Prabhas Gayen v. Panchanan Jew Thakur & Bhubaneswari Debi
2013-11-29
TARUN KUMAR GUPTA
body2013
DigiLaw.ai
Judgment : Tarun Kumar Gupta, J. This is an application under Article 227 of the Constitution of India directed against judgment and order dated 27th of September, 2010 passed by learned Civil Judge (Senior Division), 3rd Court, Howrah in Misc. Appeal No.187 of 2008. The O. P. No.1 being plaintiff filed Title suit No.124 of 2005 alleging that the public religious institution was established long back having a temple with idols of god in a plot of land comprising six decimals in Dag No.60. Kunta Rani Das and Srinibas Das gifted further 1 ½ decimals of land in plot No.61 adjacent to said six decimals of land in plot No.60. Defendant Nos. 1, 2 and 3 allegedly purchased a portion of plot Nos. 62, 63 and 61 respectively without having any right, title and interest over the land of plaintiff which is fully described in schedule A. They were trying to get electric connection through plaintiff’s A schedule land. Accordingly, plaintiff filed said suit praying for declaring the plaintiff as the owner of A schedule property with a permanent injunction restraining defendants from taking any electric line through A schedule property. The O. P. No.1 plaintiff filed an application for temporary injunction against private defendants namely petitioner defendant No.1 and O. P. Nos. 2 and 3 being defendant Nos. 2 and 3 and O. P. No. 4 being the district engineer, CESC, Howrah. The present petitioner being defendant No.1 appeared and started to contest the suit by filing written statement as well as written objection against the injunction petition. Petitioner defendant No.1 took the plea that suit plot No.60 did not belong to plaintiff and rather it belonged to District School Board, Howrah whereupon a school was instituted and running. It was further case that plaintiff deity was gifted 1 ½ decimals of land in plot No.61 and that plaintiff had no right, title and interest over any portion of plot No.60 rather the petitioner defendant No.1 and others used said land as common passage for long. The plaintiff is not entitled to get any order of injunction. After contested hearing learned trial court rejected the petition for injunction by an order dated 18th of September, 2008. The O. P. No.1 plaintiff filed a Misc. Case being Misc. Appeal No.187 of 2008. After contested hearing said Misc.
The plaintiff is not entitled to get any order of injunction. After contested hearing learned trial court rejected the petition for injunction by an order dated 18th of September, 2008. The O. P. No.1 plaintiff filed a Misc. Case being Misc. Appeal No.187 of 2008. After contested hearing said Misc. appeal was allowed directing the plaintiff and petitioner defendant No.1 to maintain status quo in respect of A schedule suit property till disposal of the suit vide order dated 27th September, 2010. Hence is this revisional application. Mr. Purnasish Gupta, learned counsel for the defendant No.1, submits that O. P. No.1 plaintiff miserably failed to produce any document whatsoever to show that it had any right, title and interest over any portion of plot No.60. He further submits that rather it came out from the documents filed by the O. P. No.1 plaintiff during injunction hearing that said six decimals of land in plot No.60 was land of Howrah Zila School Board and that a primary school was standing thereupon. According to him, though O. P. No.1 plaintiff got 1 ½ decimals of land in another suit plot No.61 through an ‘Arpannama’ wherein it was mentioned that plaintiff deity got six decimals of land in plot No.60 but it had no basis. According to him, petitioner defendant No.1 and O. P. No.2 and 3 being defendant Nos. 2 and 3 owned and occupied land with residential construction on Dag No.62, 63 and 61 respectively and that there was a six feet wide common passage which ran from local panchayat road through R. S. Dag No.61, 62, and 63. According to him, as the O. P. No.1 plaintiff failed to establish his prima facie case namely ownership and / or possession over six decimals of land in plot No.60 learned court of appeal substantially erred in law by passing an order of status quo. He next submits that electricity is an essential service and that the petitioner defendant No.1 cannot be denied the supply of said essential thing on the alleged ground of pendency of a suit based on a dispute raised by the O. P. No.1 plaintiff. In this connection he refers case laws reported in (2011) 12 SCC 314 (Chandu Khamaru vs. Nayan Malik and others), 2012 (3) CHN (Cal) 548 (Manishi Maity vs. West Bengal State Electricity Distribution Company Ltd.) and (2012) 4 CLT 1 (Sk.
In this connection he refers case laws reported in (2011) 12 SCC 314 (Chandu Khamaru vs. Nayan Malik and others), 2012 (3) CHN (Cal) 548 (Manishi Maity vs. West Bengal State Electricity Distribution Company Ltd.) and (2012) 4 CLT 1 (Sk. Samsud Doha vs. The West Bengal State Electricity Distribution Co., Ltd. & Ors.) to impress upon the court that pendency of a protracted civil dispute cannot stand in the way of getting electricity by the petitioner defendant No.1 in his house through the suit property. Mr. Shyamal Kumar Chakraborty, learned counsel for O. P. No.1 plaintiff, on the other hand, submits that plaintiff had no contractual obligation to permit petitioner defendant No.1 to get electricity connection through any portion of the suit property. He further submits that the petitioner defendant No.1 failed to produce any document to show that any portion of the suit property was ever being used by him as a common passage. He further submits that present petitioner defendant No.1 earlier filed a writ petition being W.P.554 of 2007 claiming supply of electricity to his residence wherein he admitted that the order of status quo passed in the present suit in Misc. Appeal No. 187 of 2008 cannot stand in the way of installation of electric meter in his premises since there are other passages from which installation could be given. According to him, the petitioner defendant No.1 now cannot deny the same. He next submits that another defendant of said Title Suit filed a writ petition being W. P. No.21241 (w) of 2007 (annexure – D of the revisional application) praying for directing licensing company to provide electricity to his house and that one of the Hon’ble Judges of this Court issued direction for supply of electricity to the licensing company but prohibited drawing of supply line over the suit property being the subject matter of Title Suit No.124 of 2005. He next submits that as the petitioner defendant No.1 failed to show even prima facie that there was any common passage through suit plot No.60 /61 he was not entitled to claim laying up electric line through the suit property. He finally submits that the suit being a suit of 2005 necessary direction may be given to the learned trial court for early disposal of the suit after sustaining the order of status quo.
He finally submits that the suit being a suit of 2005 necessary direction may be given to the learned trial court for early disposal of the suit after sustaining the order of status quo. I have considered the submissions made by learned counsels of the parties. I have perused the order impugned and other materials on record. The O. P. No.1 plaintiff claimed his right, title, interest and possession over six decimals of land in suit plot No.60 and 1 ½ decimals of land in suit plot No.61. Admittedly, the O. P. No.1 plaintiff failed to produce any document whatsoever to show that six decimals of land in plot No.60 was ever gifted or allotted to it. It is true that in the ‘Arpannama’ of 1960 through which 1 ½ decimals of land in suit plot No.61 was gifted to the plaintiff deity, there was a reference that six decimals of land in suit plot No.60 was allotted to the plaintiff deity. But there was no supporting document on that score. Rather it came out from the documents filed by O. P. Plaintiff during hearing of the injunction application that six decimals of land in plot No.60 belonged to Howrah Zila School Board and that a primary school was standing thereupon. However, it is a specific case of the O. P. plaintiff that it was possessing said land and said fact can only be established through evidence during trial. In the case of Chandu Khamaru (supra) Hon’ble Apex Court held that the dispute whether the passage is a private passage or a common passage should be left to be decided in the trial but pendency of said trial cannot be a ground to deny supply of electricity to the house of a party. In Manishi Maity’s case (supra) a Division Bench of this Court relying upon a three Judge Bench of this Court held that a person in settled possession of a land is entitled to get electricity as per provision of Electricity Act, 2003 pending resolving of the dispute in civil court. In the case of Sk.
In Manishi Maity’s case (supra) a Division Bench of this Court relying upon a three Judge Bench of this Court held that a person in settled possession of a land is entitled to get electricity as per provision of Electricity Act, 2003 pending resolving of the dispute in civil court. In the case of Sk. Samsud Doha (supra) it was further held that the pendency of the civil suit and the order of status quo as to nature and character of the suit property cannot stand in the way of getting electricity by a party to the suit from the distribution of licensee under relevant provisions of the Electricity Act, 2003 as per rule. But aforesaid case laws have no application in this case having a distinguishable fact. It appears that in the writ application (W.P. No.554 of 2007) the present petitioner defendant No.1 himself admitted that there was an alternative way for laying electric line to his house. There is no document on record to show that said alternative way was not suitable for laying electric line to the house of petitioner defendant No.1. One of the O. P. defendants filed a separate writ application [W.P. No.21241 (W) of 2007] for issuing direction upon O. P. C.E.S.C. authority for giving electric connection to his house. Said writ petition was disposed of after contested hearing directing C.E.S.C. authority to supply electricity to the house of said O. P. defendant, but not through the suit property of this case. Under these circumstances the petitioner defendant No.1 is not entitled to claim laying of electric line through suit property by varying the order of status quo, which was passed for preserving the suit property. However, learned trial court is hereby directed to dispose of the old suit of 2005 at an early date and peremptorily by 30th June, 2014 without granting unnecessary adjournments to either side. The revisional application is hereby disposed of accordingly. No costs.