Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 1006 (CAL)

Sankar Baidya v. Sikha Biswas

2017-12-22

AMITABHA CHATTERJEE

body2017
JUDGMENT : Amitabha Chatterjee, J. The instant revisional application has been filed against the order dated May 12, 2016 passed by the Learned Additional District Judge, Fast Track Court III, Basirhat (N) 24- Parganas in Misc. appeal No. 30 of 2014 arising out of title suit No. 178 of 2013, whereby the Learned Judge in the court below allowed the appeal thereby setting aside the impugned order dated 18.08.2014 passed by the Civil Judge (Junior Division), Fast Track Court, Basirhat. The Learned Trial Judge passed an order of injunction restraining the defendant No. 1/opposite parties from interfering with the peaceful possession of the plaintiff/petitioner till disposal of the suit vide order dated 18.08.2014. 2. The petitioners case to put in brief is that the plaintiff/petitioner Sankar Baidya became the sole and absolute owner of the suit property by purchasing the said properties from one Mrityunjoy Boral S/o Late Dhirendra Nath Boral of village Uttar Kanchdaha, post Office Kanchdaha, P.S. Swarupnagar, 24-Parganas (N) on the strength of two sale deeds both being registered before the office of the D.S.R. II (N) 24-Parganas, the first deed being recorded in book No. 1, C.D. Vol. No. 11, pages 113 to 131, being No. 003362 for the year 2010 and the second deed being recorded in book No. 1, C.D. Vol. No. 42, pages 118 to 137 being numbered 12479 for the year 2012. 3. Originally the suit property belonged to one Akub Ali Gayen and during his possession he transferred the said suit property in favour of Dhirendra Nath Boral since deceased by virtue of the registered deed being numbered 3859 dated 25.10.1989 and thus relinquished his absolute possession. 4. Dhirendra Nath Boral during his possession expired leaving behind his only son Mrityunjoy Boral who inherited the suit property from his deceased father and thereafter recorded his name before the records of the BL and LRO having LR Khatian No. 1577. 5. Said Mrityunjoy Boral during his peaceful possession into suit property transferred the same in favour of the petitioner Sankar Baidya by two aforesaid registered sale deeds and delivered possession thereof. Thereafter the petitioner Sankar Baidya recorded his name in respect of the suit property in LR Khatian No. 1303 and thus remain in peaceful possession and enjoyment of the suit land. 6. Thereafter the petitioner Sankar Baidya recorded his name in respect of the suit property in LR Khatian No. 1303 and thus remain in peaceful possession and enjoyment of the suit land. 6. It is the further case of the petitioner that during the tenure of his peaceful possession the sudden dispute arose on and from 01.09.2013 when the defendant/opposite party Sikha Biswas along with her men and agents tried to encroach upon the suit property by trying to dispossess the petitioner. 7. Thereafter the petitioner filed a suit vide No. title suit No. 178 of 2013 before the Learned First Civil Judge (Junior Division) at Basirhat praying for permanent injunction against the defendant No. 1/opposite party thus restraining the defendant from disturbing the peaceful possession of the plaintiff/petitioner, not to oust the plaintiff/petitioner from the suit property without the due process of law, and not to change the nature and character of the suit property and also for a decree for permanent injunction in this regard. 8. On 09.09.2013 the plaintiff/petitioner also filed one petition under order 39 rule 1 and 2 C.P.C read with Section 151 of the said C.P.C. for getting an order of ad interim injunction in this regard. The Learned Court below passed an order vide order No. 2 dated 10.09.2013 restraining the defendant No. 1/opposite party from interfering with the peaceful possession of the plaintiff/petitioner over the suit property till 30.09.2013 which was extended from time to time. 9. The plaintiff/petitioner duly complied with the aforesaid order of the Learned Court and summons of the case was duly served upon the defendant/opposite party. 10. The defendant duly appeared in the said matter and the matter was contested by the defendant No. 1/opposite party before the said Court and it was in the presence of both the parties, the matter of injunction application was heard at length and on 18.08.2014 was fixed for passing the order. 11. The Learned Civil Judge (Junior Division) at Basirhat vide its order dated 18.08.2014 categorically stated that the said dispute regarding the actual number of legal heirs of the deceased Dhirendra Nath Boral and other documents filed by the parties to that effect shall be determined only after completion of trial, at this stage the plaintiff/petitioner has been able to prove his prima facie title and possession over the suit property. As such if the defendant be able to dispossess the plaintiff/petitioner he will suffer irreparable lose and injury. Thus passed an order to the effect that the defendant No. 1/opposite party be restrained from interfering with the peaceful possession of the plaintiff over the suit property till the disposal of the suit. 12. Having been aggrieved by the order No. 15 dated 18.08.2014 passed by the Ld. Civil Judge (Junior Division) at Basirhat 24-Parganas (N) in respect of the title suit No. 178 of 2013, the defendant No. 1/opposite party filed a Misc. appeal being numbered 30 of 2014 challenging the aforesaid order No. 15 dated 18.08.2014 before the Learned Additional District Judge Fast Track Court III at Basirhat 24-Parganas (N). 13. The plaintiff/petitioner contested the matter and the Learned Additional District Judge Fast Track Court III at Basirhat was pleased to reject the order No. 15 dated 18.08.2014 passed by the Learned first Civil Judge (Junior Division) at Basirhat 24-Parganas (N) and passed an order vide the order No. 16 dated 12.05.2016 stating that the Misc. appeal preferred by the defendant No. 1 is allowed on contest without any cost and such rejection of the injunction order was made by the Learned Additional District and Sessions Judge on the basis of an affidavit being sweared before the Learned Executive Magistrate Basirhat by Jagati Boral, Bijay Boral and Sabita Boral stating that they are also the legal heirs of Dhirendra Nath Boral. The Learned Additional District Judge First Track Court III held that the Learned Trial Judge failed to take into consideration the aspect of the heritage and shares of legal heirs of the deceased Dhirendra Nath Boral while disposing off the temporary injunction under order 39 Rule 1 and 2 read with Section 1051 of the Civil Procedure Code as such the impugned order being numbered 15 in title Suit No. 178/2013 suffers from illegality and material irregularity and the same is liable to be set aside. 14. Having been aggrieved by the order of the Learned Additional District Judge Fast Tract III Court in Misc. appeal No. 30/2014 the petitioner has preferred the instant revisional application being C.O. No. 3341 before the Hon'ble High Court. 15. 14. Having been aggrieved by the order of the Learned Additional District Judge Fast Tract III Court in Misc. appeal No. 30/2014 the petitioner has preferred the instant revisional application being C.O. No. 3341 before the Hon'ble High Court. 15. The Learned counsel representing the plaintiff/petitioner contended that the main grievance for challenge here in this revisional application is whether on the basis of an affidavit being sweared before the Learned Executive Magistrate, the Learned Court can decide the authenticity of the legal heir and inheritance of the deceased Dhirendra Nath Boral and whether taking into consideration of this affidavit the Learned Court can come to the conclusion regarding inheritance and legal heirs of the deceased. 16. It is submitted by the Learned counsel for the petitioner that the petitioner possessed the record of rights as the sole and absolute owner in this respect of the suit property at the BL and LRO being Khatian No. 1303. 17. The defendant/Opposite party Smt. Sikha Biswas wife of Nani Biswas of Kanchdaha being submitted an application for mutation under Section 50 of the WBLR Act, 1955 of Mouza Kanchdaha J.L. No. 10 plot Nos .357, 358, 365, 366 and 367 under khatian No. 1303 measuring an area of 27.5 decimal of land vide case No. 4043/10/13 before the B.L and L.R.O and after a prolonged hearing of the above referred case the defendant's prayer for recording her name as rayata was rejected vide order dated 02.06.2014. Thereafter the defendant/opposite party being aggrieved by and dissatisfied with the order dated 02.06.2014 passed by the B.L and L.R.O Swarupnagar in Misc. case No. 4043 of 10/13 preferred an appeal petition vide case No. 370 of 2014 under Section 54 of the WBLR Act before the office of the District land and land reforms officer North 24-Parganas and the said appeal was disposed off vide order dated 02.06.2014. Confirming the order of the B.L and L.R.O in connection with Misc. case No. 4043/10/13. 18. The petitioner Sankar Baidya also preferred an appeal vide appeal case No. 223 of 2015 to 225 of 2015 under Section 54 of the W.B.L.R. Act against Sabita Boral and others for the correction of the record of the B.L. and L.R.O in his favour but the said appeal was dropped since it had come to the knowledge that an appeal case bearing appeal No. 370/2014 was already in process. 19. 19. Being aggrieved by and dissatisfied with the acts of the concerned B.L and L.R.O Swarupnagar for not correcting the records of the B.L and L.R.O in favour of Sankar Baidya, the petitioner filed an application under Section 6 read with Section 10 of the W.B. Land Reforms and Tenancy Tribunal Act, 1997 vide case No. O.A. 565 of 2017 before the West Bengal Land Reforms and Tenancy Tribunal and the said case is pending for disposal before the said tribunal. 20. It is the further case of the petitioner Sankar Baidya that he is in absolute possession of the entire suit property since the date of purchasing the said property by virtue of two registered deeds and to that effect the petitioner has also sweared an affidavit before the Learned Judicial Magistrate at Basirhat 24-Parganas (N) and the Pradhan of Saguna Gram Panchayet also issued the certificate dated 26.05.2013 to that effect. 21. It is further stated by the petitioner that Mrityunjoy Boral from whom the petitioner purchased the suit property also declared before the Learned Executive Magistrate at Basirhat stating his father's name as Dhirendra Nath Boral. Lastly it is submitted by the Learned Counsel for the petitioner that the defendant purchased the suit property from Jagati Boral, Bijoy Boral and Sabita Boral on the strength of two deeds being numbered 7246 dated 17.05.2012 and 13144 dated 31.08.2012. Jagati Boral, Bijoy Boral and Sabita Boral filed a title suit being No. 2 of 2012 before the Learned Civil Judge (Junior Division) where they challenged the validity of the sale deed executed on 21.04.2009 and registered on 22.04.2010 as illegal, collusive and imperative. During the pendency of the suit the defendant/opposite party purchased the suit property from said Jagati Boral, Bijoy Boral and Sabita Boral. Subsequently, Jagati Boral, Bijoy Boral and Sabita Boral did not take steps in the matter and the said suit was dismissed for default vide order No. 8 dated 12.02.2012 and the said order is still in force. 22. The petitioner in his revisional application has prayed for setting aside the order passed by the Learned Additional District Judge in Misc. Appeal No. 30 of 2014 vide order No. 16 dated 12.05.2016. 23. 22. The petitioner in his revisional application has prayed for setting aside the order passed by the Learned Additional District Judge in Misc. Appeal No. 30 of 2014 vide order No. 16 dated 12.05.2016. 23. The Learned counsel representing the defendant/opposite party No. 1 contended that the instant revisional application has been filed against the order dated May 12, 2016 passed by the Learned Additional District Judge Fast Track Court - III, Basirhat, North 24-Parganas in Misc. appeal No. 30 of 2014 arising out of Title Suit No. 178 of 2013 whereby the Learned Judge in the court below inter alia allowed the appeal, setting aside the impugned order dated 18.08.2014 passed by the Learned Civil Judge (Junior Division), First Court, Basirhat. 24. The Learned Counsel submitted that the Learned Trial Judge passed an order of injunction restraining the defendant No. 1 from interfering with the peaceful possession of the plaintiffs till disposal of the suit vide order dated 18.08.2014 mechanically in absence of finding even prima facie with regard to the three ingredients of passing injunction i.e. prima facie case, balance of convenience and inconvenience and question of irreparable loss and injury. The Learned Trial Judge by order dated 18.08.2014 passed a blanket order of injunction mechanically restraining the defendant No. 1 from interfering with the peaceful possession of the plaintiff over the suit property till disposal of the suit. The plaintiff failed to prove his possession in respect of the suit property and without considering the said facts, the Learned Trial Judge on presumption passed an order of injunction. The Learned Trial Judge inter alia recorded that there is dispute with regard to title and both the parties asserted their title in respect of the suit property. It is recorded by the Learned Trial Judge that Dhirendra Nath Boral the original owner of the property died leaving behind his four legal heirs namely, Jagoti Boral (wife), Bijoy Boral (son), Mrityunjoy Boral (son) and Sabita Boral (daughter). 25. The Learned Trial Judge also recorded that the defendant has produced photocopy of heir certificate issued by the local panchayet. There is dispute regarding actual number of heirs of Dhirendra Nath Boral though no document of possession was filed by the plaintiff to substantiate his possession in this suit property. 25. The Learned Trial Judge also recorded that the defendant has produced photocopy of heir certificate issued by the local panchayet. There is dispute regarding actual number of heirs of Dhirendra Nath Boral though no document of possession was filed by the plaintiff to substantiate his possession in this suit property. The Learned Trial Judge further recorded that the plaintiff is claiming title over the suit property by way of purchase from the only legal heir of the original owner namely Mrityunjoy Boral while on the contrary the defendant No. 1 is claiming the title over the suit property by way of purchase from the three legal heirs of the original owner. It is submitted by the Learned counsel for the defendant/opposite party No. 1 that the Learned trial Judge failed to take into consideration the documents filed by the defendant No. 1 to substantiate Dhirendra Nath Boral, the original owner died leaving behind his four legal heirs namely Jagati Boral (wife), Bijoy Boral (son), Mrityunjoy Boral (Son) and Sabita Boral (daughter) who inherited equal shares in the suit property in ¼th share and the defendant No. 1 purchased the suit property from three of the legal heirs namely Jagati Boral, Bijoy Boral and Sabita Boral while the plaintiff inherited the ¼th share from only one heir namely Mrityunjoy Boral. 26. As such the issues involved in the suit are who are the legal heirs of Dhirendra Nath Boral being original owner of the suit should be vis-a-vis facts of the deed executed in favour of the defendant No. 1. It would be evident from the copy of the plaint filed in title suit No. 178 of 2013 appearing at page No. 21 of the revisional application that the main prayer sought for in the plaint is of permanent injunction. It is a settled law that interim orders are granted in aid of final relief involved in suit and the main relief cannot be granted at interlocutory stage. Granting the same relief as prayed for also virtually amounts to passing a decree in suit itself and as such the relief prayed for cannot be granted. 27. The Learned Judge in the Appellate Court extensively considered the plain,t written statement and documents filed by these parties. Granting the same relief as prayed for also virtually amounts to passing a decree in suit itself and as such the relief prayed for cannot be granted. 27. The Learned Judge in the Appellate Court extensively considered the plain,t written statement and documents filed by these parties. It appears from the order passed by the Learned Judge in the Appellate Court that Dhirendra Nath Boral was the absolute owner of the 30 decimal of land being the suit property. Dhirendra Nath Boral the actual owner died leaving behind him his wife Jagati Boral, two sons namely Mrityunjoy Boral, Bijoy Boral and a daughter Sabita Boral as his legal heirs who inherited the suit property in respect of ¼th share each in respect of 30 decimal of land and each of them become entitled to 7.5 decimal of land. Therefore, Mrityunjoy Boral became owner 7.5 decimal of land and he cannot inherit more than 7.5 decimal of land and as such he cannot transfer more than 7.5 decimal of land. The Learned Judge in the Appellate Court specifically found that consequent to death of Dhirendra Nath Boral his wife Jagati Boral, two sons Bijoy Boral and Mrityunjoy Boral and the daughter of Sabita Boral inherited the suit property and became owner in respect of ¼th share of each i.e. 7.5 decimal of land out of total 30 decimal of land. 28. The Learned Judge in the Appellate Court found from the documents filed by the defendant/opposite party that Jagati Boral, Bijoy Boral and Sabita Boral themselves executed the registered sale deed bearing No. 7246 dated 17.05.2012 and 13144 dated 01.08.2012 in favour of Sikha Biswas being defendant/opposite party No. 1 and consequently by virtue of aforesaid sale deed, executed by three of heirs out of four heirs of said Dhirendra Nath Boral, the defendant/Opposite party No. 1 became the owner of total 22.5 decimal of land and are in khas possession of the suit property. The Learned Judge in the Appellate Court also observed that aforesaid heirs of Dhirendra Nath Boral having 22.5 decimal out of 30 decimal and accordingly the aforesaid three heirs of Dhirendra Nath Boral are entitled to transfer and dispose of 22.5 decimal of land instead of 27.5 decimal of land. The Learned Judge in the Appellate Court also observed that aforesaid heirs of Dhirendra Nath Boral having 22.5 decimal out of 30 decimal and accordingly the aforesaid three heirs of Dhirendra Nath Boral are entitled to transfer and dispose of 22.5 decimal of land instead of 27.5 decimal of land. The Learned Judge in the Appellate Court found that the plaintiff is entitled to 7.5 decimal and the defendant/opposite party No. 1 by virtue of sale deed is entitled to 22.5 decimal of land. The Learned Judge in the Appellate Court also observed in the impugned order that the plaintiff has no prima facie case to succeed in trial in respect of entire 30 decimal of land and the balance of convenience and inconvenience also do not lie in favour of the plaintiff and if the injunction order is allowed to continue then the defendant No. 1 shall suffer irreperable loss and injury and on such finding and observation has inter alia been pleased to set aside the order of injunction dated 18.08.2014 passed by the Learned Trial Judge. 29. It is significant to mention here that the defendant No. 1 filed the documents such as Record of Right to show the name of vendors and consequent to sale, their names are mutated in the Record of Rights, document issued by Saguna Gram Panchayet to show Jagati Boral is the wife of Dhirendra Nath Boral, Voter Card and Ration Card of Jagati Boral, Vijoy Boral and Sabita Boral are also produced to show that they are legal heirs and representatives of Dhirendra Nath Boral. The documents filed by the defendant No. 1 also shows that Dhirendra Nath Boral, the actual owner died leaving behind four heirs namely Jagati Boral (wife ), Bijoy Boral (son), Mrityunjoy Boral (son) and Sabita Boral (daughter) which is evident from Panchayet Certificate, Kazna Receipt, Voter Card and Ration Card. 30. The record of rights further at the time of purchase by the defendant stood in the name of the vendors of the defendant and thereupon, the name of the defendant was mutated on the basis of the registered sale deed dated 17.05.2012 and 01.08.2012 which were executed in favour of the defendant No. 1 namely Sikha Biswas by Bijoy Boral, Sabita Boral and Jagati Boral being three of the legal heirs of Dhirendra Nath Boral. The record of right shows possession of the three aforesaid vendors and consequently, the said property was mutated in the name of the defendant No. 1 and they are in khas possession thereof. 31. The Learned counsel for the defendant/opposite party No. 1 also contended that although the plaintiff filed the suit for permanent injunction, but the plaintiff failed to prove his possession in respect of the entire suit property. On the other hand, the defendant No. 1 has proved her possession in respect of the suit property, as such the injunction prayed for by the plaintiff to restrain the defendant No. 1 to interfere with the property of the plaintiff cannot be passed. Therefore, there is no perversity in the impugned order under challenge in the instant revisional application. It further appears that the plaintiff himself have submitted that he has filed an O.A. application being O.A. No. 565 of 2017 before L.R. T.T praying for correction record of right but no interim order has been granted to the plaintiff and the said case is still pending. 32. Now, it is a settled principle of law that an injunction is a judicial process whereby a party is required to do or refrain from doing, any particular act. It is in the nature of a preventive relief granted to a litigant quia timet; i.e., because he fears possible future injury. Its main purpose is to preserve the subject-matter of the suit in status quo for the time being. 33. The Court has the power to grant a temporary injunction to restrain certain acts of the defendant or for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to the suit property. Such an injunction is granted until the disposal of the suit or until further orders are passed by the Court. 34. Such an injunction is granted until the disposal of the suit or until further orders are passed by the Court. 34. In order to obtain such an injunction, any of the following three circumstances must be proved either by affidavit or otherwise: (a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) That the defendant threatens, or intends, to remove or dispose of his property, with a view to defraud his creditors; or (c) That the defendant threatens to dispossess the plaintiff, or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. 35. The following three principles are laid down regarding the use of discretion while granting injunctions: (i) In the facts and circumstances of each individual case, lthere must exist a strong probability that the petitioner has an ultimate chance of success in the suit. This concept has been otherwise expressed by saying that there must be a prima facie case in favour of the plaintiff, (ii) As the injunction is granted during the pendency of the suit, the Court will interfere to protect the plaintiff from injuries which are irreparable, The expression irreparable injury means that lit must be a material one, which cannot be adequately compensated for in damages. The injury need not be actual, but may also be apprehended. (iii) The Court is to balance and weigh the mischief or inconvenience to either side before issuing or withholding the injunction. This principle can be expressed by saying that the Court is to look to the balance of convenience. 36. Now, in the case at hand it is an admitted position that Dhirendra Nath Boral was the exclusive owner of the suit property covering the entire 30 decimals of land. From the materials on record it appears that Dhirendra Nath Boral died leaving behind his legal heirs namely, wife Jagati Boral, two sons Bijoy Boral and Mrityunjoy Boral and a daughter Sabita Boral, who inherited the suit property in ¼th share each and thus each one of them have became entitled to 7.5 decimal of land. From the materials on record it appears that Dhirendra Nath Boral died leaving behind his legal heirs namely, wife Jagati Boral, two sons Bijoy Boral and Mrityunjoy Boral and a daughter Sabita Boral, who inherited the suit property in ¼th share each and thus each one of them have became entitled to 7.5 decimal of land. Now the plaintiff's case is that he became the owner of the entire suit property by virtue of purchase of the same from one Mrityunjoy Boral, who happens to be one of the legal heirs of Dhirendra Nath Boral whereas the defendant/Opposite Party No. 1 Sikha Biswas claims that she by virtue of registered two sale deeds dated 17.05.2012 and 01.08.2012 executed by three other legal heirs of Dhirendra Nath Boral namely, Bijoy Boral, Sabita Boral and Jagati Boral purchased the shares of three legal heirs and accordingly defendant/Opposite Party No. 1 can retain khas possession in respect of 22.5 decimal out of total 30 decimals of land of the suit property and the plaintiff/petitioner Sankar Baidya having derived interest from one of the legal heirs of Dhirendra Nath Boral namely Mrityunjoy Boral is entitled to 7.5 decimal of land and as such the plaintiff/petitioner also can retain khas possession in respect of 7.5 decimal of land only out of 30 decimals of land. In fact, the plaintiff Sankar Baidya could not establish his title in respect of the entire 30 decimal of the land of the suit property by way of purchase from Mrityunjoy Boral, one of the legal heirs of Dhirendra Nath Boral the original owner of the land. I fail to understand how Mrityunjoy Boral became the exclusive owner of the entire 30 decimals of land after the demise of his father Dhirendra Nath Boral when it appears primarily from the materials on record that there are three other legal heirs of Dhirendra Nath Boral namely Jagati Boral (Wife), Bijoy Boral (son) and Sabita Boral (daughter). 37. I fail to understand how Mrityunjoy Boral became the exclusive owner of the entire 30 decimals of land after the demise of his father Dhirendra Nath Boral when it appears primarily from the materials on record that there are three other legal heirs of Dhirendra Nath Boral namely Jagati Boral (Wife), Bijoy Boral (son) and Sabita Boral (daughter). 37. Having regard to the entire facts and circumstances of the present case I am inclined to hold that the plaintiff could not prove the prima facie case in respect of the entire 30 decimals of land at least at this stage since it is not proved that Mrityunjoy Boral became the exclusive owner of the entire 30 decimals of land upon the demise of his father Dhirendra Nath Boral to the exclusion of three other legal heirs of Dhirendra Nath Boral I do hold that the plaintiff is not entitled to get an order of temporary injunction at this stage. Accordingly I am of the view that the impugned order passed by the Learned Additional District Judge, Fast Track Court - III, Basirhat North 24 Parganas in Misc. Appeal No. 30/2014 arising out of total suit No. 178 of 2013 does not suffer either from material irregularity or any illegality and, therefore, does not call for any interference what so ever. 38. The civil revisional application stands dismissed accordingly. There will be no order as to costs. Urgent Photostat certified copy of this order, if applied for be given to the Learned Advocate for the parties upon compliance with all requisite formalities.