Sarbeswar Pradhan, since deceased, Represented by Birendra Nath Pradhan & Ors. vs Bijay Krishna Pradhan, since deceased, Represented by Smt. Annapurna Jana & Ors.

Ajoy Kumar Mukherjee, J

This appeal has been directed against the judgment and decree dated 21st August, 1991 passed by the Additional District Judge, 2nd court, Contai in Title Appeal No. 63 of 1991. By the impugned judgment, the court below has set aside the judgment and decree dated 10th April, 1991 passed by the 2nd Munsif, Contai in Title Suit no. 223 of 1987.

The appellant herein as plaintiff filed aforesaid suit for permanent injunction against the opposite party/defendants/villagers. According to plaint case, the plaintiff/appellant purchased land in the year 1965 being Dag no. 582 and 583 under Khatian no. 242 at Mouza Dera. Plaintiff’s further case is Plot no. 584 having an area of about 4 decimal is in the nature of “Dhosa” land and being a vested land it is under the disposal of the Government. The plaintiff/appellant purchased the said two plots being no. 582 and 583 from the original owner, Rabindra Nath Giri, which are adjacent to aforesaid suit plot no. 584. His vendor was possessing the said Government land being plot no. 584 and as such said plot has been amalgamated with his purchased plot and his vendor has handed over possession of the said suit plot also to him at the time of sell of plot no. 582 and 583. However, in the Record of Rights the suit land being Dag no. 584 is recorded as “ground to be used by public for dumping pot”. The plaintiff’s further case is that for his unlawful occupation of said suit plot, the State of West Bengal claimed Rs. 920.80/- towards indemnification for the period of 1372 B.S. to 1393 B.S. in connection with LT case no. 19 of 1394 and he paid said amount to Government. He further contended that he has been possessing the land with the consent of the villagers. However, the cause of action arose when the defendants/villagers threatened for dispossession on 29.11.1987 claiming that the suit plot is being used by the villagers as dumping of earthen pots. The appellant/plaintiff then filed aforesaid suit for permanent injunction for restraining the villagers/defendants to trespass or utilize the suit land being plot no. 584.

Mr. Gayen on behalf of the appellant argued that the suit plot no. 584 has been amalgamated with his purchased plot no. 582 and 583 and cannot be demarcated properly. He further argued that court below erroneously considered suit plot as “Khas Mohal Land” under West Bengal Estate Acquisition Act, 1953. Referring Section 175 of the West Bengal Land Management Manual, 1977, Mr. Gayen contended that appellant is possessing Government land for more than 12 years and as such Government has to follow due process of eviction or give compensation for dispossession from land. Mr. Gayen strenuously argued that the court below failed to consider essentials of a valid custom and that the defendants claimed customary right over the suit property basing on a custom which has been abolished prior to 1960 due to modification of usage of Aluminium Pots in place of earthen Pots and as the custom lost it’s essential it has become an invalid custom upon which respondents cannot claim customary right. On the contrary, as soon as Government accepted the rent from unauthorised occupant for unauthorised occupation, a relation of landlord and tenant got established.

The defendants of the said suit are some of the villagers who allegedly obstructed the plaintiffs and they have filed written statement and denied all materials allegations made in the plaint. The defendants’ contention is that the villagers are using the suit land for dumping earthen pots used in Shardh ceremony, since time immemorial. It was further contended that the suit has not been filed as a representative suit in compliance with Order 1 Rule 8(2) of the Code of Civil Procedure. Moreover, the land in question is a property of the State, used by the common villagers but the State has not been made party in the present case.

Learned Trial Court did not deal with the issue about the non-compliance of Order 1 Rule 8(2) of the Code, raised by the defendants nor he has dealt with the question raised by the defendants as to whether the State of West Bengal is a necessary party of the said suit or not. However, the Trial court observed that the presumption of recording in the Record of Rights that the property in question is a “ground to be used by public at large for dumping pot” could not been rebutted by the plaintiff. But the Trial court concluded that the suit is a simplicitor suit for permanent injunction and the plaintiff is in possession of the said property and when he has once paid damages for wrongful user of the suit plot, so plaintiff is entitled to a decree for permanent injunction against the defendants.

Being aggrieved by the judgment and decree of permanent injunction, the respondents herein filed first appeal before the Additional District Judge, on the ground that the villagers have a customary right over the said property and, therefore, the plaintiff cannot restrict their access over the said suit plot. They further contended that the entry in Record of Rights clearly show that the Government has recognised the plot as a place for dumping earthen pots by the villagers on ceremonies.

Learned Appellant Court while dealing with the appeal came to a finding that plaintiff as PW 1 admitted that the suit plot being Dag no. 584 is a Khas land of the State and the respondent is in unauthorised possession of the same. He further observed that the entries in C.S Record of Rights (CSROR) and R.S. Record of Rights (RSROR) clearly show that the land in suit is for the use of general public for the purpose of dumping earthen pots. He further observed that noting of encumbrances against the suit land in CS ROR clearly shows that the land in question was treated as Khas land from long before and the evidence on record corroborates with the defendant’s case that the land is a Khas land and as the suit land is a Khas land there is no question of vesting. He further observed that as there was no question of vesting the Khas land, encumbrances remained there as it was and if the plaintiff is found in possession thereof, he must be in possession along with that encumbrances. According to Court below, it is not in dispute that Government recognised the land as a place to be used by the public in general for dumping earthen pots. So such right cannot be taken away merely on payment of damages demanded by the Government for unlawful occupation of the same. He further observed that the learned Trial court erroneously held that the Government realised lease rent vide Exhibit-6 but Exhibit-6 also relates to LT case no. 19 of 1394 B.S. and accordingly, Exhibit-6 also relates to damages for unlawful occupation of the suit property paid by the plaintiff. Accordingly, the court below allowed the Appeal and set aside the judgment and decree passed by the Trial Court in Title Suit no. 223 of 1987.

Following substantial question was famed by the Division Bench of this Court, when the Second Appeal was admitted for hearing:-

“Whether the learned Court of Appeal below erred in law in overlooking that admittedly the plaintiff was in unauthorized occupation for a long period for which the State had initiated proceedings against him and had realized compensation for such unauthorized occupation together with rent payable therefor and has thereby recognised the right of the plaintiff and by reason of such acceptance of rent a tenancy is created in favour of the plaintiff, and therefore, he is entitled to maintain his possession.”

Decision with Reasons

At the outset, it appears from a bare reading of plaint that the plaintiff’s suit is simplicitor suit for permanent injunction against the defendants/villagers. Though the presumption in respect of entries in Record of Rights is in favour of public at large, which according to both the courts below remains unrebutted, it is not known whether the persons whom the plaintiff has impleaded in the category of defendant are the representative of the villagers at large or not. The Trial Court has not dealt with the issue raised by the defendant/respondents that the suit is barred under the provision of Order 1 Rule 8(2) of the Code.

In a suit for perpetual injunction simplicitor under the provision of Section 38 of the Specific Relief Act, a perpetual injunction may be granted to the plaintiff to prevent the breach of an “Obligation” existing in his favour. The term “Obligation” has been defined in Section 2(a) of the Specific Relief Act 1963. It includes every duty enforceable by law. When a legal duty is imposed on one person in respect to another that other is invested with the corresponding legal right. Such obligation may arise out of contract, trust etc. and perpetual injunction can be granted in case of breach thereof. In obtaining a perpetual injunction the plaintiff has to prove a legal right and its violation. In fact, it is the breach of trust or contractual “obligation” that gives rise to injunction. Needless to say that every invasion of a right or breach of a contract may not confer the right to injunction. Accordingly, where prayer is for granting perpetual injunction, the plaintiff must first establish his legal right.

Here, in the present case, the plaintiff as PW-1 admitted that the land in plot no. 584 is a Khas land of the State and he further admitted that the State Government claimed compensation for his unauthorised possession of said land by giving notice and they have also realised “damage cost” for unauthorised occupation from 1372 B.S. to 1393 B.S. which has been reflected from Exhibit 3 and 4. The plaintiff filed one Khajna receipt which is marked as Exhibit 5 but such receipt does not disclose in connection with which plot it was paid. Moreover, such Khajna receipts are generally issued on the basis of declaration made by the payee and receipts are issued without verifying the right, title, interest in the property.

Exhibit 6 which the plaintiff claimed to be a lease rent appears to have paid in connection with L.T case no. 19 of 1394 B.S. which was initiated by State for realisation of arrear damages for unauthorised occupation of land by the plaintiff. However if the plaintiff wants to establish Exhibit 6 as a payment in connection with lease rent, he must prove that any such lease deed or agreement was executed with the Government. The plaintiff neither made the Government of West Bengal as a necessary party nor has proved any document in support of any such lease.

Needless to reiterate that the entry in record of Rights clearly shows that the Government recognised the land as a place to be used by the general public for dumping earthen pots and I find nothing to interfere with the observation of the court below that such right cannot be taken away merely on payment of “damage cost” demanded by the Government for unlawful occupation of the same and realisation of money by the Government towards indemnification for damages caused by plaintiff cannot be described as lease rent. There is also no cogent evidence to rebut the presumption about entries in record of Rights that the land used for dumping earthen pots by public at large and there is also no cogent independent evidence to show that the ritual of dumping earthen pots after funeral of a deceased Hindu has been abolished prior to 1960 or has been altered by using Aluminium Pot as claimed by Appellant. When presumptive right of general public for using the land for public purpose has been established through entries in C.S. and R.S Record of Rights and plaintiff failed to rebut the presumption of recording in the Record of Rights by adducing cogent evidence, the prayer for decree for permanent injunction in a suit, which has not been filed representing the public at large in whose favour presumption stands, cannot be passed.

The ultimate finding of trial court is palpably erroneous in view of the fact that he observed that plaintiff could not rebut presumption about entries in Record of Rights in one hand but on the other hand he observed exhibit 6 as a document supporting lease rent, which is actually not and the decree for permanent injunction was passed only on the basis of the plaintiff’s claim of possession in the suit property. When damages has been paid for unlawful use of land then plaintiff being a wrong doers cannot claim equitable relief, more so when it is not his case that he paid any amount to any authority after 1395 B.S. for wrongful use of such land, in respect of which he has no right, title, interest. The plaintiff, who seeks equity, must do equity first. A wrong doers cannot claim equity and in order to claim equitable relief like permanent injunction, plaintiff must show that his possession is lawful. Mere inconvenience is not enough to entitle a party to an injunction. There must be violation of a legal right and in considering whether such injunction can be granted, the amount of injury sustained is material. Where no irreparable injury is shown, the injunction should be refused.

In the present case, since the plaintiff failed to prove breach of contract or breach of any obligation by the defendants and on the other hand, it has come in the record that the plaintiff is not in lawful possession of the property, I find that the court below was justified in setting aside the judgment and decree passed by the Trial Court and I find nothing to interfere with the observations made by the court below.

In such view of the matter, SA 356 of 1994 is dismissed and the judgement and decree passed by the court below in Title Appeal No. 63 of 1991 is hereby affirmed.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.