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2015 DIGILAW 226 (JHR)

Binod Kumar v. Anisur Rahman

2015-02-11

SHREE CHANDRASHEKHAR

body2015
Order I.A. No.4040 of 2014 Mr. Manjul Prasad, the learned senior counsel appearing for the proposed intervenor submits that on 03.04.2013 by a registered sale deed, the premises in question has been purchased by the applicant from respondent no.2 and therefore, in order to protect his interest in the suit property flowing from Sale Deed dated 03.04.2013, he may be added as party-respondent in the present proceeding. 2. It is admitted by the counsel appearing for the parties that the applicant has yet to move an application under Order 1 Rule 10(2) CPC seeking his impleadment in Title Suit No.480 of 2011. Whether the applicant is a necessary party or a proper party in Title Suit No.480 of 2011 is a matter, which has to be adjudicated in the application, if any, filed by the applicant in the trial court. In this view of the matter I.A. No.4040 of 2014 is dismissed. However, a liberty is reserved with the petitioner to file appropriate application in Title Suit No.480 of 2011. It is made clear that dismissal of I.A. No.4040 of 2014 would not cause any prejudice to the applicant, as this Court has not expressed any opinion on the merits of the application. W.P. (C) No. 3475 of 2014 3. The present writ petition has been filed seeking direction for early disposal of application dated 13.09.2012 under Order XXXIX Rule 1 read with Section 151 CPC and for an order restraining the respondents from dispossessing the petitioner from the premises in question till the pendency of Title Suit No.480 of 2011. 4. Briefly stated, the facts as narrated in this writ petition are summerised thus; On 31.01.1963, a Registered Deed of Gift was executed in favour of respondent no.1Anisur Rahman, who came in actual possession of the suit property. He subsequently executed Registered Deed of Hiba (Gift) in favour of his wife Farzana Rahman @ Farzana Khatoon. However, a dispute arose with respect to right, title and interest over the property and a title suit being, Title Sit No.24 of 1975 was filed and an award was passed whereunder, the said Farzana Rahman @ Farzana Khatoon became absolute owner of the property constructed on the ground floor. The award was made Rule of Court on 30.06.1978 however, the respondent no.1 illegally sold the property to one Navin Kumar respondent no.3. The award was made Rule of Court on 30.06.1978 however, the respondent no.1 illegally sold the property to one Navin Kumar respondent no.3. It appears that the said Farzana Rahman @ Farzana Khatoon and respondent no.1 jointly sold the suit property to one Mr. Subodh Prasad, who came in actual possession of the property and got his name mutated in the government revenue and municipal records. The said Navin Kumarrespondent no.3 sold the property to one Javed Ahamad, who has been made respondent no.2 in the present proceeding. Subsequently, the said Javed Ahamad filed Title Eviction Suit No.40 of 2000 against the tenants namely, Chandrashekhar Arya and Urvesh Arya in which, an exparte order was passed on 27.05.2002. The Execution Case No.03 of 2003 was instituted, which was decreed vide order dated 27.05.2002. Thereafter, the petitioner purchased the suit property from the said Subodh Prasad in terms of family settlement. In view of the above facts, he filed a title suit being, Title Suit No.480 of 2011 seeking following declarations: A. “On adjudication the plaintiff's right, title and interest over the suit property described in schedule below be declared. B. It be declared that the sale deed dated 24.09.1987 executed by the Defendant no.1 in favour of the Defendant no.3 which has been entered in Book No.1 volume no.51 pages 341 to 349 being No.8118 of the office of the District Sub-Registrar, Ranchi are void, abinitio and are not binding on the plaintiff. The said sale deeds are also not affect the perfect right title of the plaintiff over the suit property. C. Plaintiff's possession over the suit property through the tenant be confirmed.” 5. In the meantime, on 07.05.2014 and 07.07.2014, a writ of delivery of possession was issued in terms of order dated 27.05.2002 whereby, the Title Eviction Suit No.40 of 2000 was decreed exparte. In view of the aforesaid, the petitioner has approached this Court. 6. Vide order dated 14.07.2014, this Court ordered that writ of delivery of possession shall not be executed. On subsequent dates, the interim order dated 14.07.2014 has been continued. On 22.08.2014, when the matter was listed before me, I ordered issuance of notice to respondent nos.2 and 3. Office report indicates that though the respondent no.2 has been validly served, respondent no.3 could not be served. The report of the process server indicates “address is not complete”. 7. Mr. On 22.08.2014, when the matter was listed before me, I ordered issuance of notice to respondent nos.2 and 3. Office report indicates that though the respondent no.2 has been validly served, respondent no.3 could not be served. The report of the process server indicates “address is not complete”. 7. Mr. Anil Kumar Sinha, the learned senior counsel for the petitioner submits that the address of Respondent No.3 in the Title Suit No.480 of 2011 has been given in the present proceeding. The learned counsel submits that insofar as, prayer made by the petitioner in the present writ proceeding is concerned, the petitioner is not seeking any relief against respondent no.3 and therefore, his name may be deleted from the array of respondents in the present proceeding though, he remains a party in the Title Suit No.480 of 2011. 8. Prayer is allowed. The respondent no.3 is deleted from array of parties, at the risk of the petitioner. 9. Heard the learned counsel appearing for the parties and perused the documents on record. 10. The learned senior counsel for the petitioner submits that though the petitioner is in possession of the premises in question, which is a hotel and the application dated 13.09.2012 was filed seeking an injunction, the same has not yet been finally decided and therefore, the petitioner was constrained to approach this Court. This Court granted interim protection to the petitioner on 14.07.2014. It is submitted that in view of exparte order in Title Eviction Suit no.40 of 2000, the writ of delivery of possession has been issued on 07.05.2014 and 07.07.2014 and therefore, a direction may be issued for early disposal of the injunction application. 11. From the materials brought on record, I am of the opinion that prayer seeking an order restraining the respondents from dispossessing the petitioner from the premises in question cannot be granted by this Court and the said prayer has to be considered by the trial court. However, it is desirable that the application under Order XXXIX Rule 1 read with Section 151 CPC is heard and finally decided at an early date. Mr. Rahul Gupta, the learned counsel for the respondent no.1 submits that the suit itself may be finally heard and disposed of. The learned senior counsel for the petitioner raises no objection to the early disposal of the suit. Mr. Mr. Rahul Gupta, the learned counsel for the respondent no.1 submits that the suit itself may be finally heard and disposed of. The learned senior counsel for the petitioner raises no objection to the early disposal of the suit. Mr. Manjul Prasad, the learned senior counsel appearing for intervenor also raises no objection however, he submits that any decision in the injunction application should be taken after deciding the application for impleadment/intervention filed by the applicant. 12. In view of the above facts and materials brought on record, the learned Sub-Judge, Ranchi in seisin with the matter is directed to hear and dispose of application dated 13.09.2012 under Order XXXIX Rule 1 read with Section 151 CPC expeditiously. In the meantime, the interim order dated 14.07.2014 shall continue for further six weeks. It is open to the petitioner to make appropriate application for grant of interim protection, in accordance with law. The trial court shall not grant adjournment to any party, if cause shown is not just. 13. The writ petition stands disposed of, in the above terms. Petition disposed of.