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2015 DIGILAW 1415 (GAU)

Dineswari Kalwar v. Ganesh Chandra Dutta

2015-11-16

N.CHAUDHURY

body2015
JUDGMENT : By filing this application under Article 227 of the Constitution of India, the petitioners herein have challenged the legality and validity of the order dated 22.01.2015 passed by learned Munsiff, Titabar in Misc. (J) Case No. 3/2015 whereby the learned court directed the parties to maintain status quo with respect to the land involved in Title Execution No. 6/2014 the schedule of which is furnished below:- “An area of land measuring 01 (one) Locha covered by Dag No. 1420 of P.P. No. 18 of under Amguri Kharikatia Mouza, Titabor Town out of land measuring an area of 05 (Five) Lochas of land having one room out of two rooms standing on the said 01 Locha land which is bounded by: East Anis Ali’s Bakery Shop West House of Munilal Sahu North Dhudor Ali South House of Decree Holder In the impugned order dated 22.01.2015, the learned Executing court has observed that petitioners of the said Misc. (J) case who is the sole opposite party in the present proceeding, has made out a strong prima facie case to go for trial and that balance of convenience lies in his favour. According to the learned Executing Court, if the prayer of the petitioners before him for granting status quo with respect to the land is not granted, the petitioners would suffer irreparable loss and injury. According to Mr. MU Mahmud, learned counsel for the petitioners herein, the aforesaid order is vitiated by jurisdictional error as the basic principles on which a prohibitory injunction of such nature has to be passed, have not been followed in the instant case. Prohibitory injunction is granted under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure or by way of supplemental proceeding under Section 94 of the Code of Civil Procedure. However, the basic ingredients on which an order in the nature of injunction is passed remains the same. This means that before passing an order of prohibitory injunction, the court is duty bound to satisfy itself that the petitioner has a strong prima facie case for getting injunction, that the balance convenience lies in favour of the petitioner and that if the order, as prayed for, is not granted, the same would give rise to irreparable loss and injury which cannot be compensated in terms of money. In appropriate case, element of public interest is also a guiding factor for the purpose of granting interim prohibitory injunction whether under Order XXXIX or under Section 94 of the Code of Civil Procedure. The learned court, in the case in hand, has not discussed as to how the opposite party herein has a strong prima facie case for getting an injunction order, Mr. MU Mahmud argued. 2. To understand the basic point for adjudication in the present case, it is necessary to have a view of the background facts of the dispute. The sole opposite party, as plaintiff, instituted Title Suit No. 13/1985 in the Court of learned Munsiff No. 1 at Jorhat praying for a decree for declaration of his right, title and interest and recovery of possession by evicting the defendants therein from the suit land measuring 5 lechas covered by Dag No. 1420 out of 10 lechas of land of the said Dag of P.P. No. 18 of Titabar Town, Amguri Kharikatia mouza. In the said case the plaintiff also made a prayer for eviction of 8 (eight) defendants alleging them to be trespassers. The learned trial court by judgment and decree dated 22.11.1988 decreed the suit against which the defendants preferred title appeal No. 1/1989 in the court of learned Civil Judge at Jorhat. The learned first appellate court allowed the appeal and remanded the matter to the trial court by his judgment and decree dated 18.01.1996. Upon remand, the learned Munsiff dismissed the suit by his judgment and decree dated 22.11.1996. Aggrieved, the plaintiff preferred title appeal No. 2/1997 in the court of learned Civil Judge, Jorhat and the same was allowed by the learned first appellate court on 01.09.2000 and the suit was decreed. The defendants thereafter preferred regular second appeal being R.S.A. No. 15/2001 before this court challenging the appellate judgment and decree dated 01.09.2000 and this Court by judgment and decree dated 11.06.2013 allowed the second appeal and remanded the matter to the learned first appellate court to decide the matter afresh in view of the observations made therein. Accordingly, the learned first appellate court by judgment and decree dated 30.11.2013 dismissed the appeal and in the process, the judgment of dismissal passed by the learned trial court was upheld. Accordingly, the learned first appellate court by judgment and decree dated 30.11.2013 dismissed the appeal and in the process, the judgment of dismissal passed by the learned trial court was upheld. This order of dismissal by the learned first appellate court on 30.11.2013 has not been challenged before this court by filing any second appeal and the matter attained finality. 3. After the suit of the plaintiff for declaration of right, title and interest and recovery of possession was dismissed and the ultimate appeal preferred there-against had also failed, the plaintiff, Ganesh Chandra Dutta appears to have abandoned his claim and did not institute any other proceeding. But the defendants who had neither preferred any counter claim nor did they institute any suit and did not have a decree in their favour, they filed an execution proceeding being T.Ex. No. 6/2014 in the court of learned Munsiff at Titabar and the learned Executing court failing to notice that there was no decree to be executed issued direction for execution of the decree. By drawing attention of the court to an order dated 15.12.2014 passed by the learned Executing court in T.Ex. No. 6/2014, the learned counsel for the petitioner herein (the defendants of T.S. No. 13/1985) Mr. MU Mahmud submits that the decree was satisfied and thereupon the execution case was disposed of by the learned Munsiff. Thereafter the plaintiff filed an application under Section 47 read with section 151 of the Code of Civil Procedure before the same executing court on 22.01.2015 and this application was numbered as Misc. (J) Case No. 2/2015. By this application the plaintiff of T.S. No. 13/1985 prayed that the opposite parties, meaning thereby the defendants of T.S. No. 13/1985 be directed to vacate and handover peaceful possession of the schedule ‘A’ land to him and also to grant cost and compensation. The plaintiff also filed another application under section 151 praying for prohibitory order during pendency of the proceeding under Section 47 C.P.C. so as to restrain the opposite parties therein and their men and agents from disturbing status quo with respect to the schedule ‘A’ property. The schedule ‘A’ described in Misc. The plaintiff also filed another application under section 151 praying for prohibitory order during pendency of the proceeding under Section 47 C.P.C. so as to restrain the opposite parties therein and their men and agents from disturbing status quo with respect to the schedule ‘A’ property. The schedule ‘A’ described in Misc. (J) Case No. 2/2015 is quoted below:- “Scheduled-A All the piece and parcel of a land admeasuring 3.5 lechas of land out of 8.5 lechas covered under Dag No. 1420 and Patta No. 18 of Titabar Town, Lat No. 5 under Aamguri Kharikatia Mouza of Titabar revenue circle, District Jorhat Assam. Bounded on four sides by: Four boundaries of the scheduled land: East Gar Ali West Land and structure of Sri Munnilal Sahu North Dhodhar Ali South Suit Land” This application was numbered as Misc. (J) Case No. 3/2015 and notices were issued to the present petitioners. It is this miscellaneous case wherein the present impugned order has been passed directing the parties to maintain status quo with respect to the property. 4. As has been pointed out, the defendants did not have any decree in their favour to execute but even then an execution proceeding was registered and execution held. It is not clear as to how in the absence of a decree, an execution proceeding could have been registered or execution conducted. Be that as it may, merely because in that application the alleged decree holders described the present opposite party (Ganesh Chandra Dutta) to be in possession of the land, he filed an application under section 47 of the Code of Civil Procedure staking his claim of possession over the suit land and asserting that some of his lands have been encroached by way of execution and so he was entitled to recovery of that land. Now, if the land which is the subject matter of Title Execution No. 6/2014 and the land which is the subject matter of Misc. (J) Case NO. 2/2015 and Misc. (J) Case No. 3/2015 are same, all arising out of same Title Suit No. 13/1985, in that event, plaintiff Ganesh Chandra Dutta cannot have any claim with respect to the same, inasmuch as, his claim for right, title and interest over the suit land has already been adjudged against him by courts of competent jurisdiction and such decree has attained finality. The learned executing court while passing the impugned order has not considered as to whether the land which is the subject matter of Misc. (J) Case No. 2/2015 and Misc. (J) Case No. 3/2015 are same as that of title suit No. 13/1985 and so the finding of the learned executing court that applicant Ganesh Chandra Dutta has strong prima facie case to go for trial and has balance of convenience lies in his favour, is vitiated for non-consideration of relevant aspects of the matter. The learned executing court committed jurisdictional error in not considering as to whether the applicant has any prima facie case by establishing prima facie title with respect to the land in question when admittedly a suit instituted by him with respect to the land covered by the same Dag and Patta and mouza had earlier been decided against him. The finding of the learned trial court as to existence of strong prima facie case of the applicant before him, therefore, is not sustainable. It is accordingly set aside. 5. While the impugned order dated 22.01.2015 passed by the learned court at the instance of Ganesh Chandra Dutta in Misc. (J) Case No. 3/2015 is hereby set aside, that does not amount to conferring any right, title and interest on the basis of this order passed by this court in view of the fact that the very execution proceeding instituted by the petitioners herein without there being a decree at all in their favour prima facie appears to be illegal, void and not maintainable. Be it mentioned here that any observation made in this order as to merit of the pending proceeding under section 47 CPC being tentative shall not be binding on the executing court while passing necessary order in the pending proceeding.