Golfaham Mondal vs State of West Bengal & Ors.

Joymalya Bagchi, J.—An affidavit of service is filed; let the same be taken on record.

The writ petitioner is before this court alleging that the private respondents are interfering with his right, title and interest over the land in question in respect of which he had obtained a decree from the civil court and such decree had duly been executed through title execution case instituted in the year 2005.

It is contention of the petitioner that after execution of the decree, the private respondents are again trying to encroach upon his land and seeking to interfere with the same. In support of such contention, the learned advocate appearing for the petitioner relies on a reported decision of the apex court in the case of P. R. Murlidharan & Ors. v. Swami Dharmananda Theertha Padar & ors. reported in (2006) 4 S.C.C. 501 and two unreported decisions rendered by this Court - one in W.P. 29232 (W) of 2014 (Sheikh Abdul Hamid v. State of West Bengal & ors.) and the other in M.A.T. 1714 of 2014 (Shib Kumar Sarkar & ors. v. Nitai Kumar Sarkar & ors.).

The learned lawyer for the private respondents no. 7 to 14, however, denies and disputes the fact that his clients are interfering with the legal rights of the petitioners. On the other hand, he submits that his clients filed civil suits being Title Suit No. 34 of 2014 and Title Suit No. 206 of 2014 - both pending before the learned Civil Judge (Junior Division) at Rampurhat, Birbhum - and have obtained orders of injunction therein against the petitioner.

In reply the learned advocate for the petitioner submits that the said suits are wholly unconnected with the property, which is the subject matter in the instant writ petition.

Having considered the submissions made on behalf of the respective parties, I am of the opinion that the remedy of the petitioner, if the land in question is encroached by wrongful acts of the private respondents, lies in protecting such civil right by way of instituting a civil suit before the judicial forum having competent jurisdiction.

It has been strenuously argued on behalf of the petitioner that as the decree declaring the right of the petitioner over the land in question had been duly executed to the satisfaction of the executing court, the petitioner is entitled to invoke the extra ordinary writ jurisdiction of this court. In support of such contention, the learned lawyer for the writ petitioner relies on paragraphs 17 and 19 in P. R. Murlidharan & ors. (supra).

However, in the selfsame report at paragraph 12, the Court, inter alia, held that a party is not entitled to get relief in exercising extra ordinary writ jurisdiction, when the adjudication of the breach of legal right involves examination of oral evidence for interpretation of documents of disputed question of fact.

In the factual matrix of this case, there are rival claims as to whether the petitioner''s rights over the land in question are being interfered with by the private respondents or not. The private respondents have denied and disputed such claim of encroachment of legal right of the writ petitioner and stated that they have filed civil suits against the petitioner. It is also a matter of factual adjudication as to whether the subject matter of the civil suits filed by the private respondents are similar to that in the instant writ petition.

Hence, the adjudication of such claim of encroachment on legal rights of the petitioner in the land in question is not possible by way of exchange of affidavits in exercise of jurisdiction under Article 226 of the Constitution of India.

I am, therefore, of the considered view that the ratio in P. R. Murlidharan & ors. (supra) is of no assistance to the petitioner in the factual matrix of this case.

With regard to the unreported authorities of this Court, I find that the decisions in the said reports was made in the factual matrix of the said cases and no declaration of law of universal application has been made therein.

Hence, I am of the opinion that in view of the aforesaid factual matrix, it is prudent for the parties to have their claims adjudicated before the civil court of competent jurisdiction.

In the event, however, the action of the private respondents constitutes penal offences, it shall be open to the petitioner to institute appropriate criminal proceeding in accordance with law, if so advised.

Needless to mention, lawful orders passed by the judicial authorities, if approached, shall be duly respected and implemented by the police authorities.

With the aforesaid observations, the writ petition is disposed of.

Since no affidavit in opposition has been called for, the allegations made in the writ application are deemed to have been not admitted by the respondents.

There will be no order as to costs.