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2016 DIGILAW 657 (CAL)

Sumati Das v. Bidhan Talukdar

2016-08-19

SAHIDULLAH MUNSHI

body2016
JUDGMENT : Sahidullah Munshi, J. 1. This revisional application is directed against order dated 29th April, 2014, passed by the learned Civil Judge (Senior Division), Baruipur, in Misc. Appeal No.19 of 2013, thereby reversing the order passed by the learned Trial Court granting an order of temporary injunction in the form of status quo. The plaintiff in a suit for declaration and permanent injunction is the petitioner in this revisional application. The plaintiff claimed that he is the absolute owner and in possession of the demarcated 161/2 decimals of land and property appertaining to Mouza Rajpur, more fully and particularly described in the Schedule of the plaint. In the said suit the plaintiff filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. In the temporary injunction application it is the plaintiff’s case that she has purchased the suit property vide Registered Deed No.422 dated 1st February, 1972, measuring about 161/2 decimals from one Kanak Chandra Nath. After purchase of the same the plaintiff has converted some portion of the said property into a tank on the southern side of the suit plot and on the high land she constructed a mud-built tile shed structure. The plaintiff and her family members have been possessing the suit property, continuously and uninterruptedly since the purchase on 1st February, 1972. It has been stated that, although, the defendant no.1 has no manner of title and possession over the suit property he is trying to disturb the possession of the plaintiff by his overt act for which the plaintiff made General Diary with the local police station twice. According to the plaintiff, the defendant even attempted to trespass over the plaintiff’s land. The plaintiff has further stated that demarcated Western part of the suit plot originally belonged to Smt. Hansi Bala Dey and her husband, Nani Gopal Dey (since deceased). His legal heirs are proforma defendant nos.2 to 4. Against such proforma defendants the plaintiff has sought no relief. The said Hansi Bala Dey filed a suit being Title Suit No.349 of 1989 in which they admitted title and possession of the plaintiff in the suit property. The said suit was, ultimately, dismissed. 2. Appearing in support of the plaintiff/petitioner Mr. Against such proforma defendants the plaintiff has sought no relief. The said Hansi Bala Dey filed a suit being Title Suit No.349 of 1989 in which they admitted title and possession of the plaintiff in the suit property. The said suit was, ultimately, dismissed. 2. Appearing in support of the plaintiff/petitioner Mr. Sahoo has drawn the attention of this Court that entire plot being Dag No.539 contains a total of 2.03 acres of land of which the plaintiff has a demarcated portion of 161/2 decimals equivalent to 10 cottahs of land. He has drawn attention of this Court on the documents which were filed before the Court below one of which is the injunction application filed by Smt. Hansi Bala Dey in Title Suit No.349 of 1989 wherein it was admitted that defendant in that suit, namely, Sumati Bala Das & Ors. had their land measuring 10 cottahs on the South-Eastern corner of plot no.539. It has been also stated that on the West of that 10 cottahs of land Smt. Hansi Bala Dey had remaining land in plot no.539 out of 2.03 acres. The said Hansi Bala Dey is proforma defendant in the present suit. 3. With regard to the order of the status quo passed by the learned Trial Court Mr. Bhattacharya, appearing for the opposite parties, has drawn the attention of this Court to a reported judgment in the case of Kishore Kumar Khaitan & Anr. – Vs. – Praveen Kumar Singh reported in (2006)3 SCC 312 . Referring to the aforesaid judgment Mr. Bhattacharya submitted that when a Court passes an order of injunction in the form of status quo it must specify about the status of the property and as to who is in possession thereof. But, in the present case, the learned Civil Judge (Junior Division) had failed to mention the same. However, without repetition it can be mentioned that plaintiff in her application for injunction, has sufficiently averred that she is in possession of the land and when the learned Court below has mentioned in the order the he is passing the order of injunction in the form of status quo, after perusal of those documents it goes without saying that the Court below was of the view that the plaintiff was in possession of the suit property on the date of passing the order of status quo. 4. Mr. 4. Mr. Bhattacharya, appearing for the opposite parties, has drawn the attention of this Court to the written statement filed by the defendants in the suit wherein a defence has been taken that whether the plaintiff is the owner of the suit land and whether it previously belonged to Hansi Bala Dey or not is a matter of record. It has been pointed out from the written statement that in between the parties in the suit there was a Solenama on 25th September, 1969 and in pursuance of such Solenama one Atal Behari Pal acquired 1 bigha 14 cottah 2 chhitak i.e., 57 decimals of land in the aforesaid plot being No.539 and the rest 1.467 acre land was acquired by Hemanta Kumar Ghosh. The said Solenama is still valid and has never been challenged in Court. According to their Solenama, Hemanta Kumar Ghosh and/or his legal heirs transferred 1.11 acre of land to Hansi Bala Dey by Registered Deed on 7th February, 1976. Acquiring title from the said Solenama Atal Behari Pal transferred 57 decimals of land by a Registered Deed to Sabitri Pal. According to Mr. Bhattacharya, petitioner’s vendor, Kanak Nath had no scope to acquire any land in the suit plot and, therefore, had no transferrable title to the petitioner. Even if the plaintiff has purchased any land in the plot in question by any Deed the same is a void Deed and/or obtained fraudulently. It has been pointed out in the written statement that in the recital of the Deed of purchase of the petitioner it has been mentioned that Kanak Nath purchased the land from Debendra Nath Paul but Debendra Nath Paul had no share in plot no.539. According to the defendant, therefore, the plaintiff had acquired no title in the said plot. The aforesaid injunction application has been disposed of by the learned Trial Court by an order dated 30th April, 2013 and on considerations of the materials on record and rival contentions of the parties and particularly that both the parties have claimed title over the property and filed documents in support thereof, came to a conclusion that until title is decided the property should be preserved in its present state. Accordingly, the learned Trial Court directed both the parties to maintain status quo as regards nature, character and possession of the suit property as existed on the date of passing of the said order. Being aggrieved by the said order passed by the learned Trial Court, the defendants/opposite parties filed Miscellaneous Appeal No.19 of 2013. After a contested hearing, the said appeal has been disposed of by the learned Appellate Court below holding, inter alia, that – “it is doubtful whether Debendra Nath at all had any legal right, title and interest over the suit property. On the contrary, the Sale Deed No.5628 dated 22.11.1995, reveals that defendant/appellant purchased the suit property from Hansi Bala Dey, who purchased the same from heirs of Hemanta Kumar Ghosh by way of Registered Sale Deed No.790 dated 4.11.1975.” The learned Appellate Court below further held – “at that stage there are no other documents from which this Court can ascertain that Debendra Nath Paul has absolute right, title and interest over the suit property which was transferred to Kanak Nath.” The learned Court has further held – “the alleged injury sustained by plaintiff can be adequately compensated by monetary relief.” On the above considerations the learned Appellate Court below had allowed the appeal and set aside the order passed by the learned Trial Court. On perusal of the order passed by the learned Appellate Court below and on perusal of the documents relied upon by the plaintiff and the averments made in the injunction application this Court cannot agree with the finding of the learned Appellate Court below for the reasons – 1. In an application for temporary injunction, Court is required to take into consideration first of a prima facie case but not of prima facie title; 2. The Court is required to see the balance of convenience and inconvenience in favour of the grant of injunction and 3. Irreparable loss and injury which might be suffered by the plaintiff. 5. So far the first ground is concerned, this Court finds that the plaintiff has made out a prima facie case by relying upon a document where Hansi Bala Dey admitted his possession in respect of the demarcated 10 cottahs of land. In this connection, Mr. Sahoo has relied upon a decision in the case of Mohammed Seraj – Vs. – Adibar Rahaman Sheikh & Ors. In this connection, Mr. Sahoo has relied upon a decision in the case of Mohammed Seraj – Vs. – Adibar Rahaman Sheikh & Ors. reported in AIR 1968 CAL 550 where this Hon’ble Court held that an admission is not conclusive even if a matter admitted under Section 31 of the Evidence Act. The maker of the admission is at a liberty to prove that it was made under a mistake where, however, no attempt is made to prove it so, it is strong evidence against the maker and his Successor-in-Interest whom it binds. Relying upon this judgment Mr. Sahoo submitted that admission made by Hansi Bala Dey is binding upon her successors. Mr. Sahoo has also submitted another decision in the case of Nagindas Ramdas – Vs. – Dalpatram Iccharam alias Brijram & Ors. reported in AIR 1974 SC 471 . Drawing attention of the Court to paragraph 26 of the said judgment of the Hon’ble Apex Court Mr. Sahoo has submitted that admissions, if true and clear and by far the best proof of facts admitted. Admissions and pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. Paragraph 26 of the said judgment is set out below :- “26. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.” 6. It further appears from the injunction application that the plaintiff produced the Registered Deed of purchase before the learned Court below. Whether or not the vendor of the petitioner had a transferrable title is a subject to be investigated at the trial of the suit but not at the interlocutory stage. The petitioner has also annexed a copy of the rent receipt in respect of the suit land which shows that Smt. Sumati Das, the plaintiff herein, has been paying rent for the suit land on behalf of Kanak Chandra Nath. So far the balance of convenience and inconvenience is concerned, this Court is of the view, the learned Appellate Court has failed to appreciate the finding made by the learned Trial Court and has been allowed itself to be swayed by the submissions of the defendants that the plaintiff has no title to the property. Therefore, it needs not go to weigh the balance of convenience and inconvenience. The learned Appellate Court below ought to have considered that when a person is apprehending dispossession from her property which she is using as her residence and she has made repeated diaries against the defendant before the police authorities, plaintiff’s case for temporary injunction should have been considered seriously. Lastly, the learned Appellate Court ought to have considered the irreparable loss and injury because if the plaintiff is dispossessed from her residential place it may not be compensated by money. The power conferred under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction or refusing temporary injunction is, no doubt, discretionary but such discretion has to be exercised in accordance with reasons and sound judicial principles. The power conferred under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction or refusing temporary injunction is, no doubt, discretionary but such discretion has to be exercised in accordance with reasons and sound judicial principles. An injunction is a judicial process whereby the party is required to do or to refrain from doing any particular act. Its main object is to preserve the subject-matter of the suit in status quo for the time being and which had been rightly done by the learned Trial Court. From the finding of the learned Appellate Court below it is apparent that the learned Appellate Court below has taken the responsibility of investigating the title of the plaintiff against the defendant no.1 in respect of the suit property which is not the job of the Court at the interlocutory stage. Hon’ble Apex Court in the case of Agarwalla – Vs. – Tarkeshwar Prasad reported in AIR 2001 SC 2367 has held that it may not be appropriate for any Court even to hold a mini trial at the stage of grant of temporary injunction. 7. This Court finds that while allowing the appeal the learned Appellate Court below was in doubt as regards title of the parties and on this doubtful assertion the Court ought not to have denied injunction in favour of the plaintiff. The learned Appellate Court is also not correct in its finding that alleged injury sustained by the plaintiff can be adequately compensated by monetary relief. This Court is of the view that in an injunction hearing the Court should not have ventured to investigate about the title of the parties and it should have followed clauses (a), (b) and (c) of Order XXXIX Rule 1 regarding the principle on which temporary injunctions are being issued. In the present case, the learned Appellate Court below has confused itself about the powers of the Court under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure with that of the actual relief claimed by the petitioner in the plaint. 8. The order impugned is set aside. 9. The order passed by the learned Trial Court is, hereby, affirmed. 10. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities. (Sahidullah Munshi, J.)