Research › Search › Judgment

Patna High Court · body

2017 DIGILAW 1022 (PAT)

Salim Hazam v. Mainu Nisa

2017-08-04

V.NATH

body2017
ORDER : Heard Mr. W. Rahman, learned counsel appearing for the appellant and Mr. Biond Kumar Singh, learned counsel appearing for the respondents in the interlocutory applications (I.A. Nos. 3957/2017 and 3958/2017) along with supplementary affidavit filed in I.A.No.3958/2017. 2. in the interlocutory applications (I.A. Nos. 3957/2017 and 3958/2017) along with supplementary affidavit filed in I.A.No.3958/2017. In the interlocutory application (I.A.No.3958/2017) along with the supplementary affidavit filed thereto, the prayer has been made on behalf of the appellants to implead the two persons named therein as party respondents in the present appeal on the basis that they have purchased the part of the suit land by sale deed dated 28.03.2006, from the respondents during the pendency of the suit/appeal. 3. The interlocutory application (I.A.No.3957/2017) has been filed praying for grant of temporary injunction restraining the respondents from alienating, encumbering and changing the nature of the suit land and also for not disturbing the peaceful possession of the appellants and to maintain the status quo as existing till final disposal of the present appeal. 4. The matrix of facts, in short, discloses that the plaintiff-appellants filed the suit for declaration of their title over the suit land described fully in the schedule of the plaint. In the said suit, the State of Bihar was also impleaded as defendant no.2 besides the defendant. The defendant no.1 filed the contesting written statement and claimed his title and possession over the suit land. The State of Bihar-defendant no.2 also filed the written statement denying the claim of the plaintiff and defendant no.1 over the suit land and claimed the same as belonging to the State of Bihar. 5. The trial court returned the finding that the plaintiffs had failed to prove title and legal possession over the same. It was also held that the defendant 1st set had no concern with the suit land and had no title and possession over the same and the suit land belonged to the defendant- State of Bihar. Accordingly, the suit was dismissed. 6. The plaintiffs filed the appeal against the judgment and decree of dismissal of their suit. No appeal or cross appeal was filed by the defendant 1st set. Accordingly, the suit was dismissed. 6. The plaintiffs filed the appeal against the judgment and decree of dismissal of their suit. No appeal or cross appeal was filed by the defendant 1st set. The appellate court below by the impugned judgment and decree has dismissed the appeal filed by the plaintiffs affirming the findings of the trial court which were recorded against the plaintiffs but has further also held that the part of the suit land (mentioned in the judgment) belongs to the defendant 1st set, and the rest land belongs to the defendant no.2-State of Bihar. 7. The present appeal has been admitted for hearing on 11.02.2016 formulating substantial question of law arising therein. It transpires that earlier I.A.No.914/2015 was filed on behalf of the appellants praying for restraining the defendant from alienating, encumbering and changing the nature of the suit land and also for not disturbing the possession of the appellants over the suit land. By order dated 17.03.2016, the said interlocutory application was directed to be considered at the time of hearing of the appeal. After filing the two interlocutory applications i.e. I.A.No.3957/2017 and I.A.No.3958/2017, the appellants prayed to withdraw the interlocutory application (I.A. No. 914/2015) which prayer was allowed by order dated 13.07.2017. 8. In the interlocutory application (I.A.No.3958/2017) along with supplementary affidavit thereto, the appellants have stated that the two persons, namely, S.H. Sarfaraj Ahmed Khan and Wahazul Khan have purchased the part of the suit property area 30 decimal of Khata No.836 Plot No.1134 by registered sale deed dated 28.03.2006 from the defendant 1st set-respondents, during the pendency of the appeal in the appellate court below. It has also been averred that one of the above- named pendente lite purchasers namely S.H. Sarfaraj Ahmed Khan offered the purchased land to the Indian Oil Corporation Ltd for obtaining L.P.G. Distributorship, and after selection by the said Corporation, he has started creating disturbance in possession of the plaintiff over the suit land. 9. In the counter affidavit filed on behalf of the respondent nos. 2 to 6 along with the two purchasers abovementioned, the fact of purchase of the part of the suit land has not been denied but it has been asserted that the purchasers are bonafide purchasers for value and are in peaceful possession over the purchased land. It has also been averred that the names of the purchasers have been mutated. 2 to 6 along with the two purchasers abovementioned, the fact of purchase of the part of the suit land has not been denied but it has been asserted that the purchasers are bonafide purchasers for value and are in peaceful possession over the purchased land. It has also been averred that the names of the purchasers have been mutated. It has also been accepted that the purchaser S.H. Sarfaraj Ahmed Khan has been allotted L.P.G. Distributorship and has been allowed to construct godowns over the suit land and accordingly letters of intent dated 20.04.2017 has been issued by the Indian Oil Corporation Ltd. It has also been stated that in view of the fact that the vendors have been contesting the present second appeal with bonafide intent and sincerity, the purchasers as such are neither a necessary party nor a proper party in the same and the plaintiffs have not prayed for consequential relief pertaining to possession and have filed a declaratory suit and as such also the purchasers are not required to be made parties in this appeal. 10. After considering the submissions on behalf of the parties and the averments made in the pleadings, it is manifest that the persons sought to be impleaded as parties have admittedly purchased the part of the suit property during the pendency of the suit. It is also evident that those persons have been asserting their title and possession over the suit land on the basis of their purchase. The defendant 1st set/respondents have also accepted to have made the transfers in favour of those persons and have further recognized/assented to their exclusive title and possession over the said purchased land. It is, evincible, therefore, that the defendant 1st set-respondents cannot now claim their right, title and interest whatsoever over the sold out property by them and they cannot be any means be accepted as representatives of the interest of their purchasers in the suit property. In view of the dictum of the apex court in Vidhur Impex and Traders (P) Ltd. Vs. Tosh Apartments (P)Ltd., (2012)8 SCC 384 , the persons sought to be impleaded as respondents in this appeal are necessary party because in their absence, an effective decree cannot be passed by the court. The similar view has been reiterated by the apex court in Amit Kumar Shaw Vs. Tosh Apartments (P)Ltd., (2012)8 SCC 384 , the persons sought to be impleaded as respondents in this appeal are necessary party because in their absence, an effective decree cannot be passed by the court. The similar view has been reiterated by the apex court in Amit Kumar Shaw Vs. Farida Khatoon , AIR 2005 SC 2290 where it has been ruled that “ a transferee pendente lite to the extent he has acquired interest from the defendant is vi tally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff …….The court has discretion in the matte r which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests…” 11. Though the prayer on behalf of the appellants for impleadment of the pendente lite purchasers as parties in this appeal has been made belatedly but that alone cannot be a ground to decline the prayer when it is the case of the appellants that specific overt acts by the purchaser amounting to assertion of the right and intrusion in the possession over the suit land started in the year 2017. 12. In the facts and circumstances of this case, the interlocutory application (I.A.No.3958/2017) is allowed and the two persons namely, Sh. Sharfaraj Ahmad Khan and Wahazul Khan fully described in the interlocutory application along with the supplementary affidavit thereto are impleaded as respondent nos.8 and 9 to this appeal. 13. As respondent no.8 has already appeared in this appeal, there is no need to issue notice. 14. However, the appellants are allowed two weeks time to file requisites for issue of appeal notice upon the respondent no.9 Wahazul Khan both under registered cover with A/D as well as ordinary process. 15. The interlocutory application (I.A.No.3957/2017) has been filed on behalf of the appellants for restraining the respondents from alienating, encumbering and changing the nature of the suit land and for restraining them from disturbing the peaceful possession of the appellants over the suit land by maintaining status quo till the final disposal of the appeal. 16. 15. The interlocutory application (I.A.No.3957/2017) has been filed on behalf of the appellants for restraining the respondents from alienating, encumbering and changing the nature of the suit land and for restraining them from disturbing the peaceful possession of the appellants over the suit land by maintaining status quo till the final disposal of the appeal. 16. The relevant facts of the case have already been taken into notice and it would suffice to state that the prayer for injunction in the present application has been made mainly on the ground that the purchaser respondent no.8 of the part of the suit land has started forcibly changing the feature of the suit land by digging soil and making construction over the suit land. It has also been stated that the appellants have got their residential house over the suit land where they are residing along with their family members. In the counter affidavit filed by the respondents, the exercise of right of possession over the suit land has not been specifically denied and instead it has been asserted in paragraph-17 of the counter affidavit that the purchasers of the suit land are exercising their right of possession and ownership on the basis of their allotment made by Indian Oil Corporation Ltd. 17. Learned counsel for the parties have made elaborate submissions in support of their rival cases and decisions galore have been relied upon to substantiate their respective contentions. 18. Mr. Singh, learned counsel appearing for the respondents, at the outset has raised objection to the maintainability of the interlocutory application (I.A.No.3957/2017) on the base that prior to filing of this interlocutory application, the appellants had filed ( I.A.No.914/2015) for the same relief of injunction which was ultimately withdrawn by the appellants. It has been contended that the present application filed subsequently would be barred by res judicata and therefore would not be maintainable. 19. Mr. It has been contended that the present application filed subsequently would be barred by res judicata and therefore would not be maintainable. 19. Mr. Rahman, learned counsel for the appellants, however , has propounded that there is no absolute rule of law that a subsequent application for injunction after the withdrawal or dismissal of earlier application would not be maintainable and has submitted that such application can very well be maintained in view of the changed circumstances or subsequent development which is exactly the fact in this case where the purchaser-respondent after obtaining the distributorship from the Indian Oil Corporation Ltd. has forcibly started changing the physical feature of the land. Strong reliance has been placed on the apex court decision in the case of Arjun Singh Vs. Mahendra Singh , AIR 1964 SC 993 in support of this contention. 20. The apex court in Arjun Singh (Supra) has ruled that the orders in the nature of stay, injunction or receiver are capable of being altered or varied by subsequent applications for the same relief, though normally on proof of new facts or new situations which subsequently emerged and the principle of res judicata does not apply in such matters, though the court will be justified in rejecting such an application for the relief on the same basis after the same has once been disposed of. In view of this dictum of the apex court there appears no substance in the submission on behalf of the respondents for rejection of the application on ground of maintainability or bar of res judicata. 21. The next objection raised on behalf of the respondents is that as the suit was a declaratory suit simpliciter, no injunction can be granted. However, in view of the law laid down by the apex court in the case of Smt. Rajnibai alias Mannubai Vs. Smt. Kamla Devi, 1996 (2) SCC 225 holding that even in a suit for declaration of title, the court has power to grant interim injunction, this objection cannot be legally sustained. Further objection on behalf of the respondents has pertained to the bar of Section 34 of the Specific Relief Act and the reliance has been placed upon the decision in the case of Cotton Corporation of India Ltd. Vs. United Industrial Bank Ltd., 1983 (4) SCC 625 . Further objection on behalf of the respondents has pertained to the bar of Section 34 of the Specific Relief Act and the reliance has been placed upon the decision in the case of Cotton Corporation of India Ltd. Vs. United Industrial Bank Ltd., 1983 (4) SCC 625 . This Court, however, finds that the said issue is still to be finally determined at the time of hearing of this appeal and the same cannot be a ground for declining the prayer for injunction, more so, when there is no specific finding by the courts below that the plaintiff-appellants are not in possession over the suit land. 22. Mr. Rahman, learned counsel for the appellants in support of the prayer for injunction has emphatically submitted that once after the finding by the trial court that the defendant 1st set-respondents had no title and possession over the suit land and there being no appeal or cross objection against the said finding, the appellate court below has committed error of jurisdiction in declaring the title of the defendant 1st set respondents over a part of the suit land which has subsequently been also sold. The learned counsel for the appellants has placed reliance upon the decision of the apex court in the case of Choudhary Sahu (Dead) By LRS. Vs. State of Bihar, 1982 (1) SCC 232 [: 1982 PLJR (SC) 15] and in the case of Banarsi Vs. Ramphal, 2003 (9) SCC 606 in support of his further contention that the provision of Order 41 Rule 33 C.P.C. could not have been invoked in the facts and circumstances of the present case, by the appellate court below to grant the relief to the defendant 1st set-respondents. In view of the above authoritative pronouncement on this legal nodus , this Court declines to align with the submission on behalf of the respondents that the provisions of Order 41 Rule 33 C.P.C. override the provisions of Order 41 Rule 22 C.P.C. 23. In view of the above authoritative pronouncement on this legal nodus , this Court declines to align with the submission on behalf of the respondents that the provisions of Order 41 Rule 33 C.P.C. override the provisions of Order 41 Rule 22 C.P.C. 23. The facts are manifest that the defendant 1st set-respondents had transferred the part of the suit property during the pendency of the appeal in the court below and the purchaser-respondent no.8 has started asserting his rights of possession over the suit land on the basis of LOI dated 20.04.2017 granted to him by the Indian Oil Corporation Ltd. The appellants have alleged that the respondent no.8 has been forcibly changing the physical feature of the suit land for the purpose of construction and this fact has been accepted by the respondents in paragraph-17 of the counter affidavit to the interlocutory application (I.A.No.3957/2017). 24. In this background facts, it would be fruitful to reminisce the principle laid down by the apex court in the case of Maharwal Khewaji Trust Vs. Baldev Dass , AIR 2005 SC 104 [: 2005 (1) PLJR (SC) 94] governing the grant of temporary injunction as follows: “………Unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings…. …………………... We do not think in the facts and circumstances of this case the lower appellate court and the High Court were justified in permitting the respondents to change the nature of the property by putting a construction as also by permitting the, alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant’s claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. In the event of the appellant’s claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders …” 25. In the present case, this Court is not persuaded to come to the conclusion that the respondents would suffer irreparable loss or damage or there is in existence extraordinary ground for permitting the respondents to make construction over the suit land and change its physical feature. The observations by the apex court in Moolchand Yadav Vs. Raza Buland Sugar Company , 1982 (3) SCC 484 is also worth noticing that once after the appeal has been admitted no order should be passed having serious civil consequences. 26. After careful consideration of the matter, this Court is convinced that the appellants have succeeded in establishing the necessary ingredients for grant of injunction in their favour as prayed. This Court, however, is of the view that the interest of justice would be best served by restraining both the appellants and the respondents from alienating or encumbering the suit property in any manner and further from changing the physical feature of the suit land by putting up construction or doing any over tact in that regard during the pendency of this appeal. It is so ordered accordingly. 27. The interlocutory application (I.A.No.3957/2017) thus stands disposed of.