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2022 DIGILAW 609 (PAT)

Nand Lal Biswas v. Sadanand Biswas

2022-07-18

PARTHA SARTHY

body2022
ORDER I.A. no.13 of 2022 Heard learned Senior counsel for the appellants and learned counsel for the respondents. 2. The instant interlocutory application has been filed on behalf of the appellants under Order XXXIX Rule 1 and 2 read with section 151 of the Code of Civil Procedure praying therein that the respondents be restrained from alienating, transferring or selling the land in question to any other person during pendency of this appeal. 3. The case of the appellants in brief is that they are the bonafide owners of the land in question and are in physical possession over the same. They are paying rent to the Government and rent receipt is being issued to them. 4. It is submitted by learned Senior counsel appearing for the appellants that contrary to the materials on record, the learned trial court has erroneously given a finding to the effect that the plaintiffs-respondents are in possession. A total area of 40 decimals of khata no.15 and plot no.1259 has been acquired by the National Highway Authority for development of N.H. 107. Suppressing the fact of pendency of the instant First Appeal, the respondents want to take forceful possession over the land in question and want to obtain the award of compensation. The attempt by them to take the compensation was objected to by the appellant no.4 in Objection Case no.15 of 2018-19 and the said matter has been transferred under Section 3H(4) of the N.H. Act, 1956 to the Civil Court, Saharsa. It is further submitted that the respondents 1st set encroached upon part of N.H. 107 by making huts and shops in front of the land in question and on removal of the same by the National Highway Authority, they have started filling soil in the land with the intention to let out shops to unauthorised renters. It is further submitted that in a proceeding under Section 144 Cr.P.C. initiated on the recommendation by the police, both the parties were restrained from going over the land but the respondents refused to accept the notice. They are creating hindrance in physical possession of the appellants over the same. Hence, this application. 5. It is submitted by learned counsel appearing for the respondent nos.1, 2, 8, 9, 10, 58, 59, 60 and heirs of respondent no.3 that he has filed a counter-affidavit to the injunction petition of the appellants. They are creating hindrance in physical possession of the appellants over the same. Hence, this application. 5. It is submitted by learned counsel appearing for the respondent nos.1, 2, 8, 9, 10, 58, 59, 60 and heirs of respondent no.3 that he has filed a counter-affidavit to the injunction petition of the appellants. It is submitted that from perusal of the application filed by the appellants, it would transpire that the same is vague, confusing and the averments made therein are not supported by any documents or materials. It is submitted that the plaintiffs filed Title Suit no.3 of 1988 for partition of their 1/4th share and also for setting aside the revisional survey entry illegally made in favour of the defendants 1st party-appellants. The revisional survey entry was set aside by the learned Sub-Judge and the suit was decreed in favour of the plaintiffs. So far as the allegation of alienation and transfer of land and changing of physical feature of the suit land is concerned, the same are baseless, false and no material and document has been brought on record to substantiate the allegations. Neither the detail of the plot or the land has been mentioned in the petition nor the name of the intending purchaser has been given. It is submitted that no transfer or alienation has been made or is being made by any of the aforesaid respondents during pendency of the instant appeal. The plaintiffs and the respective parties are already in possession of their respective lands and final decree proceeding is going on in the learned court below. It is submitted that the appellants have not satisfied any of the three conditions necessary for grant of injunction. Relying on the judgment in the case of Inder Singh @ Inder Prasad Singh and others vs. Ram Briksha Rai and others [ 2009(2) PLJR 661 ] and in the case of Anadi Kumar Das and others vs. Khagindra Kumar Das [ 2007(2) PLJR 383 ], it is submitted by learned counsel for the respondents that there is no merit in the application and the same be dismissed. 6. Heard learned Senior counsel appearing for the appellants and learned counsels appearing for the respondents. 6. Heard learned Senior counsel appearing for the appellants and learned counsels appearing for the respondents. The instant appeal arises from the judgment dated 20.5.1995 passed in Title Suit no.3 of 1988 by the learned Sub-Judge I, Saharsa whereby the plaintiff’s suit for partition, to carve out his 1/4th share in the suit properties, for declaration of his title and confirmation of possession over the suit land and alternatively for recovery of possession over the suit land was decreed in favour of the plaintiffs. The issue no.7 as to whether the defendants have acquired right, title and possession by way of adverse possession was decided in favour of the plaintiffs and against the defendants (appellants herein). It was held that the plaintiffs have got unity of title and possession over the suit land and are entitled to get decree for partition and relief, as claimed. It was ordered that a preliminary decree be drawn up in favour of the plaintiffs to carve out his separate share to the extent of one-fourth and their title over the suit land and possession was also confirmed. 7. Further, from perusal of the contents of the instant application, the Court finds that the prayer made therein is to restrain the respondents (plaintiffs in the court below) from alienating, transferring or selling the land in question to any other person during pendency of the appeal. However, from perusal of the contents of the petition, it transpires that no averment whatsoever has been made in the petition about any fact which led to the appellant’s apprehending that the respondents may alienate, transfer or sell the suit land. In fact, in paragraph no.13 of the counter-affidavit, the respondents have categorically stated to the effect that “actually no any transfer/alienation has been made and/or is being made by any of the aforesaid respondents during pendency of the instant Appeal”. The only averment by the appellants in the petition is to the effect that the appellants, suppressing the fact of pendency of the instant appeal (F.A. no.594 of 1995), are trying to obtain the award of compensation with respect to the suit land acquired by the National Highway Authority. Further, it has been stated in the petition that on the National Highway Authority removing the encroachment made by the respondents, the respondents were once again filling the soil in the land for letting out shops to unauthorised renters. 8. Further, it has been stated in the petition that on the National Highway Authority removing the encroachment made by the respondents, the respondents were once again filling the soil in the land for letting out shops to unauthorised renters. 8. Thus, from the contents of the petition, the Court finds that the appellants have not made out any case for grant of injunction nor have they satisfied anyone of the three conditions required for an order of injunction. 9. The Court finds no merit in the application (I.A no. 13/2022) and the same is dismissed.