Harisadhan Biswas vs Sk. Noor Ali & Ors

Shampa Sarkar, J

This is an application challenging the order dated December 5, 2019 passed by the learned Additional District Judge, 4th Court at Howrah in Title Appeal No.31 of 2014.

The plaintiff is the petitioner before this Court, who has obtained a decree in his favour. The learned Trial Court inter alia, held that the defendants did not have any manner of right, title, interest and possession over the suit property and the plaintiff was the absolute owner of the suit property by way of adverse possession. The plaintiff also got a decree of permanent injunction restraining the defendants and their men and agents from interfering with peaceful possession and enjoyment of the suit property and from committing any acts of waste, damage or change to the nature and character of the same. The plaintiff also got a decree for recovery of possession subject to payment of proper court fees.

Aggrieved, opposite parties preferred Title Appeal No.31 of 2014. The said appeal is pending before the learned Additional District Judge, 4th Court at Howrah. During the pendency of the appeal, the petitioner/plaintiff filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure for an order of injunction restraining the opposite parties from raising any further construction on the suit property. The specific contention of the petitioner in the said application was that the defendants/opposite parties had installed a shallow tubewell in the property and was attempting to raise further construction in violation of the judgment and decree. It was also recorded that the appellants/opposite parties had not filed any application before the learned appeal Court below for stay of execution of the judgment and decree passed by the learned Trial Court or for stay of the operation of the judgment and decree. In the objection filed to the application for injunction, the defendants/appellants/opposite parties have stated that they had not made any construction, neither had they changed the nature and character of the suit property and the shallow tubewell was constructed prior to the application for injunction was filed much to the knowledge of all concerned and the said shallow tubewell was being used by the defendants/opposite parties. That the plaintiff/petitioner was aware of the sinking of the shallow tubewell and as such the application for temporary injunction had become infructuous and the construction of the shallow tubewell was fait accompli over the suit property.

Mr. Mukerjee, the learned advocate for the petitioner submits that if during the pendency of the title appeal the nature and character of the suit property is changed and substantial construction is raised, then the petitioner will suffer irreparable loss and injury and will also have to approach the Court once again for demolition of the structure by initiating another proceeding in case the appeal fails. He further submits that once a decree has been passed in the plaintiff's favour, the balance of convenience and/or inconvenience and prima facie case are all in favour of the plaintiff. He further submits that the fact that the decree has been passed in the plaintiff's favour proved that he had a triable case.

Mr. Gupta learned advocate for the opposite party submits that the petitioner has failed to prove the prima facie case, balance of convenience and/or inconvenience and irreparable loss and injury before the learned Court of appeal below and as such unless the three tests were satisfied, he could not be favoured with an order of injunction. Mr. Gupta further submits that the proper course of action for the plaintiff would be to put the decree into execution. He further submits that the appeal had been preferred by the defendants and the plaintiff could not obtain an order of injunction. Mr. Gupta further submits that the scope of revision under Article 227 of the Constitution of India was much narrower than the scope of an appeal and this Court should not interfere with the order impugned. Mr. Gupta relies on a decision of the Hon'ble Apex Court in the matter of Best Sellers Retail (India) Private Limited versus Aditya Birla Nuvo Limited and Others reported in (2012) 6 Supreme Court Cases 792 and submits that satisfaction of a prima facie case could not itself be sufficient ground for grant of injunction. The Court has to satisfy itself that non-interference by the Court would result in irreparable injury to the party seeking relief and there was no other remedy available to the parties except to grant an injunction as the party needs protection from the consequences of apprehended injury or dispossession. Mr. Gupta further relies on a decision of the Hon'ble Apex Court in the matter of Meena Chaudhary versus Commissioner of Delhi Police and Others reported in (2015) 2 Supreme Court Cases 156 and submits that injunction cannot be such that it would render the main appeal as redundant.

I have heard the contentions of the respective parties. The petitioner had filed the suit for declaration that the deed of sale by virtue of which the defendants were claiming ownership and title to the property in question was void. The petitioner further prayed for declaration of his right, title and ownership over the said property by virtue of adverse possession. It has been specifically pleaded in the plaint that the defendants were trying to fill up the property with garbage and fly ash and construct thereupon thereby denying the right, title and interest of the petitioner. The suit being Title Suit No.270 of 2017 was decreed by the learned Civil Judge (Junior Division), 4th Court at Howrah by judgment and decree dated January 30, 2014. The defendants/opposite parties preferred Title Appeal No.31 of 2014. The said appeal is pending before the learned Additional District Judge, 4th Court at Howrah. It appears that there was an order of this Court dated April 30, 2018 by which a Co-Ordinate Bench of this Court had directed the learned Additional District Judge, 4th Court at Howrah to dispose of the Title Appeal No.31 of 2014 within August 31, 2018. Admittedly the said appeal was not disposed of by the said Court.

The plaintiff/petitioner filed an application on November 14, 2019 before the learned lower appellate Court praying for an order of injunction restraining the appellants/opposite parties from raising any construction on the said suit property and to prevent further waste, damage and injury to the suit property in view of the fact that the opposite parties had already sunk a shallow tubewell on the suit property and were stocking building material. The said application was rejected by the order impugned. The grounds for rejection, inter alia, were that as the digging of earth of the suit property and installation of the shallow tubewell was over, such action had become fait accompli and as such no further interim protection was necessary specially because the petitioners did not produce any evidence before the Court to show that further construction was being carried on by the opposite parties on the suit property. It has also been recorded by the Court that the Court was not the proper authority to restrain any person from converting the land. The Court further noted that as a decree for permanent injunction was prevailing subsequent prayer of temporary injunction over the self-same property was not maintainable or tenable.

The first contention of Mr. Gupta that in the appeal preferred by the opposite party, the petitioner was not entitled to an order of injunction is not acceptable, inasmuch as, order XXXIX, Rules 1 and 2 of the Code of Civil Procedure states that when a suit property is in the danger of being wasted or damaged or there is a threat of dispossession, any party to the suit can pray for an injunction.

It is further seen that a proceeding under the West Bengal Land Reforms Act, 1955 is pending before the Block Land and Land Reforms Officer for correction of record of rights initiated by the petitioner.

Next, I find that when admittedly after the decree has been passed, the defendants/opposite parties have sunk the shallow tubewell and have admitted user of the same, the apprehension of the plaintiff of further injury to the said suit property over which he has obtained a decree of title by way of adverse possession cannot be ruled out. The balance of convenience and/or inconvenience is in favour of the plaintiff. Prima facie case is no longer required to be determined in view of the fact that, the plaintiff is enjoying a decree already.

Next, coming to the question of irreparable loss and injury, admittedly the defendant/opposite parties are in possession. It is found that the suit property, over which a decree has been passed in favour of a party, there has been violation of such decree and a well has been constructed. If further construction is carried on during the pendency of the appeal the party who has been favoured with decree can pray for interim protection of the property. Further construction over the property will change the nature and character and the plaintiff will be compelled to file fresh proceedings for demolition of structures and third party rights may also be created.

The plaintiff has been able to show that there is a likelihood of injury to the property in respect of which he has been granted a decree. Next, with regard to the grounds for rejection of the application, I find that the same are misconceived. The learned lower appellate Court was wrong in holding that once a decree of permanent injunction over the suit property was prevailing a further interim injunction over the self- same property was not tenable in law. It is also incorrect to hold that just as the construction of the shallow tubewell was already over, further protection by way of injunction was not required.

Most importantly, I find that despite a direction of this Court to complete the proceeding in Title Appeal No.31 of 2014 within August 31, 2018, the learned Court below has failed to conclude the appeal within the aforesaid period. It also appears from the written objection filed by the opposite parties that the opposite party admitted that although digging of earth and installation of the shallow tubewell was completed during the pendency of the application for injunction in Title Appeal No.31 of 2014, no further construction was being carried on.

Thus, in my opinion, justice would be sub served if the learned appellate Court below is directed to mandatorily dispose of the Title Appeal No.31 of 2014 within a period of three months without being influenced by any observation made herein. Until the disposal of Title Appeal No.31 of 2014 both the parties are directed to maintain status quo with regard to the nature, character and possession of the suit property. The order impugned is set aside.

The judgment cited by Mr. Gupta does not come to the aid of the opposite parties in the facts of this case.

This revisional application is, thus, disposed of.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.