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2017 DIGILAW 1078 (GAU)

Bikash Dey Laskar v. Nipapriya Das

2017-08-08

MIR ALFAZ ALI

body2017
JUDGMENT : Mir Alfaz Ali, J. 1. This appeal is directed against the order dated 10.04.2015 passed by the Civil Judge, Karimganj in Misc. (J) Case No. 32/2013 arising out of T.S. No. 23/2013. The appellants, as plaintiffs instituted a suit for declaration and reconveyance of the suit property claiming preferential right as well as permanent injunction. The case of the appellants/plaintiffs (hereinafter referred to as plaintiff) was that the property of Late Basanta Kumar Dey, who died in 1982 was inherited by his three sons, Bidhan Laskar, Biman Laskar, Bikash Laskar and the wife of said Sri Basanta Kumar Dey. Subsequently, the wife of Basanta Kumar Dey died and his entire property was enjoyed by the three sons jointly in equal share. In the year 1986, the property left by Basanta Kumar Dey was amicably partitioned amongst the co-sharers being the plaintiff No. 1, defendants No. 3 & 4, who are the legal heirs of Late Biman Dey Laskar and Bidhan Ch. Dey Laskar, who also died subsequently leaving his heirs, defendants No. 6 & 7. It was mentioned in the Partition Deed, that in case any of the co-sharer required to sell his respective share, it was agreed that the property shall be sold to the co-sharers at just and reasonable price, and in case, the co-sharers were unable to purchase the property, then there would be no bar in selling the property to any third party. Defendant Nos. 4 & 5 sold their share of the property in favour of the defendant Nos. 1 & 2. When the plaintiffs came to know about such sale of the property by the defendants No. 4 & 5 in favour of the defendants No. 1 & 2, the plaintiffs filed the suit for declaration that the Sale Deed in favour of the defendants No. 1 & 2 was fraudulent, illegal, void and inoperative and also for reconveyance of the property in favour of the plaintiffs. The appellants also filed a petition for temporary in-j unction in terms of the prayer of permanent injunction 2. The case of the contesting defendants is that the plaintiff No. 1 had expressed his inability to purchase the suit land and had given a written no-objection to that effect. The defendant Nos. 3 & 4 by executing registered Sale Deed sold the suit land to the defendant Nos. The case of the contesting defendants is that the plaintiff No. 1 had expressed his inability to purchase the suit land and had given a written no-objection to that effect. The defendant Nos. 3 & 4 by executing registered Sale Deed sold the suit land to the defendant Nos. 1 & 2 and delivered possession to them. It has also been contended that the plaintiff No. 2 was neither a party to the Partition Deed nor has she any right or title over the suit land and hence there was mis-joinder of party to the suit. Further pleaded case of the said defendants is that after partition, all the co-sharers have become absolute owners of their respective shares of property as per the registered deed of partition and the defendant Nos. 4 & 5 sold their own property to the defendant Nos. 1 & 2, as the other co-sharers expressed their inability to purchase the land. The defendant Nos. 1 & 2 have been possessing the suit land after having purchased the same for valuable consideration and the plaintiffs have no right or title over the suit land, and therefore, the suit and injunction petition of the plaintiffs was required to be dismissed with compensatory cost. The defendants further contended that prima facie case as well as irreparable loss and balance of convenience were not in favour of granting injunction. 3. Learned Trial Court after hearing the parties, rejected the prayer for temporary injunction and dismissed the Misc. (J) Case No. 32/2013. Aggrieved by the said order dated 10.04.2015, the plaintiffs/appellants have filed the instant appeal. 4. I have heard Mr. B. Chakraborty, learned counsel for the appellants and Mr. R. Dhar, learned counsel for the respondents. 5. Learned counsel for the appellants relying on the decision of the Apex Court in the case of Delhi Transport Corporation v. Shyam Lal reported in (2004) 8 SCC 88 submitted that the learned Trial Court ought to have granted injunction for protecting the suit property, as alienation of the property during trial or any damages caused to the property would lead to multiplicity of proceeding. It has been contended by the learned counsel for the appellants, that learned Trial Court committed error by comparing signatures of the plaintiffs while deciding the temporary injunction. It has been contended by the learned counsel for the appellants, that learned Trial Court committed error by comparing signatures of the plaintiffs while deciding the temporary injunction. Relying on a decision of this Court in the case of Shyamshuhdar Chowkhani v. Kajalkanti Biswas reported in 1999 (1) GLT 19 learned counsel submitted that it was not proper on the part of the trial court to assume the role of an expert and give opinion regarding the genuineness of a signature by mere comparison with the admitted signature. 6. Per contra, learned counsel for the respondents relying on the decision of this High Court reported in Krishnapada Roy @ Saha v. Parimal Chandra Saha & Anr. reported in AIR 2000 GAU 117 submitted that after the partition, there could not be any claim of preferential right under Section 22 of the Hindu Succession Act and therefore there was no prima facie case at all. Further contention of the learned counsel was that the plaintiff No. 1 having consented by giving no-objection for sale of the property, he has no right to file the suit and also not entitled to any temporary injunction. It has also been contended by Mr. Dhar that the plaintiff No. 1 having already parted with his share by way of transfer, no longer had any right, title over any portion of the ancestral property and the plaintiff No. 2 was neither a party to the Partition Deed nor had she any right, title over the suit property and she being merely a misjoinder to the suit, was not entitled to any relief or injunction. Relying on the decision of the Apex Court in Wander Ltd. v. Antox India P. Ltd. reported in 1990 (Supp) SCC 727 and Bindeshwar Norayan Singh v. Managing Committee, Shri Sundarmai Hindi High School reported in AIR 1982 GAU 69 , Mr. Dhar further submitted that, granting or refusing temporary injunction being discretion of the court, appellate court should not interfere with such discretion, unless it is found that the court of first instance has exercised the discretion illegally, arbitrarily, capriciously or perversely. 7. It is settled position of law that in order to grant temporary injunction, Court has to be satisfied that all the three basic criterion for granting temporary injunction, i.e. prima facie case, balance of convenience and irreparable loss are in favour of the plaintiff/petitioner. 7. It is settled position of law that in order to grant temporary injunction, Court has to be satisfied that all the three basic criterion for granting temporary injunction, i.e. prima facie case, balance of convenience and irreparable loss are in favour of the plaintiff/petitioner. From the pleadings and documents produced, it appears that the plaintiff No. 2 was neither a party to the Partition Deed nor she has any right or title over the suit property. The documents produced by the respondents transpire that the plaintiff No. 1 has already parted with his share in the ancestral properties by way of transfer. It is the case of the defendants that the plaintiff No. 1, by a written consent conveyed his no-objection for selling the property to third party, expressing his inability to purchase the property and the said document (no objection) has been produced in the Court. No doubt the plaintiff has denied in the plaint and petition that he has not given any no-objection, but the plaintiff has not stated anything specifically as to how this document (no-objection) came into existence. When the plaintiff sought for temporary injunction being an equitable relief, and such prayer for injunction was resisted by defendant on the strength of a document allegedly written by the plaintiff No. 1, plaintiffs ought to have given some explanation for such document, which tends to negate the claim of the plaintiffs. No doubt, ultimately it has to be decided in the suit, whether such no-objection was indeed given or not, but, when a document has been produced in court having potential, even to non suit the plaintiff, at least for prima facie case, plaintiff No. 1, who is highly qualified person, was obliged to explain the circumstance of the no-objection letter purportedly given by him, at least for purpose of showing that plaintiffs have a prima facie case which requires adjudication. 8. No doubt, prima facie title and prima facie case are not the same thing. The right, title would be decided in the suit. Even for the purpose of prima facie case, the court obviously needs to look into the document produced by parties having substantial bearing on the dispute raised in the suit, because injunction is not a charity, and court has to be satisfied, that there really exist the necessary requirement for granting injunction. Even for the purpose of prima facie case, the court obviously needs to look into the document produced by parties having substantial bearing on the dispute raised in the suit, because injunction is not a charity, and court has to be satisfied, that there really exist the necessary requirement for granting injunction. The Partition Deed shows that the parties only agreed to sell the property to the co-sharers on just and reasonable price and if the co-sharer express their inability to purchase, there would be no bar in selling the property to a third party. In the instant case, objection has been raised only by the plaintiff No. 1 against the sale of property by another co-sharer. But materials show that the plaintiff No. 1 no longer has any right, title over the suit property or any portion of ancestral property as the plaintiff has already parted with his share of property by transfer and the document produced by the defendant prima facie indicated that the plaintiff No. 1 consented to the sale of property by defendant Nos. 3 & 4. Therefore, for the purpose of prima facie case, this document certainly can be looked into and the learned Trial Court has not committed any error by looking into the document so produced by the defendant for the purpose of deciding the question of prima facie case. Evidently, no other co-sharer has raised any objection. The suit basically appears to be for reconveyance of the property on the basis of preferential right as per contract amongst the co-sharer. When admittedly the property was partitioned and each co-sharer has become exclusive owner of their respective shares, the defendant Nos. 1 & 2 appears to have acquired exclusive title over the suit land and in that view of the matter, as on date, plaintiffs admittedly have no right or title over the suit land inasmuch as the defendants No. 4 & 5 were exclusive owner of the suit property and they have sold the property to the defendants No. 1 & 2 for valuable consideration. Apparently, the plaintiff No. 2 does not have any right or title over the suit property. The plaintiff No. 1 has also evidently parted with his share in the ancestral property after the partition. Apparently, the plaintiff No. 2 does not have any right or title over the suit property. The plaintiff No. 1 has also evidently parted with his share in the ancestral property after the partition. The document produced by the defendants showing consent and no objection of the plaintiff No. 1 also prima indicated that there was no impediment in selling the suit property by the defendant Nos. 3 & 4, who were the exclusive owner. In view of the above facts and circumstance, I do not find that the learned Trial Court has committed any error in holding that there was no prima facie case on the facts and circumstances of the case. The defendant Nos. 1 & 2 having purchased the suit land for valuable consideration from the owner and having been in possession of the property, are certainly entitled to use the property according to their own choice as rightful owner, until and unless they are evicted from the suit property. The partition deed does not contain any clause that the property sold by one of the co-sharer without consent shall have to be re-conveyed. Partition deed necessarily does not bind the third party not being a party to contract. The defendants No. 1 & 2 having purchased and possessed the suit land, they have already acquired title over the property. 9. In the above facts and circumstances, if the injunction as prayed is granted the defendants, who are bona-fide purchasers of the suit land having right, title and possession would be deprived of using the land and in that case if the suit of the plaintiff fails, the defendants will certainly suffer irreparable loss. Looking from another angle, if the plaintiffs succeed in the suit, at best they would be able to re-purchase the land. In that case, as a result of refusal of injunction, the plaintiffs have nothing to lose, inasmuch as, otherwise also the plaintiffs have no title or possession over the suit property. Therefore, balance of convenience as well as irreparable loss also appears to be heavily tilted in favour of the defendants, since the defendants are already in possession of the suit land by right of purchase. 10. Therefore, balance of convenience as well as irreparable loss also appears to be heavily tilted in favour of the defendants, since the defendants are already in possession of the suit land by right of purchase. 10. The Apex Court in Wander Ltd. (supra) dealing with the ambit of power of appellate court in the matter of injunction observed as under: "The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion." 11. A Division bench of this Court in Bindeshwar Narayan Singh (supra) also observed that the power of appellate court in the matter of injunction is circumscribed and held as under: "The power of the appellate court in the matter of injunction is rather circumscribed. The appellate Court would be slow to interfere with the exercise of discretion and would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not, justify interference with the trial Court's exercise of discretion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not, justify interference with the trial Court's exercise of discretion. If it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate Court to interfere with the trial Court's exercise of discretion ( AIR 1967 SC 249 ). Where the trial Court had not exercised its discretion capriciously or arbitrarily, no case for interference would be made out ( AIR 1969 SC 938 ). Only if the discretion is not exercised by the trial Court in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, the order passed by the lower Court can be reversed by the superior Court (1977-2 SCC 457) : ( AIR 1977 SC 747 )." What therefore follows is that power of the appellate court in the matter of injunction is circumscribed and appellate court is not expected to interfere with the discretion of the trial court in the matter of injunction, unless it is found that trial court has not exercised the discretion judiciously or acted arbitrarily, capriciously or perversely. The facts and circumstances of the present case makes it appear that all the three golden principles of granting temporary injunction are not in favour of the plaintiffs and therefore, the order of the Trial Court is not found to have suffered from any illegality or perversity. When learned trial court is found to have exercised its jurisdiction judiciously, in rejecting the temporary injunction, on the facts and circumstances of the case, I do not see any cogent ground to interfere with the impugned order of the Trial Court. In the above view of the matter, the appeal is found devoid of merit and accordingly, dismissed. No cost. 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