Gautam Mohanti vs Alok Kumar Chatterjee And Ors

A list of documents has been filed by the learned Senior counsel for the appellant, which is taken on record.

The plaintiff is the appellant before this Court.

Plaintiff, Gautam Mohanti has assailed the impugned order dated 03.08.2018 in Original Suit No. 154 of 2018 whereby the application filed on

17.03.2018 under order XXXIX Rule 1 and 2 r/w Section 151 CPC has been rejected by learned Civil Judge (Senior Division)-IInd, Dhanbad on the

ground that the plaintiff has failed to establish prima facie case, balance of convenience and irrecoverable loss.

The learned Trial Court while dismissing the application for injunction has considered that the suit is filed by the plaintiff against the recorded tenants

of his vendor Dhirendra Nath Chatterjee and the defendant no.3 is claiming his land on the basis of Right, Title, Interest and Possession. Both the

parties are claiming their possession over the land, the dispute in the suit is with regard to adjudication of the sale deed in favour of the plaintiff as valid

and correct.

Since the prima facie case is not in favour of the plaintiff as both parties are claiming possession over the same, as such, the balance of convenience

does not lies in favour of the plaintiff.

Learned Senior counsel, Mr. R. N. Sahay assisted by Mr. Yashvardhan on behalf of the appellant has assailed the impugned order on ground that

plaintiff has purchased the scheduled land of Mouza Kandra, Mouza No.324 Revenue Thana-Topchanchi Anchal Office Baghmara, P.S. Mohuda,

Pargana- Nawagarh, Gram Panchyat-Kandra, District- Dhanbad, under Khata No.42, Plot No.02, 03, 04, 05, 06 Gora 3 total Area 1.43 Acre through

Gopi Nath Chatterjee, S/o Dhirendra Nath Chatterjee vide sale deed no. 9096 dated 29.07.2008 after payment of consideration amount before the sub-

registrar office, Dhanbad.

Learned Senior counsel for the appellant has submitted recorded raiyat Sashi Bouri, Chamtu Bouri, Mohan Bouri all sons of late Doman Bouri and

Baroda Bouri w/o Mitan Bouri of village- Jamadiha, Pargana -Nawagarh, P.S.-Baghmara have filed a title suit no.196 of 1964 before the Court of

Munsif II, Dhanbad against Dhirendra Nath Chatterjee, S/o Baidya Nath Chatterjee for khas possession and declaration of title. The said suit was

decreed vide dated 27.07.1964 in terms of compromise under order XX rule 6 & 7 of the CPC, as such, plaintiff got valid title over the land.

The defendant no.3 Hira Bauri has appeared and filed written statement and without admitting any fact put the plaintiff to strict proof thereof and

claimed Right, Title, Interest and Possession over the suit land by the defendants and also denied the genealogical explanation made in the plaint. The

defendant no.3 Hira Bauri is person belongs to scheduled caste and asserts that lands comes under CNT Act, whereas the defendant no.1 & 2 and

plaintiff are person belonging to general caste as such, transfer of the suit property by way of registered sale deed in terms of compromise is a

collusive instrument, which has no legal effect and not binding upon the defendant no.3.

Be that as it may, since the claim of the plaintiff is on the basis of a sale deed, which is not admitted by the defendants, as such, this Court fails to

appreciate that plaintiff is able to show his prima facie case. Once the plaintiff has failed to show prima facie case, there is no balance of convenience

in favour of the plaintiff as the relief sought for in the suit are:

(a) A decree be passed for declaration of permanent occupancy Right, Title, Interest and Possession with confirmation of the plaintiff over the suit

land in the alternative if it is found that the plaintiff has been dispossessed from the suit land during the pendecny of the suit a decree for recovery of

possession be passed against the defendants and in favour of the plaintiff.

(b) A decree be passed declaring the entry in Revisional record of right in schedule of land the name of Dhirendra Nath Chatterjee is correct.

(c) A decree to declare that the plaintiffs purchased deed is genuine and correct and legal heir and successor of Dhirendra Nath Chatterjee namely

Gopi Nath Chatterjee sold the schedule land in the name of plaintiffs may confirm the right, title, interest and possession of the plaintiff, over the

schedule land.

(d) A decree for permanent injunction against the defendant restraining their Man, Agent, from interfering with the peaceful possession of the plaintiff

in respect of the suit land.

(e) A decree for the cost of suit.

(f) A decree for any further relief or reliefs to which the plaintiffs may be found entitle there to under the law.

From perusal of the plaint, which has been brought on record as annexure-1 and the relief sought for it appears that still the plaintiff has to establish his

case before the learned Trial Court.

Under the aforesaid circumstances, the learned Trial Court has rightly rejected the application filed under order XXXIX Rule 1 and 2 r/w Section 151

CPC dated 17.03.2018 filed by the plaintiff as the entire issue including the title, possession and interest of the plaintiff is sub-judice before the learned

Trial Court.

Accordingly, this Court finds that impugned order does not require any interference by this Court, accordingly the same is hereby rejected.

I.A. No. 10129 of 2018 for stay is hereby closed.