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2019 DIGILAW 577 (CAL)

Abdul Matin Ahamed v. Nawab Ali Molla (Shahji)

2019-05-08

SABYASACHI BHATTACHARYYA

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JUDGMENT : Sabyasachi Bhattacharyya, J. The present challenge is directed against an order whereby the appellate court affirmed an order passed by the trial Judge, refusing an ad interim prayer for injunction made by the plaintiffs/petitioners in a suit for declaration of title and permanent injunction. 2. The petitioners filed a suit for declaration that the petitioner nos. 1 to 4 are the absolute owners, that is, raiyat of the suit property, for permanent injunction restraining the defendants and their men and agents from interfering with the plaintiffs' peaceful use and enjoyment of the suit property, from coming or entering in the suit property and from dispossessing the plaintiffs from the suit property, along with ancillary reliefs. It was alleged in the plaint that a brickfield business was being carried on over the suit property. The petitioners claimed ownership in respect of a portion of the entire suit property, to the extent of 1.455 acre. Such purchased land was an undemarcated one and the petitioners claimed to be co-owners in respect of the suit property on the strength of such deeds. 3. Previous to such purchases and apart from those, the petitioner nos. 1 to 4 were lessees in respect of the entire suit property, comprised of about 6.90 acre. All the said leases, though, expired in or before the year 2003. 4. The plaintiffs had obtained trade licences from time to time, for running a brickfield business on the suit property, which were produced in the courts below. 5. Tax receipts and Pollution Control Board challans were also produced by the petitioners in support of their claim of running a brickfield. Certain rent receipts and the relevant deeds of lease were also produced in support of the plaint case in the courts below. 6. The opposite parties, on the other hand, claim title to the suit property on the basis of purchase of 2.28 acre out of the total suit property by the defendants/opposite party nos. 2 and 3. However, naturally, at the ex parte ad interim stage, there was no scope of the defendants/opposite parties filing pleadings or documents. 7. 6. The opposite parties, on the other hand, claim title to the suit property on the basis of purchase of 2.28 acre out of the total suit property by the defendants/opposite party nos. 2 and 3. However, naturally, at the ex parte ad interim stage, there was no scope of the defendants/opposite parties filing pleadings or documents. 7. Learned senior counsel appearing for the petitioners argues that in view of overwhelming evidence to prove the petitioners' co-ownership in respect of their purchased portion of the suit property and lawful possession in respect of the entire suit property, the appellate court acted without jurisdiction in affirming the ad interim refusal of injunction passed by the trial court. 8. It is argued that nothing was produced by the opposite parties even at the appellate stage, let alone any documentary evidence, to rebut the presumption of continuance of possession by the petitioners in respect of the entire property, even after the expiry of the lease deeds. It is submitted that in the absence of any proof as to dispossession of the petitioners even after the expiry of the last lease, the courts below ought to have drawn a presumption of continuance of possession as contemplated in Section 114 of the Indian Evidence Act. 9. It is argued on behalf of the petitioners that even subsequent to expiry of the lease deeds in 2003, the records of rights reflected the possession of the petitioners, extracts of which were produced in the court below. The petitioners also produced in the court below several rent receipts granted by the owners in favour of the petitioners, apparently issued after expiry of the last lease. Learned senior counsel relies upon several annexures to the revisional application in this context. 10. The petitioners also rely on a report filed in connection with a proceeding under Section 144 of the Code of Criminal Procedure initiated by the petitioners, which apparently indicated the possession of the petitioners and the existence of several installations necessary for running a brickfield. However, no clear indication of the said business being run currently was evident from such report. 11. However, no clear indication of the said business being run currently was evident from such report. 11. Learned senior counsel for the petitioners also places reliance on the several rent receipts granted in favour of the petitioners subsequent to the expiry of the lease period and claimed on the strength of such documents that the petitioners were, in any event, tenants at sufferance in respect of the entire suit property, apart from being the owners of the purchased portion of 1.455 acre. 12. It is further argued on behalf of the plaintiffs/petitioners that they purchased their portion of the suit property between the years 2008 to 2009 and the defendant nos. 2 and 3 purportedly purchased about 2.28 acre out of the suit property only in the year 2010. No evidence was produced at all by the opposite parties to establish that, apart from the sale deeds, which could be mere paper transactions, there was actual physical transfer of possession, even in respect of such allegedly purchased portion, in favour of the opposite parties. 13. Learned counsel for the opposite parties argues that the petitioners did not produce any sale deed in support of their contention of purchase of 1.455 acre of land. 14. Moreover, post-2003, the petitioners could not produce any conclusive proof of their physical possession in respect of the suit premises. Mere production of purported rent receipts could not amount to concrete proof of possession and/or any be the foundation for a claim of right, title and/or interest against true owners. Moreover, the report produced in connection with the criminal proceeding itself shows that the brickfield business on the suit premises was not in a running condition even at the said point of time. 15. Mere pleadings as to purchase, in the absence of any sale deeds, could not substantiate the claim of the petitioners, even prima facie. Even the licences produced by the petitioners were manufactured documents with several discrepancies, as per the contesting opposite parties. 16. It is argued that, in the absence of any proof of continuance of possession, particularly physical possession, no relief of injunction could be passed in favour of the petitioners. 17. Possession, even if existent, could not be protected by an order of injunction passed by a court of law unless such possession was shown to be lawful and based on valid legal rights. 17. Possession, even if existent, could not be protected by an order of injunction passed by a court of law unless such possession was shown to be lawful and based on valid legal rights. Hence, it is argued, the courts below were justified in refusing injunction to the petitioners. 18. Learned counsel for the opposite parties further points out to certain apparent discrepancies between the licences produced by the petitioners in respect of their brickfield business. In particular, referring to the annexures at page-611 and page-619, learned counsel submits that those are at gross variance with the documents at page-236, which are supposed to pertain to the same licence. Hence, the documents produced in support of possession by the petitioners are argued to be manufactured papers. 19. Learned counsel for the contesting opposite parties places reliance upon a judgment reported at [Dalpat Kumar and another vs. Prahlad Singh and others, (1992) 1 SCC 719 ]. The Supreme Court, in the said judgment, specified as to what were the criteria for grant of injunctions. It is argued that none of such criteria has been fulfilled in the present case. 20. Learned counsel for the contesting opposite parties further submits that the effect of grant of injunction would be to oust the opposite parties from even their purchased portion of the suit property. As such, the courts below were justified in refusing injunction to the petitioners. 21. Learned senior counsel for the petitioners, in reply, points out that the discrepancies alleged in the annexures at pages-619 and 611 on the one hand and page-236 on the other, are no discrepancies at all, since those were copies of licence issued by the authorities at different points of time. Such fact is evident from the dates of renewal given on the respective second pages of the licence, which contained different renewal dates as per chronology of issuance, the later documents containing more current dates of renewal than the earlier ones. 22. As such, there was no variance between the documents produced by the petitioners at all. It is reiterated that the petitioners are in possession of at least a portion of the suit property as co-owners and their dispossession/ouster from the other portions have not been proved at all. Relevant details of their purchase deeds were given in the pleadings. 22. As such, there was no variance between the documents produced by the petitioners at all. It is reiterated that the petitioners are in possession of at least a portion of the suit property as co-owners and their dispossession/ouster from the other portions have not been proved at all. Relevant details of their purchase deeds were given in the pleadings. Such purchases conferred title in favour of the petitioners as co-sharers over every inch of the suit property. Hence, it is argued that the judgments and orders of the courts below ought to be set aside. 23. A perusal of the materials on record show that the claim of the contesting opposite parties is restricted to 2.28 acre out of the total disputed property of 6.90 acre. The defendant nos. 2 and 3 claim title over the said portion of the property by virtue of purchase deeds. 24. This apart, the LR records of rights apparently contain entries prima facie showing the possession of the defendant nos. 2 and 3 in respect of the said 2.28 acre of land. 25. On the other hand, the petitioners rely on purchase deeds conferring ownership rights on the petitioners in respect of 1.455 acre out of the said total area of 6.90 acre. 26. The plaintiffs/petitioners have further pleaded that the entire 6.90 acre of property, comprised of shali, bagan, danga land and tank, was settled in favour of predecessor-in- interest of the petitioners, and thereafter in favour of the petitioners, by the original owners, being the opposite party nos. 7 to 28, by virtue of several lease deeds executed at various points of time, lastly expiring in the year 2003. 27. The petitioners argue that the opposite party nos. 1 to 6, who are the contesting opposite parties, could not produce any proof of dispossession of the petitioners from the entire suit property, comprised of 6.90 acre, at any point of time, even subsequent to the expiry of the last lease deed. 28. Looking into the facts of the case, however, there are certain indicators which show that the opposite party nos. 2 and 3, upon their purchase, have obtained physical possession in respect of the said purchased portion comprised of 2.28 acre. 29. 28. Looking into the facts of the case, however, there are certain indicators which show that the opposite party nos. 2 and 3, upon their purchase, have obtained physical possession in respect of the said purchased portion comprised of 2.28 acre. 29. Apart from the presumption created by the documents of title, that is, transfer deeds, in favour of the said opposite parties, which automatically raise presumption of possession, the report of the Amin, who acted as Inspector in a previous proceeding, shows that the respective parties in the said proceeding were in occupation of their respective shares as per the sale deeds. This shows that there is prima facie proof of the opposite party nos. 2 and 3 being in possession of their purchased portion of the suit property. 30. Moreover, the Amin's report reveals that the brickfield, which was being run by the petitioners, was not functioning at the time of preparation of such report. 31. Even apart from the aforesaid considerations, the petitioners, who have apparently no present legal title in respect of the suit property barring their purchased portion of 1.455 acre, cannot obtain injunction against the opposite party nos. 2 and 3, who are the present lawful owners of the their own purchased portion. This consideration, read in conjunction with the report of the Amin, relied on by the petitioners themselves, go on to show that no injunction ought to be granted in favour of the plaintiffs/petitioners in respect of the said 2.28 acre of property. 32. However, since the plaintiffs have made out a case of continuance of physical possession in respect of the suit property even apart from the petitioners' purchased portion and have annexed rent receipts to their injunction application, which might create a prima facie case in favour of the plaintiffs having held over the tenancy, it would be unwise to refuse injunction to the petitioners in respect of the said portion of the property. 33. Apart from no dispossession of the plaintiffs having been proved at any point of time, the existence of the brickfield, functioning or not, on the suit property has been effectively indicated by the report of the Amin filed in a previous proceeding between the same parties. 34. 33. Apart from no dispossession of the plaintiffs having been proved at any point of time, the existence of the brickfield, functioning or not, on the suit property has been effectively indicated by the report of the Amin filed in a previous proceeding between the same parties. 34. Although learned senior counsel appearing for the petitioners argues that the petitioners are tenants at sufferance by virtue of payment of rent even after the expiry of the last lease deed, no such specific pleading finds place either in the plaint or in the injunction application filed in the courts below by the petitioners. 35. The petitioners have made out a case of direct tenancy as non-agricultural tenants/raiyats under the Government in their pleadings, but such case might run inconsistently with the argument of tenant at sufferance under the landlords themselves. 36. Yet, it is premature at this juncture to close the parties on their arguments and/or pleadings and proof, since there is still ample scope for the parties to make out alternative cases and/or to amend their pleadings and furnishing further proof during the course of trial. 37. All that the court is to see at the ad interim stage is whether a prima facie case to go for trial has been made out, sufficient for the grant of injunction, apart from the balance of convenience and inconvenience being in favour of such grant and the risk of irreparable injury in case of non-grant and urgency. Prima facie title need not be proved to the hilt at the ad interim stage. 38. In the present case, the petitioners have sufficiently established prima facie that they were lessees in respect of the entire 6.9 acre of suit property at least till the year 2003 and have purchased a portion of undemarcated share in the said property. Even if the petitioners are co-sharers of the property, they cannot be ousted during the pendency of the suit. Moreover, the opposite parties have not established any claim over the rest of the property apart from the 2.28 acre, also undemarcated, purchased by them. In such view of the matter, since the Amin reported that the parties were in possession in respect of their respective purchased portions, it would serve the ends of justice in the event the plaintiffs are refused injunction only in respect of the 2.28 acre purchased by the opposite party nos. In such view of the matter, since the Amin reported that the parties were in possession in respect of their respective purchased portions, it would serve the ends of justice in the event the plaintiffs are refused injunction only in respect of the 2.28 acre purchased by the opposite party nos. 2 and 3, as described in their purchase deeds. 39. As regards the rest of the suit property, the petitioners have made out a sufficient prima facie case to go for trial, inasmuch as the brickfield is still existent, irrespective of whether it is functioning or not, and several licences and other documents have been produced which create a prima facie presumption of the said brickfield business being still alive. 40. The dispossession of the plaintiffs after the expiry of the lease periods was not established at all. The petitioners have also made out sufficient prima facie case in respect of their alternative cases of co-ownership, direct tenancy under the Government and/or tenancy at sufferance, to entitle them to injunction restraining the opposite party nos. 1 to 6 from disturbing the possession of the plaintiffs in respect of the suit property. 41. As regards the veracity of the licences produced by the petitioners, the arguments advanced by the contesting opposite parties cannot be accepted, since there is no specific and particular pleading as to those documents being manufactured and/or forged. Even apart from the absence of such pleadings, a plausible explanation has been furnished by the petitioners as to the several licences relied on by them having been issued at different points of time, which is evident from the different dates of renewal thereon and which sufficiently explains the minor discrepancies therein. 42. Since the Amin's report has not been disputed by either of the parties, the same also can be a prima facie basis to grant injunction in respect of the entire suit property, except the purchased portions of the opposite party nos. 2 and 3. 43. As regards balance of convenience and inconvenience, in view of production of trade licences and other documents to show the existence of a brickfield on the suit property, as corroborated by the Amin's report, the balance of convenience and inconvenience is in favour of protecting the continuance of the petitioners' possession and enjoyment of the said brickfield. 43. As regards balance of convenience and inconvenience, in view of production of trade licences and other documents to show the existence of a brickfield on the suit property, as corroborated by the Amin's report, the balance of convenience and inconvenience is in favour of protecting the continuance of the petitioners' possession and enjoyment of the said brickfield. Moreover, irreparable injury may result in the event the petitioners are ousted from possession due to refusal of injunction, which could not be compensated by costs and could not even be evaluated in their pecuniary terms. The pleadings in the injunction application have to be taken as sacrosanct for the purpose of deciding ad interim prayers of injunction. The pleadings in the injunction application, filed before the trial court, sufficiently brings out the urgency involved in the matter, further justifying the grant of injunction. 44. Accordingly, C.O. No.4303 of 2018 is allowed in part, thereby setting aside the impugned orders of both the courts below and granting injunction restraining the opposite party nos. 1 to 6 from disturbing the peaceful possession and enjoyment of the petitioners in respect of the suit property, comprised of 6.90 acre, except the purchased portions of the opposite party nos. 2 and 3, comprised of 2.28 acre, as described in the purchase deeds produced by the opposite party nos. 2 and 3, till disposal of the temporary injunction application pending at the behest of the petitioners in Title Suit No. 132 of 2017 before the Civil Judge, Senior Division, Seventh Court at Alipore, District : South 24-Parganas. 45. It is made clear that this court has not gone into the merits of the case and the findings rendered above are tentative, restricted to the adjudication of the prayer for ad interim injunction only. The trial court will be free to proceed with the hearing and disposal of the injunction application and the suit independently on their own merits, without being unduly influenced in any manner by any of the observations made herein or in the order impugned herein. 46. There will be no order as to costs. 47. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.