Nirapada Barik vs Pralay Kumar Biswas and Others

Indrajit Chatterjee, J.—1. There is already an order that the C.O. No. 1256 of 2013, C.O. No. 1802 of 2013 and C.O. No. 1256 of 2013 have been clubbed together and as such, I am to pass a common order. It may be mentioned that all these orders came before this Court from the Title Suit No. 289 of 2010, which is now pending before the Civil Judge (Junior Division), 2nd Court at Berhampore, within the District of Murshidabad. Let me state here the history of all these three civil orders.

C.O. No. 1256 of 2013 was filed by Nirapada Barik (hereinafter called the plaintiff/petitioner) as against Pralay Kumar Biswas (hereinafter called as the defendant/opposite party). The suit was for declaration of title, permanent injunction and also for mandatory injunction. The injunction petition was heard in presence of both sides and the learned Trial Court was pleased to pass an order of status quo in favour of the plaintiff in respect of "Ga" and "Gha" schedule property and the defendant was virtually debarred from any such construction over the "Ga" and "Gha" schedule property.

The defendant filed one Misc. Appeal before the District Judge, Murshidabad which was transferred to the Court of learned 5th Additional District Judge of Berhampore and Misc. Appeal No. 7 of 2012 was registered in the court of the District Judge and the said appeal was disposed of as per order dated 15th March, 2013 by the said Additional District Judge on contest and the said court lifted the injunction in respect of the "Ga" schedule property maintaining the order of injunction in respect of the "Gha" schedule property. Thus, the defendant was restrained from raising any construction over the "Gha" schedule property. Against that order both the parties have approached this Court and the defendant''s application was treated as C.O. 1802 of 2013 as regards "Gha" schedule property. The plaintiff also filed another application under Article 227 of the Constitution giving rise to C.O. 1256 of 2013 as no restraint order was passed by the learned Additional District Judge in respect of "Ga" schedule property.

The application filed by the plaintiff under Order 6 Rule XVII of the C.P.C. praying for amendment of the plaint was rejected by the learned Trial Court and as against the said order dated 21st May, 2013, C.O. 2397 of 2013 was registered.

The fact which may be relevant for appreciation all these three civil orders can be stated in brief thus:

That the plaintiff has claimed in the plaint that he purchased the "Ka" schedule property in 1978. And the defendant is the owner of "kha" schedule property. There is one sketch map appended with the plaint which shows that in respect of "Ga" schedule property he has been dispossessed by the defendant and in respect of "Gha" schedule property there is an apprehension of being dispossessed by the defendant and as such a prayer for temporary injunction was made in respect of "Gha" schedule property and a prayer for mandatory injunction was made in respect of "Ga" schedule property.

The plaintiff further claimed that defendant has encroached both the "Ga" and "Gha" schedule property and has raised construction over the "Ga" schedule property for which the plaintiff filed a petition for mandatory injunction to demolish the said structure and that was heard but answered in the negative. Prayer for mandatory injunction was refused in respect of "Ga" schedule property. It was further claimed in the plaint that in respect of the "Gha" schedule property, the defendant No. 1 was trying to raise construction over that portion of the property. The Trial Court directed maintenance of status quo in respect of both "Ga" and "Gha" schedule property. Defendant, thereafter, filed one Misc. Appeal No. 7 of 2012 as against that order of status quo and in that Misc. Appeal No. 7 of 2012, the court ordered that there will be an order of injunction as against the defendant from raising any further construction over the "Gha" schedule property. The prayer for mandatory injunction was, however, refused.

Before the temporary injunction petition was disposed of by the learned trial court the plaintiff approached the trial court by filing one application under Order 6 Rule XVII of the C.P.C. to insert in the plaint two paragraphs claiming that he purchased a strip of land over the suit plot on 05-10-2010. It may be noted that the suit was filed only on 4th October, 2010 and as such, the claim of the plaintiff was regarding post suit purchase. It was further prayed in that application that the name of Nassiruddin, who is said to be the vendor of the present plaintiff be deleted and in his place the name of Nazrul be substituted. It was further claimed in that application that apart from the first purchase in 1978 the plaintiff purchased 1.50 satak of land on the eastern side of the "Ka" schedule property from Anjuara Begum and Sabnam Tuhina and vide that application for amendment the plaintiff also prayed for change in the schedule of the property.

In respect of ''Gha'' schedule property, the defendant being aggrieved as against the order passed in Misc. Appeal No. 7 of 2012 as passed on 15th March, 2013 this C.O. No. 1802 of 2013 has been filed.

The plaintiff has filed C.O. No. 1256 of 2013 challenging the same order as referred to above in which his prayer for injunction over the ''Ga'' schedule property was answered in the negative.

It is the claim of the plaintiff in C.O. No. 1256 of 2013 that ''Ka'' schedule property belongs to him and the ''Gha'' schedule property is part of ''Ka'' schedule property. It is also his claim that ''Ga'' is also a part of ''Ka'' schedule property and as such, the construction made therein must be removed by a mandatory injunction. In paragraph Nos. 1 and 2 of that Civil Order, the plaintiff of that case has claimed how the property was acquired by him. He has further claimed that the order of the Appellate Court dated 15th March, 2013 be set aside and the order of the learned Trial Court as regards of status quo in respect of "Ga" and "Gha" schedule property be confirmed.

The case of opposite party, defendant is that ''Ga'' and ''Gha'' schedule property is his property since his purchase in the year 1978 and thereafter one wall was built demarcating the ''Ka'' and ''Gha'' schedule property and actually, the said property is very much in his possession along with "Kha" schedule property and he has constructed an one storied house and is eager to construct the first floor over the "Ga" schedule property and he has already constructed the foundation of a construction over the "Gha" schedule property. It is the specific claim of the opposite party defendant that he is in possession over the "Kha", "Ga" and "Gha" schedule property.

Learned Advocate appearing on behalf of the petitioner submitted that if the case of the plaintiff is considered then this Court may come to the conclusion that the present opposite party, defendant, never purchased that ''Ga'' and ''Gha'' schedule property. It is also his claim that he was in possession of ''Ga'' schedule property from which he has been dispossessed and that the opposite party has already constructed one storied building over the same property and the said opposite party is trying encroach the ''Gha'' schedule property.

It is submitted by the learned Advocate of the plaintiff, by taking me to the prayer portion of the claim, that in the Title Suit No. 290 of 2010, he has prayed for mandatory injunction only in respect of ''Ga'' schedule property and for permanent injunction in respect of ''Gha'' schedule property.

On behalf of the opposite party/defendant, it was submitted, by taking me to the prayer portion of the plaint, report of the Inspection-Commissioner (annexure 4 at pages 31 to 34) to convince this Court that actually there was one wall demarcating the ''Ka'' and ''Kha'' schedule property. He further submitted that the prayer for injunction in respect of ''Gha'' schedule property and mandatory injunction in respect of ''Ga'' schedule property is not maintainable and the learned First Appellate Court duly passed the order in respect of ''Ga'' schedule property in Misc. Appeal No. 7 of 2012 withdrawing the order of status quo. It was further submitted by him that the learned First Appellate Court could not assess the issues as regard the ''Gha'' schedule property in that Misc. appeal and the said opposite party has been injuncted in respect of that schedule property.

Mr. Basu also took me to the petition filed by the plaintiff which is C.O. No. 2397 of 2013 to show that in that case the petitioner, plaintiff, has claimed that after one day of the filing of the suit, he purchased a strip of land measuring 1.5 satak on 05-10-2010 and he has further claimed that after purchase of the ''Ka'' schedule property, he constructed one 50 ft. long wall on the eastern side of the ''Ka'' schedule property and for maintenance of the said wall, he has left a portion of the land vacant. Thus, he submitted that it is beyond contemplation that a person while giving one wall will keep some space beyond that wall only for repairing purpose. He submitted that boundary wall means "boundary". Thus, he tried to convincing this Court that the claim of the present petitioner/plaintiff that there was no boundary wall as claimed in the plaint is not tenable. Thus, he submitted that the present petitioner is out of possession in respect of both "Ga" and ''Gha'' schedule property and the prayer of the present petitioner in respect of ''Gha'' schedule property is barred under Section 34 of the Specific Relief Act.

Mr. Basu further submitted that if the construction over the ''Ga'' schedule property is allowed to be continued then the plaintiff, will not be prejudiced as the defendant/opposite party will claim no equity and he may be permitted to construct one more floor only on the existing building on the ''Ga'' schedule property.

Regarding Section 34 of the Specific Relief Act corresponding to Section 42 of the old Act of 1877. Mr. Basu cited a decision as reported in , AIR 1972 (S.C) 2685 and the decision of this Court as reported in , AIR 1974 (Cal) 342.

He also cited another decision of the Hon''ble Apex Court as reported in , AIR 2012 (S.C) 1727 (paragraphs 86 to 89); wherein the Apex Court has laid down the points which will be considered by the judicial officers or the judges at the time of granting of injunction.

It was submitted by Mr. Chatterjee, learned Advocate appearing on behalf of the petitioner in C.O. 1256 of 2013 and C.O. 2397 of 2013 that the amendment petition was wrongly disallowed by the learned trial court as per the impugned order dated 21-5-2013.

He took me to the copy of the order passed by the learned trial court in respect of an application under Order 6 Rule 17 of the Code of Civil Procedure. As regards the order passed in connection with the temporary injunction petition by the appellate court giving rise to C.O. 2397 of 2013, it was submitted by him that at present it is his submission that he has been dispossessed in respect of both ''Ga'' and ''Gha'''' schedule property. He took me to the copy of the prayer portion of the plaint to show that if it is read carefully, then there will be only a conclusion that he has been dispossessed from both ''Ga and Gha schedule property. He further submitted that the learned trial court ought to have directed for appointment of Local Investigation Commissioner to judge the case of the parties properly.

As regards the amendment application, Mr. Chatterjee submitted that if the amendment petition is allowed, then the nature and character of the suit property will not be changed and that it will cause prejudice to the opposite party/defendant. He submitted that in the said application made under Order 6 Rule 17 of the Code of the Civil Procedure, the present plaintiff prayed for deletion of the name of Nasiruddin and in his place, the name of Najrul Islam is to be substituted. It was further prayed in that the application that on 5.10.2010 the said plaintiff purchased a strip of land measuring 1.05 Satak as per the deed dated 5.10.2010, i.e. Ga and Gha schedule property from the two women, Anjuara Begum and Sabnam Tuhina. He further submitted that the suit was filed on 4.10.2010 and as such, that purchase was made after the filing of the suit and accordingly, the amendment petition was necessary.

In the amendment petition, it has also been prayed that the area of the suit property will be increased to 6.5 decimal if the amendment application is allowed. He further submitted that the said amendment application was filed before the injunction matter was disposed of by the learned trial court but after the Local Inspection Commissioner submitted his report in December, 2010 and it may be noted that the amendment petition was filed in March, 2011 and was rejected as per the Order dated 21.5.3013, naturally after the temporary injunction petition was disposed of. He submitted that the appellate court did not consider at all the report of the Local Inspection Commissioner while disposing of the temporary injunction petition in appeal. He took me to the order of the learned trial court at page 41 of the C.O. 1256 of 2013.

In reply, Mr. Basu submitted that unless a specific prayer is made by the plaintiff for amending plaint to incorporate therein specifically that he has already been dispossessed from the Gha schedule property and without praying for recovery of khas possession in respect of that Gha schedule property, the plaintiff cannot proceed with the suit. It was further submitted by Mr. Basu that Section 34 of the Specific Relief Act is a bar to such a prayer unless proper court fee as per the valuation of the Gha schedule property is made.

Mr. Basu appearing as the learned Advocate for the defendant in C.O. 2397 of 2013 submitted that the learned trial court duly rejected the application under Order 6 Rule 17 of the Code of Civil Procedure as filed by the present plaintiff. His line of attack is that this amendment petition, if allowed, will highly prejudice the present defendant as the area of the suit property will be changed, it will give rise to another cause of action and of another date, that there was long delay in filing of the application for amendment, that is the alleged purchase was made on 5.10.2010 and the application was submitted on 9.3.2011 after a gap of more than five months. And if the amendment is allowed, then where the new land allegedly acquired by the plaintiff on 5.10.2010 can be fixed and that will virtually give a go-by to the sketch map appended to the plaint and which is a part of the plaint. Thus, he submitted that the prayer for amendment was made just to create further case of the plaintiff to fix that strip of land to be his own property which was already inspected by the Local Inspection Commissioner who submitted the report prior to the filing of the amendment application.

On hearing the learned Advocates for the parties and considering the recitals made in the application giving rise to these three civil orders and the relevant documents, this court is satisfied that as regards the temporary injunction in respect of the suit property, this court cannot venture to dispose of all the arguments made by Mr. Bose. If this court answers all these points, then there will have nothing for the trial court to decide. Thus, this court prefers not to give any answer to such arguments and those points will remain open to the learned trial court to decide.

I have given my anxious thoughts to the arguments made by the parties and on perusal of the applications and documents as filed in C.O. 1802 of 2013 and C.O. 1256 of 2013, this court prefers to dispose of these two applications.

It may be noted that the appellate court has already waived any order of injunction in respect of "Ga" schedule property but at the same time the said learned court has injuncted the present defendant in respect of the "Gha" schedule property. This court is not willing to say that the case is barred under Section 34 of the Specific Relief Act which will be decided by the trial court, but at the same time, this court must put it on record that it is now admitted by the learned Advocate of the plaintiff that he has been dispossessed in respect of "Gha" schedule property also. This being so, the plaintiff must take steps regarding "Gha" schedule property and before he takes steps, there cannot be any order of injunction in respect of "Gha" schedule property also.

It was argued by Mr. Chatterjee, learned Advocate appearing on behalf of the plaintiff in reply that the learned trial court would have asked for appointment of an Investigation Commissioner to relay the suit property and to ascertain as to whether the strip of land as shown as Ga and Gha schedule property is the part and parcel of Ka schedule property. This matter will be left open to the learned trial court if it wants to appoint one Investigation Commissioner but at the same time he may note the arguments of the learned Advocate appearing on behalf of the defendant as made before this court who tried to establish that there was already one wall on the eastern side of the Ka schedule property and as such, the prayer as claimed by the plaintiff had already been demarcated and in that case, if there is no dispute as regards the identification of the suit property, such appointment of Commissioner may not be necessary.

Thus, C.O. 1802 of 2013 is allowed on contest in part with the condition that the present defendant or the plaintiff will not allow create any third party interest in respect of both Ga and Gha schedule property. This Court further order that even if in respect of "Ga" schedule property there will be no order of injunction but he will not be allowed to raise construction above the first floor.

C.O. 1256 of 2013 as filed by the plaintiff is dismissed on contest without any order as to costs.

Let the order passed by the leaned appellate court in Misc. Appeal No. 7 of 2012 dated 15th March, 2013 be set aside so far as it relates to Gha schedule property.

As regards, C.O. No. 2397 of 2013, this court is of the considered view that if the amendment petition is allowed, then the area of the suit property will be increased, cause of action will have to be given a separate date, the story of purchase vide which the present plaintiff derived his title is also to be reconsidered, that where that 1.50 decimal of land is to be fixed in the sketch map and the schedule of the plaint, that sketch map is part and parcel of the plaint, that if the amendment is allowed, the total area of the suit land will be increased from 5.00 decimal to 6.50 decimal, this court is in doubt as to whether that extra land of 1.50 decimal can be fixed on the plaint in the sketch map and if the amendment is allowed, the present defendant will certainly be prejudiced.

It may be recalled that there is substantial delay in filing of the amendment petition which was filed in March, 2011 and the alleged acquisition was made on 5.10.2010.

Thus, C.O. 2397 of 2013 is dismissed on contest without any order as to cost.

Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.