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2018 DIGILAW 33 (SIK)

Furden Tshering Bhutia v. Payjee Bhutia Sherpa

2018-05-28

BHASKAR RAJ PRADHAN

body2018
JUDGMENT : This is an application under Order XXXIX Rule 1 & 2 read with Section 151 of Code of Civil Procedure, 1908 (CPC). The application has been preferred by the Appellants on 31.03.2018. 2. It is pleaded that the Appellants were informed that Respondent No.1, 2 and 3 are hurriedly constructing one permanent new building on the suit premise. 3. It is further pleaded that the Appellant No.1 without wasting time, went to the spot on 26.03.2018 and found that the Respondent No. 1, 2 and 3 were hurriedly constructing the building in the suit premise and found that RCC posts were also erected. Photographs taken have also been annexed to the said application as Annexure-P1 Colly. 4. The Appellants further pleads that they had requested the Respondents not to continue with the construction which was undertaken at a rapid pace. The Appellants submits that if the construction of the building is continued, the nature and character of the suit property would change completely, permanently and irrevocably and the Appellant would be highly prejudiced and would suffer irreparable loss. 5. The Respondent No.2 has filed a reply to the said application. It is submitted by the answering Respondent that the application is liable to be dismissed as it is filed on a wrong assumption of the Appellants that there is still a dispute with regard to the possession of the Respondent No.1, 2 and 3 for determination by the Hon’ble Court in the present Appeal. It is further submitted by the answering Respondents that the khas possession of the suit property is jointly with the Respondent Nos.1, 2 and 3 which was neither denied nor challenged by the Appellants in the present Appeal. The answering Respondent would further submit that the application has become infructuous for the fact that the Respondents have already now completed major portion of the construction of the building in question. 6. It is submitted that no prejudice or irreparable loss/ injury would be caused to the Appellants if the said application is rejected by this Court at this stage. 6. It is submitted that no prejudice or irreparable loss/ injury would be caused to the Appellants if the said application is rejected by this Court at this stage. In fact to the contrary, great prejudice and irreparable loss would occasion the Respondents if at this stage the said application is allowed in favour of the Appellants as it would not only result in loss and damage to the building materials like cement, sand etc purchased at heavy cost by the Respondent No.1 to 3 but also the men and machinery hired by Respondents for the aforesaid construction on payment would go idle. 7. The answering Respondent further submits that the said application is liable to be dismissed as the balance of convenience and inconvenience is not in favour of the Appellants but in favour of Respondent No.1, 2 and 3. 8. To substantiate the statements made by the answering Respondents that the construction has reached an advanced stage now, photographs have been shown to this Court today by the learned Counsel for the Respondents. The said photographs are kept on record and marked X1 to X8. 9. The Appellant herein who is the original Plaintiff in the Title Suit No.07/2014 filed by them has sought for the following reliefs:- “(a) for a declaration that the lands covered by khasra Nos. 76, 77 and 78 measuring .2600 Hects., 1.3500 Hects and .1500 Hects. The said photographs are kept on record and marked X1 to X8. 9. The Appellant herein who is the original Plaintiff in the Title Suit No.07/2014 filed by them has sought for the following reliefs:- “(a) for a declaration that the lands covered by khasra Nos. 76, 77 and 78 measuring .2600 Hects., 1.3500 Hects and .1500 Hects. standing in the name of late Topching Bhutia @ Topchen Bhutia (Lama) are the ancestral property of the plaintiffs; (b) for a declaration that defendant no.1 after her marriage with Shri Passang Sherpa is a Sherpa and she is not entitled to the property of late Topching Bhutia @ Topchen Bhutia (Lama); (c) for a declaration a that the plaintiffs are entitled to right, title and interest in the property left by their grandfather late Topching Bhutia @ Topchen Bhutia; (d) for a declaration that the order dated 30.05.2003 passed by the learned Sub-Divisional Magistrate, Namchi (defendant No.6) allowing mutation of plot No.76 under khatiyan No.21 from the name of late Topching Bhutia @ Topchen Bhutia (Lama) to the name of defendant No.1 is arbitrary, illegal and void; (e) for a declaration that the order dated 06.06.2003 passed by the learned Sub-Divisional Magistrate, Namchi (defendant No.6) allowing mutation of plot No.76, 77 and 78 under khatiyan No.21 from the name of late Topching Bhutia @ Topchen Bhutia (Lama) to the name of defendant Nos. 2 and 3 are arbitrary, illegal and void; (f) for a declaration that the orders dated 30.05.2003 and 6.6.2003 are against the spirit and intention of Revenue order no. 1 of 1917; (g) for an order calling for the entire records from the office of the District Collector, South, Namchi (defendant No.5) and the Sub-Divisional Magistrate, Namchi (defendant No.6) relating to the mutation of the suit land; (h) for a declaration for any other relief or reliefs to which the plaintiffs are entitled to; (i) for cost of the suit including advocate’s fees. And for this act of kindness the plaintiffs are every pray. SCHEDULE OF LAND All that part and parcel of the land covered by Parcha No.21 and Khasra Nos. 76, 77 and 78 measuring .2660 Hects., 1.3550 Hects. and .1500 Hects respectively standing in the name of late Topching Bhutia @ Topchen Bhutia (Lama) situated under Bermiok Thangasingh Block South Sikkim.” 10. SCHEDULE OF LAND All that part and parcel of the land covered by Parcha No.21 and Khasra Nos. 76, 77 and 78 measuring .2660 Hects., 1.3550 Hects. and .1500 Hects respectively standing in the name of late Topching Bhutia @ Topchen Bhutia (Lama) situated under Bermiok Thangasingh Block South Sikkim.” 10. The Appellants succeeded in the said title suit and a decree in their favour in terms of prayer “a to f” of the plaint was drawn. 11. It is an admitted fact that during the pendency of the Title Suit there was no construction in the suit property. Aggrieved by the judgment and decree passed by the Trial Court the Respondents herein preferred an Appeal before the first Appellate Court which by the judgment dated 07.04.2016 reversed the judgment and decree passed by the Trial Court. It is also an admitted fact there was no construction in the suit premise during the stage of the first Appeal. 12. The fact that the construction in the suit premises commenced during the pendency of present Appeal is certain. In reply to the specific averments made by the Appellants that the Appellants having come to know that the Respondents were constructing a new building in the suit premises on 23.06.2018 and that the said Respondents were hurriedly constructing the building in the suit premises the answering Respondents have averred that the allegation in the paragraph is misleading and false. The answering Respondents have also stated that they have already completed major portion of the construction of their building in question much before the said application was filed and such construction was very much visible to the public and to the Appellants in particular who resides not very far away from it. However, it is seen that the answering Respondent has failed to disclose as to when the construction was started in reply to the application for injunction. 13. Heard the learned Counsels appearing for the respective parties. 14. Mr. S.S. Hamal, learned Counsel for the Respondents would rely upon judgment of this Court in re: Smt. Pabitra Chhetri v. Shri Shiv Bahadur Dahal and Ors. rendered on 11.06.2013. He would submit that the facts of the present case is identical to the facts of the said case. 13. Heard the learned Counsels appearing for the respective parties. 14. Mr. S.S. Hamal, learned Counsel for the Respondents would rely upon judgment of this Court in re: Smt. Pabitra Chhetri v. Shri Shiv Bahadur Dahal and Ors. rendered on 11.06.2013. He would submit that the facts of the present case is identical to the facts of the said case. He would submit that in similar fact situation this Court had taken an undertaking from the party who had constructed a building and on the basis of that undertaking this Court would deny injunction to the other party. 15. This Court has perused the said judgment. The facts of the case cited by Mr. S.S Hamal, learned Counsel for the Respondents is quite different from the facts of the present case. Evidently in the case in re: Smt. Pabitra Chhetri, the RCC construction had taken place prior to the filing of the Suit and as such, the plaint itself had a specific prayer seeking a declaration that the RCC building constructed by the Defendant falls within the portion of 50 ft of the road reserve area and in the portion of suit land which is both illegal and unauthorized and that he shall remove and/or dismantle the same therefrom at their own cost and peril. Taking note of the specific prayer as above this Court came to the view that if the first Respondent therein succeeds in the Suit he would be entitled to recover the possession of the entire extent of his land allegedly executed upon by the third Appellant therein and also would be entitled to have the illegal construction put up by the third Appellant therein upon his land recovered through process of Court. In such view of the matter and taking into consideration the fact that from documents placed on record it was clear that the khas possession was with the third Respondent therein this Court came to the view that the balance of convenience was with the third Appellant therein. In such view of the matter and taking into consideration the fact that from documents placed on record it was clear that the khas possession was with the third Respondent therein this Court came to the view that the balance of convenience was with the third Appellant therein. In so far as question of irreparable injury was concerned this Court came to the view that with the specific assurance given to this Court by the third Appellant therein in the event of a decree of restoration of possession being granted the first Respondent therein could recover not only the entire land of the first Respondent but also the construction was a natural accretion to the first Respondent’s land this Court set aside the impugned order passed by the Court below. 16. However, the facts of the present case is quite different. Admittedly, the construction activity of the Respondents started only at the stage of the present Appeal. As such, there was no prayer for stopping the construction in the plaint filed by the Appellants before the Trial Court. From perusal of the two sets of photographs produced by the Appellants as well as by the learned Counsel for the Respondents today it is evident that the construction had commenced during the pendency of the present Appeal and at the stage of filing of the injunction application the construction which was visibly of constructing the columns only has now today reached the stage of almost completion. 17. If the Appellants were to succeed in the present Appeal they would be entitled to the original decree passed by the learned Trial Judge which is in effect would be for a declaration that the Respondent No.1 was not entitled to the property and for a further declaration that the Appellants were entitled to right title and interest in the property left by their grandfather. It is not in dispute that it is the same property on which the present construction is going on. The Respondents would have done well to have shown a little restraint and patience then to start the construction during the pendency of this Appeal and seek to complete it before the injunction application is even heard and decided. This would amount to frustrating the very purpose for which the application has been filed. Prima facie the Court of Trial had decreed the Title Suit in favour of the Appellants. This would amount to frustrating the very purpose for which the application has been filed. Prima facie the Court of Trial had decreed the Title Suit in favour of the Appellants. The suit land during the Trial as well as the first Appeal did not have any construction therein. There is not a single assertion in the reply filed by the Respondents as to the need to undertake the construction on an urgent basis during the pendency of this Appeal and to seek to complete it even before the hearing. Changing the nature of the suit property during the pendency of the Appeal would vitally effect the rights of the parties which is yet to be confirmed by this Court. It would also lead to multiplicity of litigation between the parties. Thus, keeping in mind the settled principle of the law, prima facie case, balance of convenience and irreparable injury this Court is of the view that the Respondents must be restrained from their construction activities in the Suit premise during the pendency of this Appeal. 18. Since construction has already reached a substantial stage of progress, this Court deems it fit and proper to direct the Respondents to maintain status quo on the construction as on date and no further construction shall take place during the pendency of the present Appeal. 19. The Application is disposed off.