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2019 DIGILAW 794 (CAL)

Nemai Chandra Mahalder v. Dilip Ram

2019-08-09

HARISH TANDON, HIRANMAY BHATTACHARYYA

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JUDGMENT : HIRANMAY BHATTACHARYYA, J. 1. The defendant Nos. 9 to 11 in a suit for declaration of title, partition and for permanent injunction have preferred the instant appeal against the judgment and order being No. 28 dated December 19, 2018, passed by the Learned Civil Judge, (Senior Division), 2nd Court at Malda, in Title Suit (Partition) No. 166 of 2017 whereby an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure filed by the plaintiffs as well as the application under Order 39 Rule 4 of the Code filed by the defendant Nos. 9 to 11 were disposed of by directing both the parties to maintain status quo in respect of nature, character and possession of the suit property as on that date till the disposal of the suit. 2. The plaint case in a nutshell runs as follows: One Baseruddin Mondal was the owner of RS Dag No. 210 measuring about 445 decimals out of 890 Decimal in RS Dag No. 210. The suit property is a tank and has been described as schedule "Ka" property in the plaint of the said suit. After a portion of the RS Dag No. 210 stood vested to the State, the remaining portion measuring about 445 Decimals was recorded under Khatian No. 149 in the name of Abinash Chandra Chakraborty. Baseruddin Mondal while owning and possessing the 8 annas share in the suit property died. Upon his death his right, title and interest devolved upon his son Khalek Mondal. Khalek Mondal subsequently died and upon his death his only son Mahabur Mondal being the plaintiff No. 2 inherited the right, title and interest to the extent of 8 annas share in the "Kha" schedule property. The plaintiff No. 2 was in ejmal possession with the defendants in respect of "Kha" schedule property. The plaintiff No. 2 by a registered deed of conveyance dated March 20, 2016 sold and transferred 233 Decimals out of 445 Decimals in RS Dag No 210 in favour of the Plaintiff No. 1. Upon the death of Abinash Chandra Chakraborty, his right, title and interest to the extent of 8 annas share in the "Kha" schedule property devolved upon his heirs and heiresses being the defendant Nos. 1 to 6. Upon the death of Abinash Chandra Chakraborty, his right, title and interest to the extent of 8 annas share in the "Kha" schedule property devolved upon his heirs and heiresses being the defendant Nos. 1 to 6. The plaintiff No. 1 is in possession of RS Dag No. 210 measuring about 445 Decimals by carrying on pisciculture in the said tank. The defendants threatened to take forcible possession of the tank in question on 16.6.2017 by ousting the plaintiffs from the possession of the suit tank. 3. The said defendants also disclosed that the defendant Nos. 9 to 11 became the owners of the suit tank by way of successive transfers from the defendant Nos. 1 to 6. 4. After presentation of the plaint the plaintiffs filed an application under Order 39 Rule 1 and 2 of the Code praying for temporary injunction and moved the prayer for ad interim injunction. 5. The Trial Court by an order being No. 2 dated September 4, 2017 passed an order directing both the plaintiffs and the defendant Nos. 9 to 11 to maintain status quo in respect of nature, character and possession of the suit property for a limited period. The said ad interim order of injunction was subsequently extended from time to time. 6. The defendant Nos. 9 to 11 contested the application under Order 39 Rule 1 and 2 of the Code by filing a written objection. The said defendants also filed an application under Order 39 Rule 4 of the Code of Civil Procedure praying for vacating and/or variation of the ad interim order of status quo. The case made out by the defendant Nos. 9 to 11 in the application under Order 39 Rule 4 of the Code as well as in the written objection against the injunction application is more or less similar. The defence case of the said defendants runs as follows. 7. The suit property being plot No. 210 is a tank measuring about 8.90 acres out of which 4.45 acres stood vested to the State of West Bengal under the provisions of the West Bengal Estate Acquisition Act, 1953 with effect from 15.5.1955. The State of West Bengal settled 4.45 acres of the vested tank being Dag No. 210 in favour of the defendant Nos. The State of West Bengal settled 4.45 acres of the vested tank being Dag No. 210 in favour of the defendant Nos. 7 and 8 for a period of 30 years and the possession was handed over to the said defendants on February 29, 1989. The remaining half portion of the said tank measuring 4.45 acres was recorded in the name of Abinash Chandra Chakraborty i.e. the predecessor-in-interest of defendant Nos. 1 to 6 in RS Khatian No. 149. After the death of Abinash Chandra Chakraborty, his successors-in-interest being the defendant Nos. 1 to 6 executed various deeds thereby transferring their entire right, title and interest in plot No. 210 measuring about 4.45 acres in favour of the defendant Nos. 7 and 8 and put them in possession. The defendant No. 8 subsequently transferred his acquired interest in Plot no. 210 in favour of the defendant No. 7 and ultimately the defendant No. 7 became the owner of 4.45 acres of the said tank and was in possession thereof. The defendant No. 7 thereafter transferred his right, title and interest in respect of Dag No. 210 measuring about 4.45 acres in favour of the defendant Nos. 9 to 11 by executing a registered deed of conveyance dated May 5, 2005. Thus, by virtue of the said deed of conveyance, the defendant Nos. 9 to 11 became the owners and possessors of the said tank. The defendant Nos. 7 and 8 engaged the defendant Nos. 9 to 11 to carry on pisciculture in the suit tank and as such the defendant Nos. 9 to 11 are in uninterrupted possession of the suit tank since 2005. 8. The plaintiffs contested the application under Order 39 Rule 4 of the Code filed by the defendant Nos. 9 to 11 by filing a written objection denying the allegations contained in the said vacating application. In the said written objection, it has been specifically contended by the plaintiffs that they have preferred an appeal being No. 687/2017 before the West Bengal Land Reforms and Tenancy Tribunal against the order of vesting. 9. Mr. 9 to 11 by filing a written objection denying the allegations contained in the said vacating application. In the said written objection, it has been specifically contended by the plaintiffs that they have preferred an appeal being No. 687/2017 before the West Bengal Land Reforms and Tenancy Tribunal against the order of vesting. 9. Mr. Ghosh, the learned Advocate for the appellants placed reliance upon various documents namely the Record of Rights, Possession Certificate and the deeds by virtue of which the defendants are claiming title to the suit property and submits that from the said documents it will appear that the defendants have right, title and interest in respect of the suit property and they are in possession of the suit tank by carrying on pisciculture. He further submits that the Trial Court erred in law by passing an order of status quo without indicating what the status quo was. He also submits that the plaintiffs do not have any manner of right, title and interest in the suit property as the title of their predecessor in title stood vested to the State and the order of vesting is still subsisting. He further submits that the instant suit is not maintainable as the earlier suit filed on the self same cause of action was dismissed under Order 9 Rule 8 of the Code. 10. Mr. Chatterjee, Learned Advocate appearing for the plaintiffs/respondents submits that the plaintiffs have a share in the suit property and they are in ejmal possession of the same along with the defendants. He further submits that since the order of vesting has been challenged by the plaintiffs, the suit property cannot be said to be vested in part. He also submits that in a suit for partition, an order of status quo is to be passed for preservation of the suit property during the pendency of the suit. 11. Mr. De, Learned Advocate appearing on behalf of the respondent No. 9 however, adopted the argument advanced by Mr. Ghosh. 12. Heard the submissions of the learned Advocates appearing on behalf of the respective parties and have considered the materials available on record. 13. From the Record of Rights produced by the defendants, it appears that the name of Abinash Chandra Chakraborty was recorded as "rayat stithiban" in respect of Dag no. 210 measuring about 4.45 acres. Ghosh. 12. Heard the submissions of the learned Advocates appearing on behalf of the respective parties and have considered the materials available on record. 13. From the Record of Rights produced by the defendants, it appears that the name of Abinash Chandra Chakraborty was recorded as "rayat stithiban" in respect of Dag no. 210 measuring about 4.45 acres. The LR Record of Rights shows that the names of the heirs of Abinash Chandra Chakraborty have been recorded in Plot No. 210/566 which is the suit property. From the Possession Certificate filed by the defendants it is evident that the concerned JLRO Bamon Gola LR Circle handed over physical possession of the vested property being Dag No. 201 which is classified as tank measuring about 4.45 acres on 20.2.1989 in favour of Jayanta Kumar Basu Thakur, who is the defendant No. 7. The said defendant No. 7 acknowledged that he has got possession of the said tank by endorsing his signature on the Possession Certificate. The defendant has also filed receipts showing payment of annual lease rent to the Government. The registered deed of conveyance dated 05.05.2005 has also been produced by the defendants in support of their claim that the defendant No. 7 has transferred his right, title and interest in Plot no. 210 measuring about 4.45 acres in favour of the defendant Nos. 9 to 11. Thus, from the aforesaid documents produced at the instance of the defendants, it is evident that the defendants have right, title and interest are in possession of the suit tank by carrying on pisciculture thereon. 14. It further appears from the materials on record that the plaintiff No. 1 for self and as constituted attorney of the plaintiff no. 2 herein filed a suit previously before the Court of the Civil Judge, (Junior Division), 2nd Court at Malda which was registered as Title Suit No. 139 of 2016 against the defendant Nos. 9 to 11 herein praying for a decree of permanent injunction restraining the defendants of such suit from entering into the suit property and/or from disturbing the peaceful possession of the plaintiff in respect of Dag Nos. 209 and 210. The defendants of the Title Suit No. 139 of 2016 who are defendant Nos. 9 to 11 in the instant suit were contesting the said suit by filing a written statement. 209 and 210. The defendants of the Title Suit No. 139 of 2016 who are defendant Nos. 9 to 11 in the instant suit were contesting the said suit by filing a written statement. The said suit proceeded towards the evidence stage and the PW1 therein was examined and cross-examined in part. On the adjourned date, the plaintiff did not appear, though the learned advocate for the defendant was present and as such the said Title suit was dismissed for default by an order dated December 14, 2017. 15. The defendants/appellants herein alleged that the plaintiffs recorded their names in the LR records of Rights behind the back of the defendants and taking advantage of the said wrong recording of their names in the Record of Rights the plaintiffs were creating disturbances in the peaceful possession as well as in the pisciculture which was carried on by the defendants. As such the defendants preferred an appeal being Appeal Case No. 227 of 2016 before the Additional District Magistrate and District Land and Land Reforms Officer, Malda under the provisions of Section 54 of the West Bengal Land Reforms Act, 1955. The said appeal No. 227 of 2016 was allowed by the Appellate Authority by an order dated January 4, 2017 upon holding that the recordings in the Record of Rights vide proceedings No. 3309/IX/16 and 1983/IX/16 both under Section 50 of the West Bengal Land Reforms Act, 1955 in respect of Dag Nos. 209 and 210 were set aside and the concerned Block Land and Land Reforms Officer was directed to restore the land in Khatian No. 1 as it stood prior to the impugned recording in the Record of Rights. No document is forthcoming from the side of the plaintiffs/respondents herein to show, even prima facie, that they have any manner of right, title, interest and possession in respect of the suit tank. The claim of the plaintiffs regarding challenge to the order of vesting is at the nascent stage and the order of vesting shall remain in force till the same is set aside by a competent authority. 16. Furthermore, since the suit for injunction filed by the plaintiffs herein against the defendant Nos. The claim of the plaintiffs regarding challenge to the order of vesting is at the nascent stage and the order of vesting shall remain in force till the same is set aside by a competent authority. 16. Furthermore, since the suit for injunction filed by the plaintiffs herein against the defendant Nos. 9 to 11 herein being Title Suit No. 139 of 2016 has been dismissed at the evidence stage under the provisions of Order 9 Rule 8 of the Code of Civil Procedure and the plaintiffs have filed the instant suit without taking any steps for restoration of the earlier suit, the plaintiffs herein are not entitled to any equitable relief in the form of temporary injunction in the instant suit. 17. The plaintiffs have failed to show even prima facie that they are the co-sharers of the defendants in respect of the suit property. Thus the plaintiffs have failed to make out a prima facie case to go for trial. From the documents produced by the defendants it is evident that the portion of the vested property measuring about 4.45 acres in Dag No 210 has been settled in favour of the defendant Nos. 7 and 8 and the remaining portion measuring about 4.45 acres which was recorded in the Record of Rights initially in the name of the Abinash Chandra Chakraborty and subsequently in the names of his successors in interest is now owned and possessed by the defendant Nos. 9 to 11. Thus, the plaintiffs have failed to show that they are in possession in respect of the said plot No. 210. Since the defendants are in possession of the suit property and are carrying on pisciculture therein, the balance of convenience and inconvenience is wholly in favour of the defendants/appellants herein and the defendants/appellants herein and not the plaintiffs/respondents will suffer irreparable loss and injury in the event an order of injunction is passed against them. Thus the plaintiffs have miserably failed to satisfy the legal tests for grant of injunction namely prima facie case go for trial, balance of inconvenience and inconvenience and irreparable loss and injury. 18. It is no longer res integra that while deciding an application for injunction the court has to take into consideration the "prima facie case" and not the "prima facie title". 18. It is no longer res integra that while deciding an application for injunction the court has to take into consideration the "prima facie case" and not the "prima facie title". We are also conscious of the settled proposition of law that an entry in the finally published Record of Rights neither creates any title nor does it extinguish the same and it is only a document of possession. An entry in the finally published Record of Right is presumed to be correct unless the same is rebutted by the adverse party. At this stage no document is forthcoming from the plaintiffs side to rebut the presumption attached to an entry in the finally published Record of Rights. (See Karewwa And Ors. vs Hussensab Khansaheb Wajantri And Ors., (2002) 10 SCC 315) 19. The Court below while passing an order of status quo also erred in law by not taking into consideration as to whether the instant suit is maintainable in view of the bar laid down under Order 9 Rule 9 of the Code as the previous suit was dismissed under Order 9 Rule 8 of the Code. 20. The Trial Court was very much swayed by the fact that in a suit for partition a co-sharer having a semblance of share and/or interest in the property shall be entitled to declaration of his share and till such declaration is made, the property should be preserved. The Learned Court below failed to take into consideration the effect of the vesting order and the subsequent settlement of the vested property in favour of the defendant nos. 7 and 8 as well as the recording of the names of the defendants in the Record of Rights. The finding returned by the court below on the point of balance of convenience and inconvenience and irreparable loss and injuries is bereft of any reasons. The mind of the learned court below was swayed by the nature of the suit and that a property should be preserved during the continuation of a lis. 21. The Hon'ble Supreme Court of India in the case of Kishore Kumar Khaitan vs.- Praveen Kumar Singh, (2006) 3 SCC 312 deprecated the practice of passing an unspecified order of status quo. 22. 21. The Hon'ble Supreme Court of India in the case of Kishore Kumar Khaitan vs.- Praveen Kumar Singh, (2006) 3 SCC 312 deprecated the practice of passing an unspecified order of status quo. 22. An order directing the parties to maintain status quo without indicating what the status quo was as on the date of passing such an order is a vague one and the same can be used by an unscrupulous litigant in a manner to suit his purpose. When the plaintiffs have failed to satisfy the ingredients for passing an order of injunction, the Learned Judge of the Court below was not justified in passing an order of status quo as an order of status quo is one form of an order of injunction as the same has the effect of putting a restraint upon a party from utilising his property in the manner he wish to. An unspecified order of status quo also gives rise to multiplicity of proceedings. 23. Thus, the judgment and order being No. 28 dated December 19, 2018 passed by the Civil Judge (Senior Division) 2nd Court at Malda suffers from infirmity and illegality and the same is hereby set aside. The appeal is thus allowed without any order as to costs. 24. Since the main appeal has already been disposed of. The connected application being CAN 1461/2019 has become infructuous and is accordingly disposed of. I agree – Harish Tandon, J.