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2016 DIGILAW 300 (GAU)

Umesh Deka v. Assam State Transport Corporation

2016-04-20

N.CHAUDHURY

body2016
ORDER : 1. Heard Mr. D.C.C. Phukan, learned counsel for the petitioner and Mrs. U. Baruah, learned senior counsel assisted by Mr. U. Choudhury, learned counsel for the opposite parties. 2. In this application under Article 227 of the Constitution of India the petitioner has challenged the appellate order dated 26.02.2015 passed by learned Civil Judge, Morigaon in Misc. Appeal No. 2/2014 whereby the learned Civil Judge allowed the Misc. Appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure and set aside the order dated 29.05.2014 passed by learned Munsiff No.1, Morigaon in Misc. (J) Case No.6/2014 arising out of Title Suit No.8/2014 of that court. The learned Munsiff by his order dated 29.05.2014 allowed the application under Order XXXIX Rules 1 & 2 of the CPC and directed the parties to maintain status quo with respect to the suit property. This order was brought under challenge before the learned First Appellate Court by the defendants and thereupon the learned First Appellate Court set aside the order passed by the learned trial court. This appellate order is under challenge in the present revision petition. 3. The petitioner herein as plaintiff instituted Title Suit No.8/2014 in the court of learned Munsiff No.1 at Morigaon against the Assam State Transport Corporation and its Superintendent at Jagiroad Station stating that the suit land described in the schedule to the plaint is his patta land which he inherited from his father. His name has been duly mutated in the records of right but the defendants forcefully entered into the suit land on 01.11.2013 by filling earth and erecting some temporary sheds. The defendants do not have any semblance of right, title and interest with respect to the suit land and they being trespasser are liable to be evicted from the land described in Schedule-A to the plaint. In the said suit the plaintiff also filed an application under Order XXXIX Rules 1 & 2 of the CPC praying for ad interim injunction restraining the opposite parties from entering into the suit land and from changing the nature and feature of the suit land by way of making permanent construction or otherwise. This application was registered as Misc. (J) Case No.6/2014. 4. The opposite parties submitted objection thereto and contested the prayer for injunction. This application was registered as Misc. (J) Case No.6/2014. 4. The opposite parties submitted objection thereto and contested the prayer for injunction. It is the case of the opposite parties that the State Transport Department took possession of the suit land at Jagiroad for operation of the passenger transport services for the convenience of the public in general in the year 1954 and constructed office building and staff quarters in between 1956 to 1960 by developing the said plot of land and since then the State Transport Department was in possession of the land till 31.03.1970. Thereafter, the said land and buildings were handed over to the Assam State Transport Corporation. It is pleaded in paragraph 27 of the written objection that land of the ASTC Station at Jagiroad including the suit land described in Schedule ‘A’ to the plaint is within the boundary wall constructed by erstwhile State Transport Department, Govt. of Assam, at the time of taking possession of the land and as such the suit and the injunction petition are liable to be dismissed. The opposite parties further pointed out that although the name of the plaintiff appears in the records of right with respect to 2 Katha 5 Lechas of the suit land belonging to the State Transport Corporation, an application was filed before the Revenue authority vide Misc. Case No.2/2003-04 praying for cancellation of mutation of the plaintiff but the revenue authority by order dated 12.01.2004 rejected the prayer, however, after observing that the land has been under possession of the opposite parties for 32/33 years last. The land was in possession of the erstwhile State Transport Department since 1956 to 31.03.1970 and since thereafter and till date it has been under possession of the opposite parties. With these pleadings the opposite parties prayed that the prayer for injunction be rejected. 5. The learned trial court after considering the submissions of both sides passed order dated 29.05.2014 observing, inter-alia, that the plaintiff had established prima facie case to get injunction as he is the recorded owner of the suit land. Having pleaded that the defendants entered into the suit land on 01.11.2013 by filling earth and erecting some boundary sheds, the plaintiff has raised triable issues. Having pleaded that the defendants entered into the suit land on 01.11.2013 by filling earth and erecting some boundary sheds, the plaintiff has raised triable issues. Coming to the question of balance of convenience, the learned trial court has held that if the injunction as prayed for is not granted then not only this would cause inconvenience to both sides but also possibility of creating third party right would be there and in the process there would be multiplicity of proceedings. Accordingly, it was held that unless injunction is granted there will be irreparable loss and injury and accordingly parties were restrained from transferring and alienating the suit land in any manner till the disposal of the suit and to maintain status quo in respect of the suit land as on that date. 6. Aggrieved by the order dated 29.05.2014 passed by the learned Munsiff, the Assam State Transport Corporation and another preferred the aforesaid Misc. Appeal before the learned Civil Judge at Morigaon. The learned Civil Judge having re-appreciated the materials available on record laid emphasis on the aspect of possession of the suit land. Having arrived at the finding that the plaintiff is not in possession of the suit land for over 32/33 years the case of the plaintiff that defendants had trespassed into the suit land on 01.11.2013 was not believed by the learned First Appellate Court. Accordingly, it was held that there is no prima facie case in favour of the plaintiff. The learned First Appellate Court also considered that because of the long possession over the suit land the Assam State Transport Corporation has already set up office building and staff quarter and so in case injunction as prayed for is granted then they will be debarred from erecting their pucca structure and so the materials collected by the appellants for the purpose would ultimately get damaged. Having considered the aforesaid facts the learned First Appellate Court also took into consideration that there is an element of public interest involved in the matter. The defendants are none other than the instrumentalities of the State discharging public duties and so public interest would be adversely affected because of the impugned order passed by the learned Munsiff and accordingly the same was set aside by judgment and order dated 26.02.2015. 7. The defendants are none other than the instrumentalities of the State discharging public duties and so public interest would be adversely affected because of the impugned order passed by the learned Munsiff and accordingly the same was set aside by judgment and order dated 26.02.2015. 7. The plaintiff as petitioner has preferred this revision petition challenging the first appellate order and this Court while issuing notice of motion on 27.03.2015 after having considered the materials on record passed an interim order directing that the parties shall not create any third party interest over the suit property until further orders. 8. I have heard Mr. D.C.C. Phukan, learned counsel for the petitioner on the revision petition. Mr. Phukan urges that the land was never handed over to the defendants by the erstwhile State Transport Department. The suit land is covered by Dag No.862 which stands in the name of the petitioner’s father and this is how he has inherited the same. The suit land is a patta land and it cannot be a property of the defendants in any way and under such circumstances the question of public interest cannot arise. 9. Per contra, Mrs. U. Baruah, learned senior counsel for the opposite parties, would argue that the possession of the opposite parties over the suit land for a period over 32/33 years is a matter of record. Way back on 12.01.2004 when the revenue officer had rejected the mutation case No.2/2003-04 on the ground of limitation it was very much observed that the land has been in possession of the ASTC for 32/33 years. Under such circumstances the plaintiff not being in possession of the suit land for 32/33 years was not entitled to get mutation with respect to the suit land. The plaintiff did not produce the copy of the patta or any other document of title to show that title had devolved on them in any manner. Be that as it may, during the last 32/33 years the ASTC by erecting permanent structures of staff quarters and office building running public utility services and if an injunction is granted then it is the public who shall ultimately suffer as there will be no parking place for the vehicles of the ASTC. With these submissions the learned counsel for the opposite parties prays that the revision petition be dismissed upholding the order passed by the learned First Appellate Court. With these submissions the learned counsel for the opposite parties prays that the revision petition be dismissed upholding the order passed by the learned First Appellate Court. 10. On the earlier occasion when the learned counsel for the petitioner had strenuously urged that the findings of the learned First Appellate Court is perverse and it was noticed that the defendants claimed the suit land to be covered on all sides by boundary wall this Court passed an order directing the learned Munsiff, Morigaon to hold an enquiry and to find out as to whether the suit land is within the boundary walls of the ASTC campus. The learned Munsiff has held a local inspection in presence of the parties and their respective counsel and thereupon has submitted a report. In the report the learned Munsiff has observed that the suit land is covered on the north, west and south by brick walls and the eastern boundary of the suit land is bounded by public road. It has also been mentioned that inside the suit land ASTC staff quarters are situated on the western side and the same are in existence since 1976 as per the statement of the plaintiff. However, defendants claimed that the quarter was built in 1960. The learned Munsiff has also found a new ASTC office building on the suit land which was constructed in 2015 as per the statement of the plaintiff and as per the defendants the same was built in the year 2013. The rest of the suit land is vacant and private cars/vehicles of ASTC employees were kept parked at the time of inspection. It is also noted that the suit land has on its northern side ASTC urinal and Station building and on the western side there is a house of one Priya Nath Neog. The house of one Gosai Deori is situated on the southern side while the eastern side is bounded by public road. A sketch map has also been annexed to the report. 11. Having gone through the report and on perusal of the sketch map prepared by the learned Munsiff, Morigaon, it appears that the suit land is bounded on three sides by old brick walls. The report further shows that the boundary wall was claimed to have been built by the defendants whereas the plaintiff expressed his ignorance as to who had built the brick walls. The report further shows that the boundary wall was claimed to have been built by the defendants whereas the plaintiff expressed his ignorance as to who had built the brick walls. Considering all these facts and circumstances and in view of the order passed by the revenue authority on 12.01.2004 it appears probable that the land has been under possession of the defendants for 32/33 years. The land has been put to the use of Assam State Transport Corporation which is discharging public functions. The First Appellate Court has not committed any error in holding that public interest would be adversely affected if an injunction is granted. Be that as it may, the interim order granted by the learned Munsiff was in two parts. By the first part the parties were directed not to create any third party right by transferring or alienating the suit land in any manner and by the second part parties were directed to maintain status quo with respect to the possession of the suit land. Even this Court while issuing notice of motion has directed the parties not to create any third party interest and having heard the learned counsel for the parties and on perusal of the materials available on record it appears that the first part of the injunction order of the learned Munsiff cannot in any way be contrary to public interest. But it is at the same time correct that if the ASTC is restrained from making further construction or freely using the suit land as they have allegedly using for last 32/33 years, the functioning of the ASTC may be adversely affected which in turn would be adverse to the public interest. Admittedly, plaintiff is not in possession of the suit land and that is why a prayer has been made for recovery of possession. It is also apparent on the showing of the petitioner himself that way back on 12.01.2004 the revenue authority had found the defendants to be in possession for over 32/33 years. In that view of the matter I do not feel that plaintiff has succeeded to make out a prima facie case to get injunction. The balance of convenience also cannot be in favour of the plaintiff in any way in view of preponderance of public interest. 12. Accordingly, the revision petition stands disposed of. In that view of the matter I do not feel that plaintiff has succeeded to make out a prima facie case to get injunction. The balance of convenience also cannot be in favour of the plaintiff in any way in view of preponderance of public interest. 12. Accordingly, the revision petition stands disposed of. The interim order passed by this Court at the time of issuance of notice of motion is hereby maintained. It shall remain in force till the suit is decided on merit. It is needless to say that the observations made hereinabove are tentative and subject to final decision of the suit. The learned trial court shall not be influenced by these observations made by this Court or the learned First Appellate Court in regard to possession and title of the parties while deciding the suit on merit. No order as to cost.