Samir Roy and Others vs Sagar Mata Builders and Others

Indrajit Chatterjee, J.—1. I am hearing this application under Article 227 of the Constitution of India as against the order dated 14th August, 2013 passed by the learned Additional District Judge, 4th Court, Jalpaiguri in connection with Misc. Appeal No. 2 of 2013 and that court as per that order affirmed the order of the learned Civil Judge (Junior Division), Jalpaiguri passed in Title Suit No. 67 of 2012 dated 30th January, 2013 wherein the learned trial court was pleased to reject the prayer of the present petitioners as filed under Order 39 Rule 1 & 2 of the Civil Procedure Code.

It is the case of the petitioners that on 05-02-1963, one Birendra Nath Singh @ Biren Singh Roy transferred 0.29 acres of land out of his total land measuring 0.63 acres which has been described in the schedule of the plaint of that Title Suit referred to above. Such transfer was made in favour of one Nar Bahadur Pradhan and after that transfer, Birendra Nath Singh remained in possession of 0.34 acres of the said land and he was in possession of the said property. After the death of Birendra Nath Singh @ Biren Singh Roy, ultimately the property came to the plaintiff Nos. 1 to 5 who got 50% of the share and the plaintiff No. 6, being Jagalal Roy got the rest 50% being the nephew of Birendra Nath Singh Roy. The plaintiff Nos. 1 to 5 acquired 50% of the title by way of inheritance after the death of Birendra Nath Singh Roy and Saidey Roy. It is the further case of the plaintiffs/petitioners that they are in possession of the said property by paying taxes regularly in the office of the Revenue Inspector under the B.L. & L.R.O., Rajganj and that their property is in Mouza-Dabgram, Parganas-Baikunthapur, JL No. 2, Sheet No. 12 of R.S. Khatian No. 708, R.S. Plot No. 183, P.S.-Bhaiktinagar, District-Jailpaiguri, measuring-0.34 acre.

It is also the case of the present petitioners that the defendants approached the plaintiff Nos. 1 and 6 long time back to sell the scheduled property in their favour but as the price was not negotiable one the said prayer was refused. The present petitioners also came up with the fact that on 20-02-2012 at about 11-00 a.m. the opposite party men tried to make construction over the same by encroaching on a portion of the petitioners'' land. Thereafter, that Title Suit was filed and as per the order dated 14-3-2012 the plaintiffs got an ex parte order of injunction. Thereafter, the present opposite parties/defendants entered into appearance and the temporary injunction petition was heard in presence of other side and as per the order dated 30-01-2013, the said temporary injunction petition was dismissed. The present petitioners took up that matter before the learned District Judge, Jalpaiguri and the Miscellaneous Appeal No. 2 of 2013 which was transferred to the 4th Court of the learned Additional District Judge, Jalpaiguri and that Misc. Appeal was dismissed affirming the order of the learned Civil Judge (Junior Division) passed in that suit and against that order, the present petitioners being the plaintiffs in that title suit have approached this court.

It may further be mentioned that at present plaintiffs are not in possession over that property and they filed one petition for recovery of Khas possession before the trial court and that was allowed.

The learned advocate appearing on behalf of the petitioners frankly submitted before this court that as the possession of the suit property is not with the plaintiffs/petitioners no direct order of injunction can be passed. But he submitted that some conditions may be imposed so that the flats constructed over the suit property at the time of their transfer may be put with some sickles.

The case of the opposite party before this Court can be stated in brief thus:

The present defendants have denied the entire story of the present petitioners. It is the positive case of the defendants that the defendants/opposite parties are one unregistered partnership firm and their partners. It has been agitated that the defendant partnership firm is carrying on its construction work in the land measuring 1 bigha 13 kattah 6 chattak or 0.544 acre including the land measuring 0.34 acre described in the schedule of the plaint.

The defendants/opposite parties are stretching their title which is mentioned in the written objection filed before the learned trial court now in page No. 42 wherein the defendants claimed that Smt. Donga Bhutia and Smt. Doma Tshering Bhutia both were the daughters of the recorded owner Chukti Bhutiani wife of Late Tshering Lama @ Tshering Lama Bhutia was the absolute owner who was in physical possession of all that piece of land measuring 3.00 acre in R.S. Khatian No. 708, Plot No. being-183 of Mouza-Dabgram including the suit property described in the schedule of the plaint. Donga Bhutia and Doma Tshering Bhutia transferred the property to Bhabani Prasad Ghosh, T. Ghosh and Goutam Ghosh by a registered deed of sale being deed No. 2400 of 1975 which was registered on 22.07.1975. Thus, Bhabani Prasad Ghosh and two others became the owner of that 3 acre of land including the suit property and they acquired permanent, heritable and transferable right, title and interest over the said property.

Bhabani prasad Ghosh and those two others sold and transferred the land measuring 0.554 acre out of that land measuring 3.00 acre to in favour of Smt. Indrani Roy by a registered deed of sale being deed No. 3016 of the year 1976 and registered on 21.04.1976. Thus, the said Indrani Roy acquired right, title and interest over the land measuring 0.554 acre. Smt. Indrani Roy sold that land measuring 0.554 acre according to the title deed as per one registered instrument transferring 0.533 acre of land recorded in Khatian No. 702 in Plot No. 183 of the said Mouza in favour of R. Singhal and three others including Indrani by a registered deed No. 4235 of 1991 and registered on 19.07.1991. Thus, those four persons became the absolute owners of the said land. They entered into a partnership agreement with Sagar Mata Enclave Private Limited as per a partnership deed dated 01.06.2010. Thus, it is the positive claim of the defendants/opposite parties that they are the owners and possessor of the said property and the claim of the plaintiff is groundless.

It was submitted by the learned advocate appearing on behalf of the opposite party that as the petitions are not in possession of the suit property no order of injunction cannot be passed in whatever from it may be. He cited the decisions of the Apex Court as reported in , 2008 (11) SCC page 1 wherein the Apex Court on the fact before the court held that construction work may be allowed to be proceeded with but the same may be permitted only subject to the ultimate result of the suit and that the suit be disposed of as early as possible and the respondents must also furnish sufficient security before the learned Trial Judge. The other decisions are reported in , AIR 2010 SC 296 and 2015 (15) SCC 735.

It is also the case of the present opposite parties admitting the fact in paragraph 16 of the W.S. that the name of Brirendra Nath Sinha @ Brien Singha was recorded in R.S. Khatian No. 708 but the suit property is not related with the R.S. Khatian No. 708. The opposite parties further claimed that the suit property is under Khatian No. 702 of the R.S. plot No. 183. The opposite parties have also denied that on 5.02.1963 Birendra Singh Roy transferred 0.29 acre of land out of his total land measuring 0.63 acre described in the schedule of the plaint in favour of Narbahadur Pradhan.

In paragraph No. 19(i) - of the W.S. the opposite parties have claimed that the plaintiffs are illegally claiming the land described in the schedule of the plaint. They have mentioned the Khatian number of the said land as 708 but in fact the R.S. Khatian number of the land in question is 702 and the plaintiffs are no way connected with the land in dispute as described in the schedule of the plaint which is under the R.S. Khatian No. 702.

The defendants have further claimed that in their partnership firm there are four partners being Radheysham Singhal, Smt. Indira Devi, Sri Balaram Goyal and Gurucharan Singh Hora and they are the absolute owners of the land measuring 1 Bigha 13 Khattas 6 chattaks or 0.554 acre in the R.S. Khatian No. 702 in Plot No. 183 of sheet No. 12 within Parganas-Baikanthapur within police station Bhaktinagar including the land described in the schedule of the plaint. The defendants have given one boundary of the land by saying that in the north 19 feet wide anchal road in the south C.S. plot No. 661; east land of Durga Maitra and west C.S. plot No. 240 and they got such property by virtue of a registered deed of sale from Smt. Indrani Roy as per deed No. 4235 of 1991 which was registered on 19.07.1991 and being the owner and occupier of the land as described in that deed No. 4235 Indrani Roy sold the property to the partners of the opposite party No. 1 firm.

The defendants have further claimed that over that 0.533 acre of land out of that 0.554 acre of land the defendant No. 1 partnership firm has constructed a residential complex on the said land which is in physical possession of defendants being the partners of the said partnership firm.

It has further been claimed by the opposite parties that they are the absolute owner of the land measuring 0.554 acre including the suit land and the said 0.533 acre in the R.S. Khatian No. 702 of R.S. plot No. 183 of Mouza-Dabgram. They have denied the other claim of the plaintiffs/respondents as regards threatening them in their peaceful possession and grabbing their property.

It is submitted by the learned lawyer appearing on behalf of the opposite parties that they being the exclusive owners and the occupiers of the property mentioned in the schedule of the plaint. It was further submitted that the defendants cannot be injuncted and the orders passed by the learned Civil Judge (Junior Division), Jalpaiguri rejecting the prayer under Order 39 Rules 1 and 2 CPC was passed on contest and the order has been affirmed by the Additional District Judge, 4th Court, Jailpaiguri in Misc. Appeal No. 02 of 2013.

At the time of argument it was further argued by the learned lawyer appearing on behalf of the opposite parties that as per the sale deed No. 3277 of 1967 Jeet Bahadur Tamang purchased 2 katthas of land of plot No. 183/661 and Swaraswati Roy as per deed No. 6506 for the year 1977 purchased from Birendra Singh Roy 0.12 acres of land in respect of Khatian No. 708 of plot No. 183 and the petitioners cannot say that Birendra Singh Roy did not transfer any property after the property was transferred to Narbahadur Pradhan.

I have already said regarding the submission of the learned lawyer appearing on behalf of the petitioners that as they have prayed for recovery of Khas possession no positive order of injunction can be passed against the present petitioners but he submitted that some rigours may be put on the sale of those flats which the present petitioners may transfer in between this legal battle.

I must say in clear tone that now this injunction petition being disposed of by the learned trial judge wherein it has been specifically asserted by both the parties making a claim over the suit property it is to be first ascertained where is the exact land of the present petitioners/plaintiffs. There is no dispute regarding the plot that is 183 but the problem relates to Khatian number as per the plaintiffs/petitioners it is 702 and the opposite parties it is 708. It is the key question to be decided. I was told at the time of argument that application under Order 39 Rule 7 of the CPC has been filed before the learned trial court but that was not disposed of rather injunction petition was disposed of. This court directs the learned trial court to see that the said petition is disposed of at the earliest before the parties lead evidence in support of their claim. The commissioner so appointed must have experienced over measurement of land, if ''survey passed advocate'' is not available in that court. In a civil suit where the parties are at loggerheads in respect of the same property the local investigation is a must.

Considering the documents relied upon by the petitioners and the opposite parties this Court is satisfied that the present opposite parties must be put with some sickles when they will transfer their property creating third party interest. According to me relying on the decision of the Apex Court as decided in , (2008) 11 SCC Page-1 the present opposite parties while disposing of the flats and thereby creating a third party interest must put a clause in bold letters on each such deed to be executed by the defendant No. 1/opposite party company represented by its director that is the other defendants opposite parties ''that this matter is sub-judiced and all sales shall be subject to the ultimate decision of the Title Suit No. 67 of 2012 of the Civil Judge (Junior Division), Jalpaiguri''. The trial court will see that the petition that is regarding of appointment of commissioner for measurement of the suit property must be disposed of within a month from receipt of a copy of this order by the learned trial court.

This court also directs the learned trial court to dispose of this suit as early as possible with the cooperation of the learned advocate of the parties.

In view of the decision of the Apex Court reported in , (2010) 2 SCC Page-142 I like to put another rigour on the prospective buyers of such flats that "no external construction would be made on the existing structures by the would be purchaser or lessees. However, the present opposite parties or the future possessors or lessors would be permitted to make internal changes in the property for putting it proper, effective and convenient use keeping in view the nature of the business being carried".

Thus, in view of the observations so long made this revisional application is dismissed subject to the observations and directions made hereinbefore. However, in the facts and circumstances of the case there shall be no order of the cost. The office is directed to forward a copy of this order to the learned trial court. Let certified copies of this order be supplied to the parties on urgent basis.

For a prompt action the petitioners/plaintiffs are also directed to submit the copy of this order to the learned trial court.