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2019 DIGILAW 756 (CAL)

Subhas Chandra Basu v. Belgachia Friends' Union

2019-07-29

SABYASACHI BHATTACHARYYA

body2019
JUDGMENT : Sabyasachi Bhattacharyya, J. Let the affidavit of service filed in Court today be kept on record. 2. Leave is granted to the petitioners to file certified copy of the trial court's order. 3. The present challenge has been preferred by the defendants in a suit at the instance of the opposite party-club, primarily for declaration that the legal heirs of the predecessor-in-interest of the petitioners had never acquired any right over the suit property and certain other negative declarations challenging the title of the defendants/petitioners in the suit property and for permanent injunction restraining the petitioners from interfering with the peaceful possession of the opposite party of the suit property, allegedly occupied by the plaintiff/opposite party, and causing any hindrance to performance of puja and other celebrations on the suit property. In the said suit, upon an injunction application being moved on behalf of the opposite party, the trial court refused ad interim injunction, against which an appeal was preferred by the opposite party, in which an ad interim status quo was granted by the appellate court. The said order of the appellate court is the subject-matter of challenge in the present revisional application. 4. Learned counsel for the petitioners argues that previously two writ petitions were filed, respectively by one Dipendra Nath Basu and the present petitioners, on a dispute as to the right of the opposite party-club and its members to perform 'puja' and other activities on the suit property. 5. The said writ petitions culminated in an order by a coordinate Bench recording that interest of justice would be sub-served by permitting the petitioners and the members of the club, which the petitioner sought to represent, to hold Saraswati Puja at such locale for that year only, which order would not be construed as a permission to hold Saraswati Puja at that locale for any subsequent year. The petitioners and the members of the club were directed to vacate the plot on February 12, 2019 by 1800 hours. In the event the petitioners or any members of the club or any other person did not vacate the plot in such time, the private respondent was at liberty to take police assistance to remove all occupiers from the plot. In the event the petitioners or any members of the club or any other person did not vacate the plot in such time, the private respondent was at liberty to take police assistance to remove all occupiers from the plot. The concerned Officer-in-Charge of the local police station was directed to render adequate police assistance to the petitioner to remove other person which the petitioner asked to be removed from that locale, on February 12, 2019 at 1800 hours. The order, it was observed, would not prejudice any of the parties in any of the pending proceedings. These observations were made by the co-ordinate Bench in an order dated February 8, 2019 passed in W.P. No.1821(W) of 2019, heard with W.P. No.3084(W) of 2019. By a subsequent order dated February 15, 2019, the co-ordinate Bench observed that the writ petitioner in W.P. No.1821(W) of 2019, that is, the said Dipendra Nath Basu, had made over possession to the present petitioners, which was not disputed by any of the parties. The present petitioners, who were writ petitioners in W.P. No.3084(W) of 2019, were granted police assistance to erect boundary wall by the coordinate Bench, by requesting the police to render adequate protection to such petitioners to erect the boundary wall in accordance with law. Such order was challenged before a Division Bench of this Court which, vide Order dated April 2, 2019 passed in MAT 289 of 2019, disposed of the appeal by affirming the direction of the learned Single Judge upon the police authorities to render adequate protection to the respondent nos. 1 to 4 to erect the boundary wall in accordance with law. However, it was clarified by the Division Bench that the expression "in accordance with law" would mean that the respondent nos.1 to 4 were required to approach the civil court where the title suit was pending, for the purpose of obtaining an order for inspection prior to erection of boundary wall by invoking the provision of Order XXXIX Rule 7 of the Code of Civil Procedure for the purpose of identifying the extent of area where the boundary wall was to be erected. The civil court was directed to hear out such application within a limited period. The civil court was directed to hear out such application within a limited period. By relying on such observations, learned counsel submits that it was established up to the Division Bench of this Court that the present petitioners were in possession and the opposite party-club was not. 6. It is next submitted that Dipendra Nath Basu and others previously filed Title Suit No.67 of 2016 and had failed to obtain an order of injunction of a similar nature against the petitioners in respect of the property-in-suit. As such, it is argued that the appellate court ought not to have granted a status quo order, without taking into consideration that the opposite party-club and its members had failed to obtain a similar order before several forums previously. 7. Learned counsel relies on an unreported judgment of this Court passed by a Division Bench on June 19, 2017 in FMAT No.463 of 2017 (Belur Sree Guru Sangha and others Vs. M/s Ghata Balaji Realded Private Limited and others) for the proposition that a club, being an indeterminate body, could not claim adverse possession. However, once the club was registered, it could do so. In the said case, the Division Bench further held that exercise of possessory right by playing some games and/or organizing some social welfare programmes over somebody else's property even for a long period, cannot "conform into" title as exercise of such possessory right can never be continuous as possession of the club people terminates everyday when the games and/or social welfare programmes are over. 8. Learned counsel for the petitioners next cites a judgment of the Supreme Court reported at (2018) 11 SCC 449 (Dharampal (Dead) through legal representatives Vs. Punjab Wakf Board and others), in support of the proposition that the plea of adverse possession cannot be set up by a plaintiff to claim ownership over the suit property but such plea can be raised by the defendant by way of defence. In that case, the defendant, in a counter claim, had sought declaration of his ownership on the basis of adverse possession, which was held not maintainable since a counter claim was on the same footing as a plaint. 9. In that case, the defendant, in a counter claim, had sought declaration of his ownership on the basis of adverse possession, which was held not maintainable since a counter claim was on the same footing as a plaint. 9. It is further submitted on behalf of the petitioners that the registered club-room of the opposite party-club was shown to be at some other address than the suit property and the suit property was only mentioned in the letterhead of the opposite party as 'puja prangon', which lends credence to the argument that the opposite party never was in adverse possession of the suit property. 10. In countering such arguments, learned counsel for the opposite party submits that the previous writ petition was not filed by any of the members of the opposite party-club or, for that matter, the club itself. Even the present petitioners, in their writ petition, had admitted that the suit property was occupied by one Bharat Sangha Club and not the opposite party. As such, it is argued that whatever order was passed in the previous writ petitions, could not bind the opposite party-club, since the opposite party was never represented in the said proceedings. 11. Learned counsel further submits that the opposite party was merely a proforma defendant in the previous suit filed by the said Dipendra Nath Basu and others and no relief had been claimed against the present opposite party therein. It is, thus, argued that the failure of the said Dipendra Nath Basu and others to obtain an injunction in the previous suit could not be a bar to the oppositeparty asking for an order of status quo in the present suit. Learned counsel for the opposite party cites a judgment of a learned single Judge of the Madras High Court reported at AIR 1996 Madras 290 (Sathruppa Naicker and others vs. Ramasamy and others) for the proposition that a plea of adverse possession could very well be raised by a registered society even if the members of the society fluctuated from time to time. As such, it is argued that the appellate court was justified in passing an order of ad interim status quo in the matter. 12. As such, it is argued that the appellate court was justified in passing an order of ad interim status quo in the matter. 12. A perusal of the materials on record show that, although the present petitioners might have claimed that some other club was in possession of the suit property, Dipendra Nath Basu, who was the petitioner in one of the said writ petitions, categorically claimed that the opposite party-club was represented by the said Dipendra and that the opposite party-club was in possession of the suit premises. The previous order passed in the writ petitions and the connected appeal pertained to such plea of Dipendra Bath Basu and it was recorded by the co-ordinate Bench that the members of the club which the petitioner sought to represent (present opposite party-club) would hold Saraswati Puja at the locale for that year only and the members of that club were to vacate the plot on February 12, 2019.In a subsequent order, it was recorded that possession had been handed over pursuant to such order in favour of the petitioners, which was affirmed by the Division Bench. 13. In such view of the matter, it cannot be said that the opposite party was not represented in the previous writ petitions and also in the previous suit. It is noteworthy that in the first suit, that is, Title Suit No.67 of 2016, Dipendra Nath Basu and others, that is the plaintiffs therein, categorically alleged in paragraph no.4 of the plaint that several festivals were conducted on the suit property by establishing a club under the name and style The Belgachia Friends Union, being the present opposite party. It is also relevant to note that the present opposite party was arrayed as a proforma defendant and also filed a written statement, wherein it was never contended categorically that Dipendra Nath Basu had no locus standi to represent the opposite party-club. As such, the opposite party-club did not deny that it was represented by Dipendra Nath Basu in the writ petitions as well as the previous suit, where no injunction could be obtained by the plaintiffs therein on behalf of the opposite party-club. 14. As such, the opposite party-club did not deny that it was represented by Dipendra Nath Basu in the writ petitions as well as the previous suit, where no injunction could be obtained by the plaintiffs therein on behalf of the opposite party-club. 14. Moreover, as held by the Division Bench in its unreported judgment cited by the petitioners, mere playing of games or holding social functions on a property of some one else's does not confer possessory right amounting to adverse possession in favour of the club, since such 'adverse possession' begins and terminates everyday when the games and/or social welfare programmes comes to an end. 15. In the circumstances, in the absence of any material to establish open, uninterrupted, continuous and hostile possession of the opposite party-club in respect of the suit property, the appellate court acted palpably without jurisdiction in granting an order of status quo. 16. It is further to be considered that the injunction sought by the opposite party-club in its temporary injunction application was a restraint order on the defendants and their men and agents from creating any obstruction or hindrance to the act of performing Kalipuja every year and sports and athletics at all times in the suit property and/or interfering with the peaceful possession of the plaintiff by way of creating disturbance to the act of celebrating Kalipuja every year and performing all kinds of sports and athletics on the suit property. As such, the entire scope of the temporary injunction application was confined to performance of Kalipuja and conducting sports activities on the property. The prayer portion of the injunction application also referred to the acts of celebrating Kalipuja and performing sports activities, which were of transient nature on the face of it and could not be continuous and uninterrupted possession. On such prayer, the appellate court actedentirely without jurisdiction to grant a blanket status quo order. In such view of the matter, the impugned order cannot be sustained. 17. Accordingly, C.O. No. 2426 of 2019 is allowed on contest, thereby setting aside Order No.2 dated July 9, 2019 passed by the Additional District Judge, First Court at Sealdah in Miscellaneous Appeal No.22 of 2019 and reviving the order of ad interim refusal of injunction passed by the trial court in Title Suit No. 160 of 2019. 18. 17. Accordingly, C.O. No. 2426 of 2019 is allowed on contest, thereby setting aside Order No.2 dated July 9, 2019 passed by the Additional District Judge, First Court at Sealdah in Miscellaneous Appeal No.22 of 2019 and reviving the order of ad interim refusal of injunction passed by the trial court in Title Suit No. 160 of 2019. 18. It is, however, made clear that the observations made in this order will not affect the parties at any further stage of the proceedings, including the miscellaneous appeal, the injunction application in the court below as well as the suit itself, and the courts below will be free to proceed in their own way without being unduly influenced by the observations made herein. 19. There will be no order as to costs. 20. Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.