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2019 DIGILAW 1415 (JHR)

Shashi Bhusan Prasad v. Anil Kumar Sahay

2019-08-11

SUJIT NARAYAN PRASAD

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JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 14.08.2018 whereby and whereunder the order dated 20.05.2017 passed by Civil Judge Senior Division, Bokaro in Title Suit No.77 of 2011 by which petition filed under Order XXXIX Rule 1 & 2 of CPC filed by the plaintiff has been allowed by passing an ad-interim order to maintain status quo. The said order has been assailed by the defendant No.9, the petitioner herein under Order XLIII Rule 1(r) of CPC before the competent Civil Court having its jurisdiction which has also been dismissed vide order dated 14.08.2018 passed in Civil Misc. Appeal Case No.16 of 2017. 2. The brief facts of the case of the petitioner as per the pleading made in the writ petition is that a suit has been filed for declaration of right, title and interest and possession of the plaintiff over the suit property which has been purchased from Ashok Vatika Sahkari Grih Nirman Samiti Ltd., Chira Chas through registered deed of sale vide deed No.3392 dated 27.05.1992 with a further relief that decree for permanent injunction be passed against the defendants restraining them from interfering with peaceful possession and title of plaintiff besides decree for cost of the suit. 3. The case of the plaintiff to the suit is that after coming to know from the defendant No.3 who has purchased the suit property from Ashish Chandra Modak and Nitya Nand Modak. Radha Nath Modak is the grandfather of Ashish Chandra Modak and Nitya Nand Modak purchased land from original raiyat Sashi Dutta and Kangal Dutta by registered sale deed No.12122 dated 15.11.1944 and sale deed No.10102 dated 06.09.1945. Ashish Chandra Modak and Nitya Nand Modak through registered attorney holder namely, Dilip Kumar Kejriwal sold suit property to Rabindra Kumar Singh @ Robin Singh and Bibhash Chandra Panjiyar by registered sale deed No.1803 dated 17.02.2011. 4. The case of the plaintiff is that he has purchased the suit property in the year 1992 and also taken delivery of possession by surrounding boundary wall. He started construction over the purchased land in the month of June, 2011 but the defendant No.2 & 5 have made hindrance upon the same which resulted into filing of suit by the plaintiff. He started construction over the purchased land in the month of June, 2011 but the defendant No.2 & 5 have made hindrance upon the same which resulted into filing of suit by the plaintiff. The further case of the plaintiff is that during pendency of the suit he when came to know that the said construction work was going on over his purchased land by demolishing his boundary wall which has been brought to the notice of the concerned police station informing that the suit pertaining to title over the land in question is pending and led the petitioner to file a petition under Order XXXIX Rule 1&2 of the CPC. 5. The said petition has been allowed by the trial court by passing an order to maintain status quo by the parties against which the appeal has been preferred which has also been dismissed. The case of the petitioner herein is that he has purchased the landed property in question sometime in the year 2012, thereafter he has been impleaded as party as defendant No.9. Further case of the petitioner is that he has not been impleaded as party in petition filed under Order XXXIX Rule 1&2 of CPC but in pursuance to the order passed by the trial court, the copy of the petition has been served upon the counsel appearing for defendant No.9, the petitioner herein, and accordingly opportunity of hearing has been provided. 6. Mr. Deepak Kr. Bharti, learned counsel for the petitioner has submitted by raising the legal issues that while granting ad-interim stay, the basic principles to keep in mind are that there must be prima facie case, balance of convenience and irreparable loss but according to him, the trial Court while passing an order under Order XXXIX Rule 1&2 has not taken into consideration the said basic principles and granted ad-interim stay to maintain status quo. 7. His further submission is that the petitioner according to him is not in possession of the landed property in question, as such, he has got no prima facie case, therefore, the interim order to maintain status quo is not fit to be sustainable. 8. Learned counsel for the petitioner has relied upon a judgment rendered by Hon’ble Apex Court in the case of Kishore Kumar Khaitan & Anr. vs. Praveen Kumar Singh, reported in (2006) 3 SCC 312 . 9. 8. Learned counsel for the petitioner has relied upon a judgment rendered by Hon’ble Apex Court in the case of Kishore Kumar Khaitan & Anr. vs. Praveen Kumar Singh, reported in (2006) 3 SCC 312 . 9. This Court after having heard the learned counsel for the petitioner and going across the pleading made in the writ petition is not repeating the factual aspect since the same has already been referred hereinabove and straightway coming to the finding recorded by the trial court as also the appellate court. 10. It is evident from the finding recorded by the trial court as has been annexed as Annexure-11 to the writ petition that the trial court has formulated the issues before considering as to whether it is a case for granting ad-interim stay or not. The issue framed are: (i) Whether the plaintiff has prima facie case. (ii) Whether the balance of convenience lies in favour of the plaintiff. (iii) Whether the plaintiff will suffer irreparable loss if the injunction is not allowed. 11. The issue No.1 which pertains to the prima facie case available with the plaintiff or not, the discussion has been made by taking into consideration the fact that the suit is for declaration about title in favour of the plaintiff who is claiming his title over the suit property by virtue of purchasing it from Ashok Vatika Sahkari Grih Nirman Samiti Ltd., Chira Chas through registered deed of sale vide deed No.3392 dated 27.05.1992 after payment of valuable consideration. 12. The further consideration has been made by taking into consideration the pleading about start of the construction work over the land in question as also giving boundary wall, the same has been said to be demolished on behest of the defendant Nos.2&5 and the construction work has been started on their behest i.e., defendant Nos.2&5 which led the plaintiff to file the present suit being Title Suit No.77 of 2011. The trial court after taking into consideration the registered sale deed No.3392 dated 27.05.1992 came to the conscious finding about having prima facie case in favour of the plaintiff. 13. Mr. Deepak Kr. Bharti, learned counsel for the petitioner while submitting about prima facie case has emphatically argued that since the plaintiff is not in possession of the land and as such it cannot be said that there is prima facie case in his favour. 13. Mr. Deepak Kr. Bharti, learned counsel for the petitioner while submitting about prima facie case has emphatically argued that since the plaintiff is not in possession of the land and as such it cannot be said that there is prima facie case in his favour. Such ground is not acceptable to this Court for the reason that when a suit has been filed for declaration of right and title which has got nothing to do with the possession and furthermore taking into consideration the assertion made by the plaintiff in the plaint that the possession of the land has been taken by giving boundary wall but the same has been demolished on the behest of defendant Nos.2&5 when a suit for declaration of right and title has been filed by the plaintiff with the prayer to deliver the possession in his favour that does mean that the plaintiff is accepting that he is not in possession otherwise prayer for delivery of possession would not have been there. 14. The prima facie case is only to be seen on the basis of instrument upon which the plaintiff is claiming his title and the said instrument is the registered sale deed which was executed on 27.05.1992 as per the provision of Transfer of Property Act the finding would be said to be proper if the instrument has been created in consonance with the provision of Transfer of Property Act and the Registration Act read together, therefore, it cannot be said that merely because the petitioner is not in possession of the land in question he is having no prima facie case and if the said finding would be accepted, it would be in complete ignorance of the registered sale deed No.3392 dated 27.05.1992. 15. 15. The question of balance of convenience has also been discussed as above and holding it in favour of the plaintiff, this Court, after going across the pleading made as has been recorded herein, is of the view that the said finding cannot be said to suffer from infirmity in view of the fact that when there is a prima facie case in favour of the plaintiff and if the order of status quo has been passed keeping the fact into consideration that the defendant Nos.2&5 has started construction over the land in question which has been admitted by the learned counsel for the defendant No.9 who is subsequent purchaser in course of pendency of the suit, it cannot be said that balance of convenience does not lies in favour of the plaintiff. 16. The question of irreparable loss has also been taken into consideration since the petitioner is claiming to purchase the property by virtue of registered sale deed and if any construction would be made the same will be said to be a loss in favour of the plaintiff and the defendant No.9 who is admitting his possession by purchasing the property in course of pendency of suit it cannot be said that the petitioner will not be subjected to irreparable loss. 17. This Court also deems it fit and proper to deal with the judgment relied upon by the learned counsel for the petitioner in the case of Kishore Kumar Khaitan & Anr. vs. Praveen Kumar Singh (supra). In the said case, the Hon’ble Apex Court while dealing with the case of status quo wherein the order of status quo has been passed has considered the factual aspect and given observation along with the finding that the prima facie case is to be shown before passing interim order of maintaining status quo. vs. Praveen Kumar Singh (supra). In the said case, the Hon’ble Apex Court while dealing with the case of status quo wherein the order of status quo has been passed has considered the factual aspect and given observation along with the finding that the prima facie case is to be shown before passing interim order of maintaining status quo. It is settled position of law that the judgment will have its binding effect if any ratio has been laid down and the judgment rendered by the higher Court is not ipso facto applicable rather it depends on the facts and circumstances of each and every case, herein the fact is not pertaining to eviction of the tenant rather the suit herein pertains to the declaration of right and title and when the trial court after taking into consideration the nature of issues which is to be adjudicated i.e., pertaining to title, as such after taking into consideration the prima facie case, balance of convenience and irreparable loss has passed an order, therefore, on fact the judgment rendered by the Hon’ble Apex Court in the case of Kishore Kumar Khaitan & Anr. vs. Praveen Kumar Singh (supra) is not applicable in this case. 18. This Court, after taking into consideration the aforesaid finding based upon the cogent reasoning and the said order has been scrutinized by the trial court wherein the finding recorded by the trial court has been confirmed, therefore, is of the view that while exercising the power of supervisory jurisdiction as conferred under Article 227 of the Constitution of India, the court having such jurisdiction is only to look into the error apparent on the face of record but after going across the finding recorded therein since the petition filed under Order XXXIX Rule 1&2 has been dealt with basing upon the well founded reasons, as such, according to the considered view of this Court the same does not warrant any interference. 19. In view thereof, the writ petition fails and stands dismissed.