi for the petitioner and Mr. Pushkar Narain Shahi who appeared on behalf of defendant 1st set (opposite parties 1st herein). Parties have already exchanged pleadings. 9. Learned counsel for the petitioner submitted that from diverse applications filed by the petitioner including the F.I.R. lodged by him which was investigated and found true and charge-sheet was submitted, it would demonstrably appear that the defendant 1st party have wilfully infringed the order of this Court. It is submitted that in the year 2011, another criminal case vide Bathnaha P.S. Case No. 136 of 2011 was also lodged on 10.11.2011 under Sections 341, 323, 379, 506, 504/34 of the Indian Penal Code in connection with dispossession of the plaintiff over the subject land. The Officer-in-Charge, Bathnaha Police Station vide notice dated 28.7.2011 (Annexure-10) directed the defendant 1st set not to create any hindrance/obstruction in respect of the subject land until disposal of the matter by this court. The plaintiff first party namely Sri Ram Ekbal Sah vide endorsement on the said notice refused to receive the same which was pasted on his house. Even thereafter, defendant 1st party continued in creating hindrances in the possession of plaintiff over the subject land. The defendant 1st party have, therefore, graduated themselves to be adequately punished for wilful/deliberate violation of the order passed by this Court in Misc. Appeal No. 187 of 2005. 10. Per contra, Mr. Pushkar Narain Shahi submitted that the registered sale deed was executed in favour of defendant 1st party on 29.12.2000. As per the contents of the sale document, the purchasers were put in possession of the subject land. This all happened much prior to the institution of Title Suit No. 124 of 2004. The sale was made in their favour by defendant 2nd party (Bhola Nath Singh) who is full brother of the plaintiff namely Upendra Prasad Sinha. As per the contents of the sale document, the purchasers were put in possession of the subject land. This all happened much prior to the institution of Title Suit No. 124 of 2004. The sale was made in their favour by defendant 2nd party (Bhola Nath Singh) who is full brother of the plaintiff namely Upendra Prasad Sinha. The erstwhile holder of Power of Attorney namely Hemant Kumar Thakur and the subsequent holder of Power of Attorney namely Nitesh Kumar Singh are the two sons in law of their vendor namely Bhola Nath Singh (defendant 2nd party ). The suit was, therefore, instituted maliciously and for oblique reasons by setting up his son-in-law which was subsequently got changed and his another son-in-law was appointed as duly constituted Attorney of his full brother (the plaintiff). It is urged that going by the case of the plaintiff, the purchasers (defendants 1st party) of the subject land would be at best entitled to hold and possess half of 3.10 acres of agriculture land which is the subject matter of the present proceeding. It is next contended that on the request of the plaintiff petitioner, an Advocate Pleader Commissioner was appointed to make on spot verification of the subject land and submit a report. A report was submitted by the Advocate Commissioner in which it was found that the residential house, sahan and bathan appertaining thereto was in possession of the defendant 2nd party. In other words, at no point of time, the defendant 1st party had dispossessed or tried to dispossess their vendor who is full brother of the plaintiff from the residential house and land appertaining thereto. It has not been reported therein that the subject suit land (part of agricultural land) was in possession of the plaintiff or his full brother (defendant 2nd party). This Court noticed the aforesaid fact in its order dated 3.10.2007 (Annexure-1) and, therefore, specifically restrained the defendant 1st party from cutting and removing the trees standing on the suit properties as also from fishing in the ponds of the suit properties until disposal of the suit. There is no allegation at any point of time that the defendant 1st party cut and removed the trees standing on the suit land and/or put any hindrances in fishing in the pond by the plaintiff or the defendant 2nd party (full brother). There is no allegation at any point of time that the defendant 1st party cut and removed the trees standing on the suit land and/or put any hindrances in fishing in the pond by the plaintiff or the defendant 2nd party (full brother). He also submitted that in such circumstances, if an allegation of disobedience is made, an enquiry into the matter is imperative. An enquiry was already initiated at the instance of the plaintiff when a miscellaneous proceeding vide Misc. Case No. 14 of 2009 was instituted in the Trial Court wherein witnesses on behalf of the applicant (plaintiff) were examined. The evidence of the witnesses are on record enclosed with the supplementary show cause filed on behalf of the defendant 1st party/1st set. It is contended that the allegations contained in the application giving rise to Misc. Case No. 14 of 2009 was specific with regard to cutting of sugarcane grown on the disputed land (Schedule 1 of the plaint) between the period 10.11.2009 and 20.11.2009 for which a first information was also lodged vide Bathnaha P.S. Case No. 321 of 2009 on 10.11.2009. The Investigating Agency found the said case to be purely civil in nature and the accuseds of the said case were not sent up. In course of the said enquiry conducted by the learned Trial Court, four witnesses were examined. None of them disclosed any overt act having been committed by the defendant 1st party in respect of the sugarcane grown on the subject land between 10.11.2009 to 20.11.2009. Even the holder of Power of Attorney who was examined as A.W. 4 in Misc. Case No. 14 of 2009 (Annexure-A) did not support the said allegation. 11. I have considered the rival submissions made on behalf of the parties and perused the materials on record. The suit land, it appears, can be bifurcated into two parts: one containing dwelling house and the lands appertaining thereto whereon trees are standing. There is also a pond on the suit land. Another part of the suit land is/are agriculture land. By reason of two sale deeds executed by the full brother of the plaintiff, those properties were alienated in favour of defendant 1st party well before the institution of the suit. In connection with proceeding lodged by the plaintiff seeking injunction/restrain order, the Advocate Commissioner was appointed by the Court. Another part of the suit land is/are agriculture land. By reason of two sale deeds executed by the full brother of the plaintiff, those properties were alienated in favour of defendant 1st party well before the institution of the suit. In connection with proceeding lodged by the plaintiff seeking injunction/restrain order, the Advocate Commissioner was appointed by the Court. Report of the Commissioner is not on record. However, from the order passed by this Court in M.A. No. 187 of 2004, it can be gathered that the said report found the residential house and sahan/bathan appertaining thereto in possession of the vendor (full brother of the plaintiff). This Court, in the backdrop of the aforesaid facts appearing from record, specifically restrained the defendant from cutting and removing trees standing on the suit properties as also from fishing in the pond. The defendant 1st party was, however, also restrained from interfering in the possession of the plaintiff or dispossessing the plaintiff from possession of the suit property. The question is whether in the light of the said order, it can be concluded that there was clear direction restraining the plaintiff/defendant 1st set from interfering in the possession of the plaintiff or dispossessing the plaintiff in respect of the said land. The plaintiff is full brother of the defendant 2nd party/set. The suit filed by the plaintiff seeks a declaration that there was no partition between the two brothers and alienations made by his brother (defendant 2nd set) be, therefore, be held invalid. For the sake of consideration of the present issue raised in the application even in case of the suit having been allowed, half portion of the subject land conveyed in favour of defendant 1st party will be upheld as the defendant 2nd party was entitled to half share in the property including the subject land. An enquiry in this regard, on an allegation made to this effect would be necessary which would crystallize the facts necessary for consideration of the matter. Such enquiry was being conducted at the instance of the plaintiff by the Trial Court vide Misc. Case No. 14 of 2009 in which several witnesses were examined. An enquiry in this regard, on an allegation made to this effect would be necessary which would crystallize the facts necessary for consideration of the matter. Such enquiry was being conducted at the instance of the plaintiff by the Trial Court vide Misc. Case No. 14 of 2009 in which several witnesses were examined. When the said enquiry reached at an advance stage, the plaintiff, in his own wisdom, chose to cancel the Power of Attorney executed in favour of Sri Hemant Kumar Thakur and appointed another son-in-law of his brother (defendant 2nd set) as his attorney. The said proceeding was sought to be withdrawn by the subsequent holder of Power of Attorney. The plaintiff, in the meanwhile, filed the present proceeding in this Court in which show causes have been filed on behalf of the defendant 1st party disclosing the facts noticed hereinabove. The suit was lodged in the year 2004. Any enquiry to ascertain the facts necessary for disposal of the case would consume time. The disposal of the suit, in the meanwhile, shall remain ignorant. It has been submitted on behalf of the defendant 1st party that the suit itself be directed to be disposed of expeditiously wherein defendant 1st party would fully cooperate. Learned counsel for the petitioner has also undertaken before this Court that in case the suit itself is directed to be disposed of expeditiously, the plaintiff shall extend full cooperation in such expeditious disposal of the suit. 12. In the light of discussion hereinabove and the stand taken by the parties, this Court, on the basis of materials placed on record, is unable to hold the defendant 1st party guilty of having committed deliberate/wilful disregard of the order 3.10.2007 passed in M.A. No. 187 of 2005. I could have directed an enquiry to be made on the specific charges/allegations contained in the application in order to proceed further in the matter but in view of the stand taken by the parties, I direct the learned Trial Court to endeavour to dispose of the pending Title Suit expeditiously preferably within seven (07) months from the date of receipt/production of a copy of this order before the Presiding Judge. The parties will not take unnecessary adjournments. The learned Trial Court shall guard against such unnecessary and/or uncalled for adjournments. Both the parties will extend full cooperation in expeditious disposal of the matter. The parties will not take unnecessary adjournments. The learned Trial Court shall guard against such unnecessary and/or uncalled for adjournments. Both the parties will extend full cooperation in expeditious disposal of the matter. The parties are further directed to maintain status quo as existing today in respect of the subject land until final disposal of the suit. 13. The application is disposed of.