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2015 DIGILAW 548 (GAU)

DINESH CH. DAS v. GITANJALI PATGIRI @ GOSWAMI

2015-05-12

SUMAN SHYAM

body2015
JUDGMENT : 1. This application has been filed by the appellants in RSA No.136/2014 seeking an order of temporary injunction restraining the OPs/respondents from occupying the Schedule-D land of the suit and/or doing any construction work in the suit land until disposal of the Second Appeal. 2. The brief background facts leading to the present application for temporary injunction is that the applicants as plaintiffs had preferred Title Suit No.451/2007 in the Court of learned Civil Judge (Junior Division) No.1, Kamrup at Guwahati, inter alia, praying for a decree in favour of plaintiff Nos.1 and 2 i.e. the present applicants as well as the defendant Nos.1 and 3 to 7 declaring their joint ownership of the suit property; a decree for cancellation of registered deed of sale bearing No.3735 dated 21.03.2007 executed by defendant No.1 in favour of defendant No.2 transferring the Schedule-D land; decree for a permanent injunction, decree for ejectment of the defendant No.2 from the suit property and recovery of khas possession and other consequential relief. 3. The basic case of the plaintiffs/applicants herein is that land measuring 8.80 Are originally belonged to the predecessor of the plaintiffs Late Mohan Chandra Das. Mohan Chandra Das died leaving behind five sons and one daughter as his legal heirs. The aforesaid land measuring 8.80 Are was held in ejmali by the legal heirs of Late Mohan Chandra Das. However, Paresh Chandra Das, one of the sons of Late Mohan Chandra Das had been allotted an area of land measuring 2.60 Are and subsequently the said Paresh Chandra Das had been in possession of the said plot of land in respect of which a separate patta had also been issued in his favour. It is the case of the plaintiffs that the daughter Smti. Kanchan Bala Das had relinquished her claim over the ancestral property. Therefore, the remaining area of land measuring 6.20 Are was required to be divided equally amongst the four brothers, viz., the plaintiff Nos.1, 2, Gajen Chandra Das and Deven Chandra Das i.e. amongst the legal heirs of Mohan Chandra Das except Paresh Chandra Das. The claim of the plaintiffs is that although the said ancestral property had not been partitioned amongst the legal heirs yet purportedly acting on the basis of a deed of family settlement dated 08.05.2005 the defendant No.1, Smti. The claim of the plaintiffs is that although the said ancestral property had not been partitioned amongst the legal heirs yet purportedly acting on the basis of a deed of family settlement dated 08.05.2005 the defendant No.1, Smti. Gitanjali Patgiri, daughter of Gajen Chandra Das had transferred land measuring 2.63 Are in favour of the defendant No.2, Sandip Agarwalla by means of registered deed of sale dated 21.03.2007. 4. The defendant Nos.1 and 2 contested the suit by filing written statement thereby denying the claim made by the plaintiffs. By the judgment and decree dated 27.01.2002 the trial Court had dismissed the suit filed by the plaintiffs/applicants on the grounds and reasons mentioned therein. Being aggrieved by the judgment and decree dated 27.01.2002 passed by the trial Court, the applicants as appellants had preferred Title Appeal No.19/2002 which was also dismissed by the First Appellate Court by the judgment and decree dated 12.11.2013. Being aggrieved by the concurrent judgment and decree passed by the First Appellate Court in Title Appeal No.19/2012 the applicants as appellants have preferred RSA No.136/2014 before this Court which was admitted to hearing by this Court on 02.05.2014 by framing the following two substantial questions of law :- “i) Whether Ext.D3, being an unregistered deed of family settlement, would have conferred title to the defendant No.1? ii) Whether the learned Court below committed error in construing Ext.2 (registered sale deed No.3735/2007 dated 21.03.2007) ?” 5. I have heard Mr. K. Sarma, learned counsel for the applicants and also heard Mr. S. P. Roy, learned counsel appearing for the opposite parties. 6. Mr. Sarma, learned counsel for the applicants, submits that since the area of land measuring 6.20 Are was an ejmali land held by the legal heirs of Late Mohan Chandra Das, hence in the absence of proper partition of the said property the defendant No.1 being the daughter of Late Gajen Chandra Das i.e. one of the sons of Late Mohan Chandra Das did not have any authority or competence in the eye of law to execute the sale deed in favour of the defendant No.2/OP No.2 Sandip Agarwalla. Such being the position, the defendant/OP No.2 cannot be said to have acquired any right, title and interest over the land described in the Schedule-D to the plaint. 7. Mr. Such being the position, the defendant/OP No.2 cannot be said to have acquired any right, title and interest over the land described in the Schedule-D to the plaint. 7. Mr. Sarma submits that this Court has already admitted the Second Appeal by framing substantial questions of law. If during the pendency of the Second Appeal the defendant No.2 is permitted to raise construction over the land in question or alienate the property by creating any third party right then the same would not only alter the nature and character of the land in question but would also lead to multiplicity of suits and proceedings. He, therefore, submits that the applicants/appellants has a strong prima facie case to go for trial, the balance of convenience is also in favor of the applicants and against the respondents/OPs. Mr. Sarma also submits that if the nature and character of the suit land is altered permanently during the pendency of the appeal then the same would lead to irreparable loss and injury to the rights and interest of the applicants since their respective shares and the question of separate possession is yet to be decided by a competent court in accordance with law. 8. Refuting the arguments made by Mr. Sarma, Mr. S. P. Roy, learned counsel for the OPs/defendant Nos.1 and 2 firstly argued that there is no merit in the application seeking temporary injunction. He submits that the applicants have approached this Court by making deliberate false and misleading statements on oath only to get a favourable order from this Court. Drawing the attention of this Court the submissions made in paragraphs 12, 14, 15 and 18 of the plaint as well as those made in paragraphs 2, 3 and 4 of the application for temporary injunction, Mr. Roy submits that the applicants have made mutually inconsistent statements as regards the question of possession of the disputed land insofar as the defendants are concerned. While in the pleadings contained in the plaint it has been admitted that the defendant No.2 is in possession of the suit land whereby preparations have also been initiated for making construction over the land, in the application for temporary injunction averments have been made saying that his clients are yet to take over possession of the disputed plot of land. Mr. Mr. Roy submits that it is settled law that injunction being a relief in equity, one who seeks such a relief must approach the Court with clean hands. Since the applicants have approached this Court by suppressing material facts and by making deliberate false statements, hence the application for temporary injunction needs to be thrown out on this ground alone. In support of his submission Mr. Roy has relied upon and referred to decision of the Hon’ble Supreme Court reported in (2005) 4 SCC 605 [MCD vs. State of Delhi and another]. 9. Mr. Roy further submits that the cardinal principles for granting temporary injunction is that three ingredients, viz., strong prima facie case, balance of convenience and irreparable loss must exist in a chain. In a decision of this Court reported in 1994 (2) Gauhati Law Journal 202 [Md. Safiulla Wakf Estate & another vs. Smti. Sara Devi Agarwalla] this Court has held that the three cardinal principles must exist in a chain for the purpose of enabling the Court to grant an order of temporary injunction. In the instant case, none of these three principles exist in favour of the applicants and as such the application for temporary injunction being totally devoid of merit is liable to be dismissed. Mr. Roy further submits that his client having purchased the land by means of a registered deed of sale for valuable consideration is already in possession of the land which fact is also admitted in the plaint. As such, if an order of injunction is passed at this stage curtailing the right of enjoyment of the property by his client then in that event the same would cause irreparable loss and injury to the interest of his client. On the aforementioned grounds Mr. Roy, therefore, assiduously argued for dismissal of the application for temporary injunction. 10. I have considered the rival submissions made by and on behalf of the parties. The undisputed fact that emerges from the record is that the predecessor-in-interest of the plaintiffs/applicants i.e. Late Mohan Chandra Das was the original owner of 8.80 Ares of land. As per the pleadings contained in paragraph 29(vii) of the written statement filed by and on behalf of the OP/defendant No.1, Smti. The undisputed fact that emerges from the record is that the predecessor-in-interest of the plaintiffs/applicants i.e. Late Mohan Chandra Das was the original owner of 8.80 Ares of land. As per the pleadings contained in paragraph 29(vii) of the written statement filed by and on behalf of the OP/defendant No.1, Smti. Gitanjali Patgiri, Paresh Chandra Das had separated his share out of the total land measuring 8.80 Are and obtained a separate Dag No.1412 with respect of 2.60 Are keeping the rest 6.20 Are in the name of the remaining legal heirs. What is therefore, evident is that after the separation of land made in favour of Paresh Chandra Das land measuring 6.20 Are only remained in the share of the remaining legal heirs. The OP/defendants’ claim is that the said plot of land measuring 6.20 Are have been partitioned amongst the remaining legal heirs by means of deed of family settlement dated 08.05.2005 pursuant whereto the defendant No.1, Smti. Gitanjali Patgiri came to be the owner of Schedule-A land mentioned therein to the exclusion of right, title and interest of others. It is the case of the OP/defendants that by means of a registered deed of sale dated 21.03.2007 the defendant No.1 had transferred her share of land as acquired on the basis of the deed of family settlement dated 8.05.2005 in favour of the OP/defendant No.2. 11. A perusal of the deed of family settlement goes to show that the said document had been signed by four parties, namely, (1) Dinesh Chandra Das, (2) Hem Chandra Das, (3) Paresh Chandra Das and (4) Gitanjali Patgiri. Although the said family settlement agreement mentions that land described in Schedule-A would fall in the share of Smti. Gitanjali Patgiri, yet Schedule-A does not indicate what is the total area of land covered by Dag No.714 of Patta No.456 that had been allotted to the defendant No.1. On a pointed query made by this Court Mr. S. P. Roy, learned counsel for the OP/defendants, was unable to draw the attention of this Court to any material on record so as to indicate as to what was the area of land that was allotted to Smti. Gitanjali Patgiri pursuant to the agreement for family settlement dated 8.5.2005. On a pointed query made by this Court Mr. S. P. Roy, learned counsel for the OP/defendants, was unable to draw the attention of this Court to any material on record so as to indicate as to what was the area of land that was allotted to Smti. Gitanjali Patgiri pursuant to the agreement for family settlement dated 8.5.2005. If the version of the defendants as pleaded in the written statement is to be believed then the area of land measuring 6.20 Are is required to be divided between four legal heirs. If that be the case, the share of Gitanjali Patgiri will be less that 2.63 Are. However, it is the admitted position of fact that by means of the registered deed of sale dated 21.03.2007 the defendant No.1 had transferred the Schedule-D land measuring 2.63 Are in favour of the defendant No.2. If land measuring 6.20 Are is divided into four parts then each part will constitute less than 2.63 Are. The learned counsel appearing for the OPs/defendants could not indicate anything to explain as to how Gitanjali Patgiri had acquired exclusive right, title and interest over 2.63 Are of land since nothing has been mentioned showing the precise quantum of land in the family arrangement. 12. In the absence of any clarity as regards the entitlement of Smti. Gitanjali Patgiri in the ancestral property or any indication as to how she had acquired exclusive right, title and interest over the plot of land sold by her to Sandip Agarwalla, this Court is of the opinion that there is prima facie case existing in favour of the applicants. Further, since the Second Appeal in question has already been admitted by this Court and having regard to the substantial question of law No.1 that has been framed by this Court, I am of the opinion that the balance of convenience is also in favour of the applicants/ appellants and if a limited order of injunction protecting their interest is not granted, then, the same would not only cause irreparable loss and injury to the applicants/appellants but may also lead to multiplicity of suits and legal proceedings. 13. At this stage Mr. 13. At this stage Mr. S. P. Roy, learned counsel for the OPs/defendants submits that he is ready to give an undertaking on behalf of his clients that the suit land will not be alienated nor would any construction be made thereupon by his client pending disposal of the connected Second Appeal. 14. Mr. Sarma, learned counsel for the applicants/appellants, submits that if the said position is maintained by the OP/defendants then his clients would be satisfied. 15. In view of the above, this miscellaneous application is disposed of by issuing a temporary injunction restraining the OP/respondents from alienating the suit land in any manner or from creating any third party right in respect thereof pending disposal of the connected Second Appeal. The OPs/respondents are also restrained from raising any construction of permanent nature over the suit land pending disposal of the Second Appeal. It is, however, made clear that in the event the applicants/appellants fails in the Second Appeal, then, in that event the OP/defendant No.2 would be at liberty to move the Court for damages and compensation by making out a case to show that they have suffered such loss and damages due to the delay in commencing construction work over the suit land purchased by registered deed dated 21.03.2007. Misc. Case stands disposed of accordingly.