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2016 DIGILAW 349 (GAU)

Maina Das v. Union of India & others

2016-05-02

N.CHAUDHURY

body2016
N. Chaudhury, J.:-- By invoking the provision of Article 227 of the Constitution of India along with other provisions of the Code of Civil Procedure the present application has been preferred challenging the concurrent findings of the learned two courts below. The related facts are required to be stated at the threshold. 2. The present petitioner is plaintiff in Title Suit No.13/2015 in the court of learned Munsiff No.1, Morigaon against the opposite parties herein. It is pleaded that a plot of land measuring 3 lechas out of 4 katha 16 lechas covered by Dag No.174 of Jagiroad Revenue Town Kissam under mouza Gova in the district of Morigaon are described in schedule-A & B to the plaint. The father of the plaintiff, Ganga Ram Das, had been possessing the suit land since 1960 by constructing temporary structure and plaintiff has been continuing in possession of the land after death of her father. She is an Ayruvedic doctor and running her pharmacy in a house standing on Schedule-B land. The Circle Officer, Mayang Revenue Circle, issued a certificate in her favour showing that she has been in possession of the land. The defendant Nos.3 and 4 informed the plaintiff that the defendant No.2 would evict the plaintiff from the Schedule-B land within 3/4 days and accordingly on 30.01.2015 at about 1.00 P.M. principal defendant Nos.3 and 4 jointly went to the shop of the plaintiff and put a red 'X' mark on the pucca wall of the plaintiff and informed her that she would be evicted from the Schedule-B land within 3/4 days. Before doing so, no notice in accordance with law was issued to the plaintiff. Since the matter was an urgent one, the petitioner craved leave under Section 80(2) of the Code of Civil Procedure and thereupon instituted the suit for declaration of her possessory right over the suit land. However, no specific prayer has been made for decree of injunction either permanent or temporary. In the said suit the plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and prayed for an injunction restraining the opposite parties from entering into the Schedule-B land to evict the petitioner during the pendency of the suit. The application was registered and numbered as Misc.(J) Case No.16/2015. In the said suit the plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and prayed for an injunction restraining the opposite parties from entering into the Schedule-B land to evict the petitioner during the pendency of the suit. The application was registered and numbered as Misc.(J) Case No.16/2015. The learned trial court pending issuance of notice passed an ad-interim order dated 11.02.2015 directing the parties to maintain status quo. 3. Defendant Nos.1 to 4, who are the officers of the N.F. Railways, filed written objection against the injunction petition not only on merit but also on maintainability. In paragraph 4 of the application it was stated that the land belongs to the Railways and so it has statutory right to evict unauthorized occupants under provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. 4. The proforma defendants, who are officers of the State of Assam, filed a separate written objection. It is the case of the State respondents that the land belongs to the Railway authority. 5. The learned trial court after considering the pleadings of both sides passed order dated 19.06.2015 rejecting the application for injunction and directed trial of the suit. The aforesaid order dated 19.06.2015 was challenged by the plaintiff in Misc. Appeal No.3/2015 in the court of learned Civil Judge at Morigaon. The learned First Appellate Court after hearing the parties dismissed the appeal on 22.09.2015 holding that the suit land actually belongs to Railways and not the Government road-side land. The possession certificate issued by the Revenue Circle Officer at Mayang was not an authentic one, more particularly when the proforma defendants have not taken the stand that the suit land is Government land. According to the learned First Appellate Court, the plaintiff does not have any prima facie case and that public interest would be badly affected if injunction in the form of status quo is maintained. With these findings the appeal was dismissed. These two orders have been brought under challenge in the present revision petition. 6. I have heard Mr. D.C.K. Hazarika, learned counsel for the petitioner, Mr. A. Borkotoki, learned counsel for respondent Nos.1 to 4 and Mr. G. Sarma, learned Govt. Advocate, Assam appearing for respondent Nos.5, 6 and 7. I have perused the pleadings of the parties and the two orders passed by the learned courts below. 6. I have heard Mr. D.C.K. Hazarika, learned counsel for the petitioner, Mr. A. Borkotoki, learned counsel for respondent Nos.1 to 4 and Mr. G. Sarma, learned Govt. Advocate, Assam appearing for respondent Nos.5, 6 and 7. I have perused the pleadings of the parties and the two orders passed by the learned courts below. 7. It is the case of the present petitioner that her predecessor had entered into possession of the suit land in the year 1960 and since then the possession is with her. After death of her father she has continued possessing the same by erecting pucca structure and she has been running her pharmacy on the Schedule-B premises. According to her, she is in possession of a certificate issued by the Circle Officer of Mayang Revenue Circle and this is a testimony to the effect that land has been under her possession for long time. According to her, the land does not belong to the Railways. It is to be noted here that the plaintiff has not claimed title with respect to the suit land either by way of purchase or otherwise. It is also not the case of the plaintiff that she has been settled with the land. She says that since 1960 the land has been under possession of her family and so she has acquired right in regard thereto. A prayer has been made for passing a decree of her possessory right over the suit land. On the other hand, the State of Assam by filing a separate written objection has averred in no uncertain words that the suit land is a Railway land. The Railways by filing written objection has claimed that the land belongs to them and since the plaintiff is an unauthorized occupant, notices were issued to her under the provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The plaintiff did not appear before the Estate Officer and did not take recourse to the appropriate provision of law and instituted the suit. Under such circumstances, no prima facie case has been made out by the plaintiff. 8. Having noted the pleadings and counter-pleadings of the parties it appears that it is necessary to ascertain as to whether the land is Railway land or not. Under such circumstances, no prima facie case has been made out by the plaintiff. 8. Having noted the pleadings and counter-pleadings of the parties it appears that it is necessary to ascertain as to whether the land is Railway land or not. If it is a Railway land, in that event, Railway shall be at liberty to take recourse to the provision of law under the appropriate provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and they have specifically stated that they issued notice to the plaintiff in this regard. As pointed out above, it is the case of the plaintiff also that the defendant Nos.3 and 4 visited her house on a given date and marked her premises. She has been informed that she would be evicted from the premises. Under such circumstances plaintiff was compelled to institute the proceeding. But by instituting the suit the plaintiff has merely prayed for a decree of her possessory right without any prayer for consequential relief as required under proviso to Section 34 of the Specific Relief Act, 1963. The prayer for injunction made in the Misc. Case, therefore, prima facie, appears to be visited by two hindrances. Firstly, if the suit of the plaintiff is not maintainable in view of the provision of Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or, secondly, under proviso to Section 34 of the Specific Relief Act, 1963, in that event it cannot be said that the plaintiff has a prima facie case. This Court in the case of Shew Prasad Saha Kalway & others v. Chief Secretary, Govt. of Asam and others, reported in 2002 (2) GLT 51, held that trial court at the time of granting an injunction is required to look to the maintainability of the suit in view of the judgment of the Hon'ble Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and others, reported in (1993) 3 SCC 161 . Paragraph 8 of the judgment of the Division Bench of this Court is quoted below for ready reference :- "8. Before we proceed further, though it is not necessary, yet, to make the grounds clear, we should bear in mind the power of the appellate Court to interfere with the order of injunction. Paragraph 8 of the judgment of the Division Bench of this Court is quoted below for ready reference :- "8. Before we proceed further, though it is not necessary, yet, to make the grounds clear, we should bear in mind the power of the appellate Court to interfere with the order of injunction. That matter now no longer is res integra in view of single Bench decision of this Court reported in 1997(1) GLT 282 : (1997) 2 GLR 424 (Yamnam Yaima Singh & Anr. v. Ingom Jugin Singh & Ors.) and 1990 (Supp) SCC 727 (Wander Ltd. and Anr. v. Antox India P. Ltd.). The Supreme Court pointed out that the appellate Court will have the power to interfere with the decision of the trial Court only when it can be shown that the trial Court exercised the discretion arbitrarily or capriciously or perversely or where it can be shown that the trial Court ignored the settled principle of law regulating grant or refusal of interlocutory injunctions. The law also by now has been settled that the trial Court at the time of granting an injunction should look to the maintainability of the suit. No doubt, this finding of the trial Court shall be prima facie finding and if any authority is required for this proposition of law, one may have a look at (1993) 3 SCC 161 (Shiv Kumar Chadha v. Municipal Corporation of Delhi and others) where the Supreme Court pointed out as follows :- "Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Further the Court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court." 9. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court." 9. As pointed out above, the suit of the plaintiff, prima facie, appears to be barred under Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 as well as under proviso to Section 34 of the Specific Relief Act, 1963. Under such circumstances, it cannot be said that the plaintiff/petitioner has prima facie case for getting injunction. Moreover, since an action has already been initiated by the Railway authorities for eviction, the public interest also may militate against the prayer of the present petitioner and so in that event the condition precedent for getting ad interim injunction cannot be said to have been satisfied in the present case. The learned courts below have considered all aspects applicable to the case in hand and thereafter arrived at the considered opinion that petitioner does not have a prima facie case in her favour and that public interest is against passing of the order of injunction as prayed for. 10. In view of what has been stated above, this Court does not find any scope to interfere with the concurrent findings of the learned courts below and accordingly the revision petition cannot be admitted. It is accordingly dismissed. No order as to cost. 11. Before parting, it is to be made clear that any observation made in this order shall not influence the learned court while deciding the suit and dismissal of this revision petition also shall not disentitle the petitioner from pursuing appropriate statutory remedy, if available. ---------