Dashrath vs Gajadhar Prasad Gupta and Others

T.P. Sharma, J.—This second appeal u/s 100 of the C.P.C. is directed against the judgment & decree dated 24.08.99 passed by the 7th Additional District Judge, Bilaspur in Civil Appeal No. 16-A/99 affirming the judgment & decree dated 03.04.98 passed by the 4th Civil Judge Class-I, Bilaspur in Civil Suit No. 20-A/95, whereby learned 4th Civil Judge Class-I has decreed the suit for permanent injunction of the suit land measuring about 3.24 acres situated as Village Kalmitar, Tahsil Kota, Distt. Bilaspur.

Judgment & decree are challenged on the ground that without any proof of title of the plaintiff/predecessors of Badri Prasad Gupta namely, respondents No. 1 (a) & (b) herein, the Court below has decreed the suit for permanent injunction and thereby committed illegality.

Brief facts giving rise to filing of this appeal are that original plaintiff Badri Prasad Gupta (since deceased) was owner of the suit land situated at Village Kalmitar, Tahsil Kota, Distt. Bilaspur. Present appellant Dashrath & other defendants were not owners or possessors of the suit land, but without any legality & propriety they applied for mutation of the suit land in their names and the suit land was mutated in the names of original defendants No. 1 to 5 i.e. respondents No. 2 to 6 herein. Originally the suit land was owned by Mahrajin Bai and after the death of Mahrajin Bai, the suit land was succeeded by deceased Badri Prasad Gupta. One civil suit was decided between father of respondents No. 2 to 5 & husband of respondent No. 6 herein namely Ramnarain Gupta in favour of Badri Prasad Gupta. Proceeding u/s 145 of the Cr. P.C. was also decided between both the parties in which possession of Badri Prasad Gupta was found. Respondents No. 2 to 6 herein had not filed any statement and the Court proceeded ex-parte against them. Subsequently, the present appellant was made defendant No. 7 who has filed written statement and contested the suit and alleged that the property was owned by Mathura Prasad, after his death the property was succeeded by his son Ramnarain and after the death of Ramnarain the property was succeeded by respondents No. 2 to 6 herein who are legal representatives of Ramnarain, they have sold the land to the present appellant vide sale deed dated 21.01.88 and handed over the possession, and the present appellant was in peaceful possession, but plaintiff Badri Prasad Gupta has stolen the crop in the year 1987. Proceeding u/s 145 of the Cr. P.C. was also initiated between the parties and the land was attached and given in interim custody of receiver Ram Prasad. The present appellant had also filed counter claim for possession of the suit land. On the basis of averments of the parties, issues were framed and after affording opportunity of hearing to the parties, the trial Court has decreed the suit and dismissed the counter claim. The present appellant has preferred appeal and the same was dismissed by the judgment & decree impugned.

Following substantial question of law was formulated for decision of the present appeal:

Where the plaintiff is not in possession of the suit land on the date of filing of the suit and the suit property being in custodia legis having been attached u/s 145 of the Criminal Procedure Code, whether the suit for perpetual injunction can be decreed?

I have heard learned counsel for the parties and perused the impugned judgment as also the record of the Courts below.

Learned counsel for the appellant argued that admittedly, the property was not in possession of any party, therefore, the suit alone for perpetual injunction is not maintainable under the law and the plaintiff was required to claim relief of possession. Learned counsel further argued that deceased Badri Prasad was not in possession of the disputed property and the property has been purchased by present appellant Dashrath from Mathura Prasad, original owner of the property. Proceeding u/s 145 of the Cr.P.C. was finally dropped in the light of pendency of civil suit. In absence of possession of Badri Prasad Gupta the suit for permanent injunction is not maintainable. Learned counsel placed reliance in the matter of Sri Thimmaiah Vs. Shabira and Others, in which the Apex Court has held that in absence of proof of possession of the plaintiff any decree for grant of permanent injunction is illegal.

On the other hand, learned counsel appearing on behalf of respondents No.1 (a) & (b) vehemently argued that result of previous litigation reveals that Mathua Prasad was not owner of the property, he was not competent to sell the property, present appellant Dashrath was not in possession of the property, the property in question was in possession of Badri Prasad Gupta and the property was attached u/s 146 of the Cr. P.C. from the possession of deceased Badri Prasad, therefore, simpliciter the suit for possession in case of property in custody of Court (custodia legis) is competent. Learned counsel placed reliance in the matter of Shanti Kumar Panda Vs. Shakuntala Devi, in which it has been held by the Apex Court that in case of attachment of the property u/s 146 of the Cr.P.C. unsuccessful party is required to initiate proceedings in a competent Court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent Court consequent upon attachment under S. 146(1) it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the Court it would suffice if only determination of the rights with regard to the entitlement to possession is sought for.

Admittedly, in this case, the property was in possession of the receiver appointed by the Court and possession with the receiver is one of custodia legis. As regards competency of decree of perpetual injunction in case of custodia legis property, as held in the case of Shanti Kumar (supra) only the suit to establish its entitlement to possession over the disputed land is sufficient. Para 23 of the said judgment reads thus,

For the purpose of legal proceedings initiated before a competent Court subsequent to the order of an Executive Magistrate under Ss. 145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarized as under:

(1) The words "competent Court" as used in sub-section(1) of S. 146 of the Code do not necessarily mean a Civil Court only. A competent Court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming the subject-matter of proceedings before the Executive Magistrate :

(2) A party unsuccessful in an order under S. 145(1) would initiate proceedings in a competent Court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under S. 146(1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the Court, it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession.

(3) A decision by a criminal court does not bind the Civil Court while a decision by the Civil Court binds the Criminal Court. An order passed by the Executive Magistrate in proceedings under Ss. 145/146 of the Code is an order by a Criminal Court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the Court, the order of the Magistrate is only one out of the several pieces of evidence.

(4) The Court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by Court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on the power of Court. The Court does have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad interim order the party unsuccessful before the Executive Magistrate may on material placed before the Court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the Court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the Court - final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of S. 145.

No claim of other relief would be necessary.

As regards the question of possession of the plaintiff/deceased Badri Prasad over the suit land, both the parties led evidence. Original civil suit reveals that previous suit was decided between Badri Prasad, Mathura Prasad & Bihari Das where suit for possession in favour of Badri Prasad was decreed in the year 1950. Revenue record also supports the possession of Badri Prasad. During the years 1984-89, name of Mathura Prasad was mentioned in the revenue record which was subsequently corrected by the orders of Revenue Officer. Alleged sale deed in favour of Dashrath, the present appellant, is executed on 21.01.88 by the legal representative of deceased Ramnarain Gupta, S/o deceased Mathura Prasad, who was not owner of the property in the light of aforesaid decision of the civil suit. The original civil suit was filed on 23.08.88 within seven months of the execution of sale deed in favour of present appellant Dashrath.

Gajadhar (PW-1) has deposed in his evidence that Badri Prasad was in possession of the suit property. He has admitted in para 16 of his cross-examination that Khasra No. 1140 was mutated in the name of the present appellant. Both the parties have not filed documents relating to proceeding of Section 145 of the Cr.P.C. Factum of possession of Badri Prasad is supported by Bahori (PW-2). Defendant/present appellant Dashrath has deposed that he has purchased the land vide sale deed dated 21.01.88, previously it was recorded in the name of legal representative of Mathura Prasad in the year 1988 and the land was cultivated by Durgesh. Appellant Dashrath is not resident of village Kalmita and he is resident of village Bhainsajhar.

Durgesh Kumar (PW-4), original seller of the land, has stated in para 11 of his cross-examination that he does not know as to who had cultivated the land in the disputed year. On the other hand, appellant Dashrath has specifically deposed in para 3 of his evidence that Durgesh has cultivated the land in the year of his purchase i.e. 1988, which shows that the defendant and his witnesses are not sure about possession of the suit land in the disputed year. Whereas, Gajadhar, S/o Badri Prasad, has stated that his father was in possession of the land. Gajadhar has also proved the documents of civil suit and revenue record which supports the possession of deceased Badri Prasad on the date of filing of the suit. Evidence of Gajadhar relating to factum of possession & title is based on the documents.

On the basis of documents and ocular evidence, the Court below has arrived at a finding that father of respondents No. 1 (a) & (b) herein was in possession of the suit land on the date of initiation and proceeding u/s 145 of the Cr.P.C. Finding of the Court below is based on ocular and documentary evidence. In case of custodia legis, no relief for possession was necessary for Badri Prasad or his legal representatives and suit for permanent injunction was competent.

For the foregoing reasons, the substantial question of law is decided as positive. On the basis of finding on the substantial question of law formulated for the decision of this appeal, I do not find any force in the second appeal, same is liable to be dismissed and it is hereby dismissed.

The appellant shall bear his cost of appeal as well as suit and also the costs of the respondents.

Advocate fees as per schedule.

Decree be drawn up accordingly.