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2023 DIGILAW 288 (PAT)

Ram Ashray Mahto v. Satya Narayan Roy

2023-03-14

KHATIM REZA

body2023
ORDER Interlocutory Application No. 01 of 2021: This interlocutory application has been filed under Order 41 Rule 5 of the Code of Civil Procedure for staying the further proceeding of Execution Case No. 34 of 2020 pending before the Court of learned Sub Judge, 14th, Patna. A supplementary affidavit has also been filed for clarifying the defect as pointed out by the stamp report dated 25.02.2023 with regard to defect no. 25, 26 & 27. 2. Learned counsel for the appellants fairly submits that during the pendency of the instant appeal, delivery of possession was taken by respondents through process of the Court. The Learned Counsel for the appellants further submits that after taking possession, existing building was demolished although part of the said building still exist which has been mentioned in the supplementary affidavit. In the aforesaid facts and circumstances, the Execution Case no. 34 of 2020 has been concluded by giving possession to the decree holder. The said interlocutory application is deemed to be infructuous. Interlocutory Application No. 02 of 2022: 3. This interlocutory application has been filed on 26.02.2022 under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure for seeking an order of status quo by way of ad-interim injunction for restraining the respondents from either alienating, encumbering or changing the physical feature of suit property during the pendency of the present appeal. 4. The suit was filed by the appellants for declaration of title and for declaration that defendant no. 6 did not acquire any title and possession of the suit land on the basis of sale deed dated 16.09.1983 which was brought into existence during the pendency of Title Suit no. 280 of 1983 and the same is illegal, null and void, inoperative, unauthorized and without consideration and also for temporary injunction. 5. The case of the plaintiffs/appellants is that 1.39 acres of land bearing plot no. 54 khata no. 507 in Mauza Dhakanpura at present P.S. Krishnapuri, Patna, stands recorded in the name of Ajit Mahto son of Lekhraj Mahto and Harihar Mahto and Laxman Mahto and Vishnu Mahto son of Gopi Mahto. It is contended that Kumari Ben Lata Dey acquired the entire area of plot no. 54 from Khatiyani Raiyat and she had been coming in possession. 507 in Mauza Dhakanpura at present P.S. Krishnapuri, Patna, stands recorded in the name of Ajit Mahto son of Lekhraj Mahto and Harihar Mahto and Laxman Mahto and Vishnu Mahto son of Gopi Mahto. It is contended that Kumari Ben Lata Dey acquired the entire area of plot no. 54 from Khatiyani Raiyat and she had been coming in possession. It is further stated that she started the girl’s school in the said plot after constructing a building in southern portion of plot no. 54 which came to be known as ‘Subhash Kanan’. Further case of the plaintiffs is that plaintiffs are privileged tenants and belong to backward community and Kailash Mahto served Ben Lata Dey and his wife helped her in her household work. It is stated that Ben Lata Dey was pleased with the service of Kailash Mahto and his wife and she treated Kailash Mahto as her son and she gave portion of plot no. 54 measuring 82 feet in length from east to west and 30 feet breadth from north to south fully described in schedule 1 at the foot of the plaint permanently, for construction of house and she got Kailash Mahto settled in that land. It is further case of the plaintiffs that Kailash Mahto constructed brick built house in the suit land from his own fund and started living therein with members of his family since 1959. It is pleaded that Kumari Ben Lata Dey died unmarried and her property devolved upon her nephew Ashish Kumar Dey and he also died leaving behind his widow Vani Dey and his son Devanshish Dey, who succeeded to the property of Ashish Kumar Dey. It is stated that from this facts, it is quite clear that plaintiffs have got title and possession over the suit land and house and plaintiffs have been coming in possession of the house and land continuously since 1958 uninterruptedly without any objection by anybody peacefully and in their own right and to the knowledge of exclusion of Ben Lata Dey and her heirs. Hence, by adverse possession also, the plaintiffs have acquired title and possession on the suit land and house. It is submitted that defendant no. 6 purchased land including suit land during the pendency of Title Suit no. Hence, by adverse possession also, the plaintiffs have acquired title and possession on the suit land and house. It is submitted that defendant no. 6 purchased land including suit land during the pendency of Title Suit no. 280 of 1983 in the court of learned Sub Judge 1st, Patna, Kailash Mahto vs. Vani Dey and others and defendant no. 3 to 6 had full knowledge and during the pendency of Title Suit no.280 of 1983. Defendant no. 6 knowingly purchased litigation and the sale deed dated 16.09.1983 in respect of the suit land is illegal, null and void. 6. On the other hand, defendant nos. 3 to 6 appeared and filed their written statement with counter claim and denied the claim of plaintiffs and asserted their claim over the suit land. The defendant has stated that plaintiff Kailash Mahto was servant of defendant no. 1 Bani Dey and he was accommodated in servant’s quarter over suit land as licencee in 1978-79. It is stated that since Ms. Bani Dey sold the land to the defendant no. 6, Sharda Devi, the plaintiffs have filed the present suit with wrong and false allegation. The defendant No. 3 is husband of defendant no. 6. Defendant no. 4 & 5 are brothers of defendant no. 3. The defendant nos. 3 to 5 have no concern with the suit land and they are not necessary party. The further case of the plaintiff-respondent is that the defendant no. 6 Sharda Devi purchased suit land measuring 2971 square feet i.e. 2 katha, 3 dhur 14 dhurki of plot no. 54 and 60 with structures through sale deed dated 16.09.1983. It is stated that after purchase the defendant no. 6 came in possession since Kailash Mahto was living in part of the structure. He was allowed to continue residing there on humanitarian ground and he continued in possession as before as licencee. It is stated that now out of greed, he has made a false claim of oral gift by Ben Lata Dey. 7. Mr. J. S. Arora, learned senior counsel appearing on behalf of the appellants contended that the suit premises is dwelling house. It is stated that now out of greed, he has made a false claim of oral gift by Ben Lata Dey. 7. Mr. J. S. Arora, learned senior counsel appearing on behalf of the appellants contended that the suit premises is dwelling house. Taking advantage of the order of delivery of possession issued by the Executing Court, the said dwelling house was demolished by the respondent immediately after delivering of possession which was the sole residential house of the appellants and their family members and it is further alleged that now defendants intend to sale/alienate and changing the physical feature of the suit land by making construction over the suit land. It is submitted by the learned counsel for the appellants that appeal has already been admitted by order dated 02.02.2022 and the Second Appeal is pending for final adjudication of the case. It is also submitted that defendants are trying to construct building on the land in suit and if respondent 1st set is permitted to make construction over the said land, it will cause a serious prejudice to the appellants. In such circumstance, in the interest of justice, to protect and preserve the property in suit by an order of injunction with a direction to maintain status quo is required to be passed in this regard to the suit property during the pendency of the present appeal. 8. Mr. J. S. Arora, learned Senior counsel for the appellant has placed reliance upon the decision of Hon’ble Apex Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass reported in AIR 2005 SC 104 in support of his case, it is submitted that the Hon’ble Apex Court has held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed, which also includes alienation or transfer of the property, which may lead to loss or damage being caused to the party, who may ultimately succeed and may further lead to multiplicity of proceedings. He further relied upon other decisions of the Hon’ble Apex Court in the cases of Dev Prakash and Another vs. Indra and Others reported in (2018) 14 Supreme Court Cases 292 and N. Srinivasa vs. Kuttukaran Machine Tools Ltd. reported in (2009) 5 SCC 182 , in which Paragraph No. 30 in the case of N. Srinivasa vs. Kuttukaran Machine Tools Ltd. reads as follows: – “30. From a bare perusal of the findings of the High Court reversing the order of the trial court and rejecting the application for injunction, it would be evident that the appellant had failed to make out a prima facie case for grant of an order of injunction in his favour. But in view of our discussions made hereinabove, we are of the view that the Additional City Civil Judge, Bangalore was fully justified in directing the parties to maintain status quo as to the nature and character of the property in dispute till the award is passed by the sole arbitrator as we have already held that if the order of status quo is not granted and the respondent is permitted to sell the property in dispute to a third party, complications will arise and the third party interest will be created, for which the award if any, passed in favour of the appellant ultimately, would become nugatory.” 9. Learned Senior counsel further placed reliance on the decision of Patna High Court’s decision in the case of Kishori Devi and others vs. Rameshwar Prasad reported in AIR 2017 Patna 187, in which Hon’ble Single Bench has held that there is no escape from the conclusion that a counter-claim filed in a suit has to be tried as a cross suit with all legal implications and consequences and the order passed in such a counter-claim has to be appealed separately in accordance with law and procedure. 10. Mr. Jitendra Kishore Verma, learned counsel appearing on behalf of the respondent no. 2-decree holder has contended that so far the allegation in paragraph 6 of injunction petition (I.A. No. 02 of 2022) regarding the appellant having their sole residential house in the property of 1 katha 12 dhur is concerned, the same is false statement in as much as trying to obtain injunction order on the basis of misleading facts. 2-decree holder has contended that so far the allegation in paragraph 6 of injunction petition (I.A. No. 02 of 2022) regarding the appellant having their sole residential house in the property of 1 katha 12 dhur is concerned, the same is false statement in as much as trying to obtain injunction order on the basis of misleading facts. The fact is that the appellants have two other residential properties, one situated in the West Rajapur Mohalla, Indira Gandhi Nagar, Patna bearing house no. 98 purchased through sale deed dated 09.04.1979 standing in the name of wife of Kailash Mahto (original plaintiff) marked as Exhibit B/1 and other being the property purchased through the registered sale deed dated 04.09.1990 (Exhibit B/2) in favour of Sabya Devi W/o Mithlesh Mahto which is one of the appellants herein. It is further contended that there is also a residential house constructed on that property near Shivpuri area in Patna, as such there is no occasion of irreparable injury on account of alleged deprivation from sole residential house as alleged. 11. Learned counsel for the respondent No. 4 submits that the allegation of demolition of the suit premises is vague and mis-conceived. For grant of equitable relief of injunction the appellants must come to Court with clean hands and in the present case the appellants have made false submission to obtain injunction. Moreover, their case is based on adverse possession and there is no equity in their favour. Learned counsel for respondents reliance on the decision of Hon’ble Apex Court in the case of Seema Arshad Zaheer vs. Municipal Corpn. of Greater Mumbai reported in (2006) 5 Supreme Court Cases 282, in support of his contention. The Hon’ble Apex Court in paragraph 30, has held that: – “30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.” 12. Learned counsel for the respondent No. 4 further submits that if she makes construction over her decretal property, wherein the only claim left of the appellants is to the effect of adverse possession, then no equity lies in favour of the appellants to get an injunction order because a person claiming adverse possession has no equity in his favour. 13. On this point, learned counsel for the respondents also relied upon the same decisions of the Hon’ble Supreme Court that are reported in AIR 2005 SC 104 , (2009) 5 SCC 182 and (2018) 14 SCC 292 , it is contended by learned counsel for respondents that after analyzing the aforesaid decision of the Hon’ble Supreme Court it is apparent that status quo order is not a universal application irrespective of the stage and facts of the case and diverse of the nature of the claim advanced by the parties seeking injunction and his conduct. It is submitted that in every case injunction will be granted as a matter of course, which can not be ratio of such decisions. 14. Learned counsel for the respondents submits that the aforesaid cases relied during trial Court stage where right of the parties were yet to be adjudicated but in present case, trial Court as well as appellate court has decided the rights of the parties and consideration of injunction matter is in second appeal stage and it is further submitted that respondent No. 4 is already in possession of the property through execution of the decree by the competent Court. 15. Learned counsel for the respondent contended that no prima facie case in favour of the appellants has been shown in their petition of injunction. The appellants’ claim for injunction on the ground of adverse possession is mainly on their non-title declared in the appeal. 15. Learned counsel for the respondent contended that no prima facie case in favour of the appellants has been shown in their petition of injunction. The appellants’ claim for injunction on the ground of adverse possession is mainly on their non-title declared in the appeal. The balance of convenience also does not lie in favour of the appellants while respondent No. 4 is in possession of the suit property by virtue of the decree of the competent Court through the execution of the decree and she had registered sale deed in her favour from the legatee of the Probated Will of admitted owner, therefore, she cannot be injuncted to enjoy the fruits of the decree. 16. Learned counsel of respondents has placed reliance on another decision reported in (1987) Supp. SCC 161, 2007 (3) PLJR 331 . 17. The Hon’ble Patna High Court has held that it is well settled law that so far grant of temporary injunction is concerned, the plaintiff must prove that:- (i) He/she has a prima facie case; (ii) The balance of convenience lies in his/her favour and (iii) He/she would suffer if the injunction is not granted and if any of these ingredients is lacking, the injunction cannot be granted. 18. It is admitted fact that respondent No. 4 is in possession of the suit land. In the aforesaid fact, there is no question of balance of convenience in favour of the appellants. It is also submitted that the case of the irreparable injury is neither made out nor exists, specially in the fact of the case as the appellants are not in possession and construction cannot cause any irreparable injury. Moreover, the plea in view of grant of injunction on the basis of privileged person, oral gift as well as adverse possession is not maintainable in the eye of law. The claim of privilege person by the appellants is not sustainable as there is no documents or material before the court to substantiate their claim. Declaration of privileged persons lies before the Circle Officer, who is the collector under the Bihar Privileged Persons Homestead Tenancy Act, 1947. The appellants never got nor produce any document or order, cannot get injunction till such plea. Plea with regard to oral gift is not sustainable as such gift is not permissible in Hindu Law. Declaration of privileged persons lies before the Circle Officer, who is the collector under the Bihar Privileged Persons Homestead Tenancy Act, 1947. The appellants never got nor produce any document or order, cannot get injunction till such plea. Plea with regard to oral gift is not sustainable as such gift is not permissible in Hindu Law. Learned counsel for the respondent further relied upon decision report 2022 (3) BLJ 136. 19. Learned counsel for the respondent further submitted that none of the three ingredients is in favor of appellants as they have not proved prima facie case nor irreparable loss especially when respondent No. 4 has already given her undertaking that she is not going to sell suit property and the plea of adverse possession was not proved at all by the plaintiffs themselves in their deposition as well as said plea was negated, hence, the prayer for injunction is fit to be rejected. 20. After considering the submissions made on behalf of the parties, it is manifest that the claim of the appellants is only on the basis of adverse possession as well as oral gift. The appellants have not come to this Court with clean hands and making a false statement about having their sole residential house in the suit property is in teeth of citation (2006) 5 SCC 282 . 21. The respondent categorically rebutted his claim and mentioned the other three houses in her reply of injunction petition, which was not denied by the appellants. It is also admitted by the appellants that they have been already dispossessed from the suit property and they have failed to establish their title before the learned appellate Court, hence, the prima facie case and balance of convenience also does not lie in favour of the appellants. 22. There is nothing on record to show that the case of the irreparable injury is made out in favour of the appellants, therefore, prayer for grant of injunction to the appellants to prove that they have a prima facie case, the balance of convenience lies in their favour and they would suffer irreparable loss if the injunction is not granted and if any of these ingredients is lacking the injunction cannot be granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the appellants’ conduct is free from blame and he approaches the Court with clean hands. 23. In view of the aforesaid discussion, there is no merit in this interlocutory application for grant of ad-interim injunction and the same is rejected. 24. Interlocutory Application No. 02 of 2022 stands rejected.