Sri Bimalesh Upadhyay vs Sri Parshuram Bhagat Singh
2021 Latest Caselaw 4378 Cal

24th August,

(AK)

C.O. 925 of 2021

Sri Bimalesh Upadhyay Vs.

Sri Parshuram Bhagat Singh

Mr. Ayan Banerjee Ms. Debjani Sengupta ...For the Petitioner.

Mr. Tarak Nath Halder ...For the Opposite Party.

The present revisional application has been

preferred against an order whereby the trial court rejected

the petitioner's application under Section 151 of the Code

of Civil Procedure for restoration of the petitioner's

possession.

The petitioner had alleged that, in violation of an

order of injunction subsisting in the suit, filed by the

petitioner inter-alia for permanent injunction restraining

the opposite party from disturbing the petitioner's

possession, the opposite party illegally dispossessed the

petitioner during the latter's absence when he went to his

native place.

Learned counsel for the petitioner, by placing

reliance on the findings of the trial court in the order of

injunction initially granted, categorically submits that the

said order has attained finality.

Moreover, it is contended that, in view of the order

having been extended from time to time, lastly in the

presence of the opposite party and after the alleged date

of surrender, the trial court acted patently without

jurisdiction in disbelieving the case of dispossession made

out by the petitioner on the premise that the petitioner

could not prove his possession.

Learned counsel for the opposite party contends

that it was for the petitioner to establish his possession in

respect of the suit property, since the specific allegation of

the opposite party is that the petitioner himself

surrendered the suit property in favour of the opposite

party but refused to give anything in writing in that

regard.

Learned counsel for the opposite party places

reliance on the judgment of Meera Chauhan Vs. Harsh

Bishnoi and another reported at (2007) 12 SCC 201, for

the proposition that an order for restoration of possession

cannot be granted unless the party alleging dispossession

clearly proves his previous possession in respect of the

suit property prior to such alleged dispossession.

A glance at the cited report reveals that the factual

context of the said case was completely different from the

instant case. A suit had been filed in the matter, from

which the reported judgment arises, under Section 6 of

the Specific Relief Act, alleging illegal dispossession.

Subsequently, by taking advantage of an order of

injunction restraining the defendant from transferring,

alienating or encumbering the suit property, the

petitioner therein claimed dispossession subsequently.

In such context, the Supreme Court held that it

was for the person alleging dispossession to prove his

previous possession.

First, the entire scope of adjudication in a suit

under section 6 of the Specific Relief Act revolves around

the fact that the plaintiff was in possession in respect of

the suit property prior to the alleged dispossession. The

plaintiff being the dominus litis, the burden and initial

onus of proof of prior possession obviously lies on the

plaintiff in such a suit.

That apart, the Supreme Court specifically

considered in the second paragraph of the cited report

that the ex-parte interim order of injunction granted in

the suit from which the said judgment arose was from

transferring, alienating or encumbering the suit property

and not pertaining to the possession in respect of the suit

property.

However, in the instant case, the trial court, vide

order no.1 dated December 11, 2014 specifically

restrained the defendant/opposite party and his men and

agents from creating any sort of disturbance and/or

obstruction in the peaceful enjoyment of the suit property

by the plaintiff/petitioner and from ousting the

plaintiff/petitioner from the suit property in any manner

whatsoever.

Although such order was passed for a limited

period, subsequently the same was extended from time to

time, lastly by the impugned order itself, by dint of which

the application for restoration of possession was also

rejected by the trial court. Strangely enough, the last

previous order of extension was passed subsequent to the

alleged date of surrender of tenancy by the petitioner, in

presence of the learned Advocate for the opposite party,

without any objection being raised on behalf of the

opposite party regarding surrender by the petitioner in

the meantime.

Moreover, the opposite party miserably failed to

produce an iota of evidence to establish his case that the

petitioner had voluntarily surrendered the suit property

in favour of the opposite party; rather, the opposite party

sought shelter under the pretext that the petitioner

refused to give anything in writing with regard to such

surrender.

Keeping in view the above facts, this court cannot

be gullible enough to accept the contention of the

opposite party that the plaintiff suddenly grew altruistic

and voluntarily surrendered the suit property in favour of

the contesting opposite party, although fighting tooth and

nail in the suit and enjoying an order of injunction

protecting the possession of the petitioner.

Hence, the trial court refused to exercise

jurisdiction vested in it by law in rejecting the petitioner's

application for restoration of possession, thereby causing

a gross miscarriage of justice.

Hence, C.O. 925 of 2021 is allowed on contest,

thereby setting aside the order dated March 18, 2021

passed by the Civil Judge (Junior Division), Second Court

at Sealdah, District-South 24 Parganas in Title Suit

No.377 of 2014, insofar as the application filed by the

petitioner for restoration of possession under Section151

of the Code of Civil Procedure was rejected.

It is made clear that the portion of the impugned

order, whereby the existing order of injunction was

extended by the trial court, is maintained and not

interfered with by this court.

The application for restoration of possession of the

petitioner, hereby, stands allowed and the opposite party

is directed to hand over vacant and peaceful possession of

the suit property, subject to the result of the suit, to the

petitioner before the midnight of August 25, 2021.

In default, the opposite party shall not only expose

himself to the risk of contempt but the petitioner will be

at liberty to approach the local police station for adequate

police assistance to hand over possession of the suit

property in favour of the petitioner from the opposite

party within two days from the petitioner approaching the

said authorities, upon the petitioner depositing requisite

costs for police help.

The parties, the court below as well as the police

authorities shall act on the written communication of the

learned advocate for the parties, accompanied by a server

copy of this order, without insisting upon prior

production of a certified copy.

There will be no order as to costs.

Urgent website certified copies of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Sabyasachi Bhattacharyya, J.)