Prasanta Maji & Ors vs Sukhbindar Singh & Ors
2022 Latest Caselaw 5104 Cal

              IN THE HIGH COURT AT CALCUTTA
                  Civil Appellate Jurisdiction
                         Appellate Side

Present :-     Hon'ble Mr. Justice I. P. Mukerji
               Hon'ble Mr. Justice Subhendu Samanta

                             FMAT 227 OF 2022
                                   With
                               CAN 1 of 2022

                            Prasanta Maji & Ors.
                                       Vs.
                         Sukhbindar Singh & Ors.

   For the Appellants             :-     Mr. Iftekar Munshi Adv.

   For the Respondents            :-     Mr. Sudip Deb,

Mr. Riju Ghosh, Mr. Sumitava Chakraborty, Advs.

   Judgment On                    :-     05.08.2022.



I. P. MUKERJI, J.:-

The suit before the learned court below was for declaration of title of the

appellants/ plaintiffs (the appellants) and for partition of a property claimed

to be jointly owned and possessed by them and the respondents/defendants

(the respondents).

The subject matter of dispute is a parcel of about 53 decimals of land

situated at Mouza - Barisha under P.S - Kolaghat in the district - Purba

Medinipur. The appellants say that the appellant Nos.1 to 7, the five sons

and two daughters of Bhupati Majhi inherited intestate from their father 18

decimals. The other appellants 8 to 14 have inherited 17 decimals from

Jugal Chandra Maiti. All this adds upto 35 decimals. The appellants also

say that the respondent No. 1, Sukbinder Singh is the owner of 18 decimals

of land out of which he has transferred some part to his minor children the

respondent Nos. 2 and 3.

According to the respondents, this 53 decimals of land originally belonged to

Rakhal Chandra Bera and his brother Madhab Chandra Bera in equal shares. One Gunadhar Bera became the owner of the entire 53 decimals of

land. As he was illiterate, he could not record his name in the land register

as a result of which only 1/3rd share was recorded in the name of Jugal and

Gunadhar Bera and 2/3rd in the name of Jugal Chandra Maiti and Bhupati

Majhi. Therefore, according to the respondents, the appellants have no

share in the property. The respondents say that the Beras have transferred

the property in favour of the first respondent who along with the other

respondents to whom he has transferred part of the property claims to be

the owner of the entire property.

In this suit for declaration and partition, an interim application was moved

by the appellants to restrain the respondents from making any construction

on the land. The appellants say that such is the speed of construction

undertaken by the respondents that if they are not restrained by the court,

they will make construction over the entire parcel of land, to their great

prejudice.

The learned judge of the court below narrated all the above facts in a

detailed judgment and order. He refused the order of injunction. It was on

the ground that the appellants could only produce the "LRR-OR in the name

of Bhupati Majhi and Kanan Bala." They could not produce the original title

deeds, by which their predecessor-in-interest Bhupati Majhi had allegedly

purchased the property from Subal Chandra Majhi on 26th June, 1953.

Learned counsel for the respondents submits that the appellants had to

prove their title to the property in order to obtain any order of injunction.

Learned counsel for the appellants submits that even when the initial order

of injunction passed by the learned court below was in force, the

respondents were making construction in violation of the said order. Now,

that the order of injunction has been vacated, they are making construction

with great rapidity.

The learned court below had initially passed an order of injunction. On

hearing the interim application and on the above grounds it vacated this

order.

Hence this appeal.

In a partition suit, ownership is undivided and possession is joint. This suit

may include reliefs seeking declaration of title and thereafter partition. In

such a suit, the court has to declare the title of the parties in a preliminary

decree and then proceed to partition the property.

In this suit the right to the property is in question. The property under the

rule of lis pendis in Section 52 of the Transfer of Property Act, 1882 cannot

be transferred to a third party except with the leave of the court and on the

terms and conditions imposed by it.

Transfer of property by the respondents is not alleged. It is alleged that they

are proceeding to make construction thereon.

An important question arises in this appeal. What considerations are to be

taken into account by the court in granting or refusing to grant an interim

order of injunction restraining construction in the property which is the

subject matter of the partition suit?

Like in all other applications seeking interlocutory injunction, the plaintiff

has to establish a prima facie case and that the balance of convenience is in

favour of the order sought and that irretrievable injury would result, if it

was not granted.

The general principles for grant of interim injunction were laid down in

Morgan Stanley Mutual Fund vs. Kartick Das reported in (1994) 4 SCC

225. Paragraph 36 is important and is set out below:-

"36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are--

(a) Whether irreparable or serious mischief will ensue to the plaintiff.

(b) Whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve.

(c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented.

(d) The Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) Even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court..........................

25. The need to see that a prima facie case is made out, before a Court grants an ad interim injunction, cannot but be over-emphasized. Prima facie case also should be such that it should appear on record that there is a bonafide contest between the parties and serious questions is required to be tried. If the plaintiff has no right, title or interest in the property, normally there is no question of granting equitable relief in his favour. The fact of dispute could hardly be a ground. In this regard, reference may usefully be made to the following observations of the Supreme Court in the case of United Commercial Bank vs. Bank of India, (1981) 2 SCC 766, which was quoted with approval in Morgan Stanley's case (supra) at page 787."

Prima facie case is also seen as one arising out of a "bonafide contest

between the parties" or where serious questions are required to be tried.

(See United Commercial Bank vs. Bank of India and Ors. reported in

(1981) 2 SCC 766.

To what extent the appellants were required to prove their title, to establish

a prima facie case for the purpose of obtaining an order of injunction

restraining construction by the respondents?

In Sopan Maruti Thopte and Anr. Vs. Pune Municipal Corporation and

Anr. reported in AIR 1996 BOMBAY 304, the Bombay High Court held in

relation to a title suit that the plaintiff had to show some right, title or

interest in the property to get an order of injunction against the defendant.

The plaintiff seeking a restraint order on the defendant from making

construction on a property is required to prove prima facie that he has title

to it or is entitled to possession thereof or both. Assertion of title or title and

possession in the pleadings, with the necessary details is sufficient for this

purpose. There is no requirement to produce the original title deeds.

However, this prima facie case is subject to displacement by the defendant

upon his showing on affidavit evidence that such claim of the plaintiff is

absolutely non-existent. In that case, the order of injunction may be

refused.

The averments in the plaint disclosing the title of the appellants which also

included the source thereof, at the stage of consideration of the interim

application should have been considered as sufficient for the court. The

appellants had also produced the record of rights which prima facie showed

that they were in possession of the property. The respondents could not

prove at that stage on affidavit evidence that the assertion of title had got

absolutely no basis and that the appellants were devoid of any right

whatsoever to the property. On that basis, the court had to consider grant of

an injunction. They were not required at the interim stage to produce the

original title deeds.

The appellants had been able to discharge their onus of making out a prima

facie case.

The respondents have been unable to displace this prima facie case.

If injunction was refused and the respondents continued with the

construction and ultimately, the appellants were able to establish their title,

it may not be possible for the court to easily reverse the effect of

construction and restore the land or property to the said position it was

prior to the construction. On the other hand, if an injunction was granted

and ultimately the appellants lost, it would be open to the court to consider

award of damages to the respondents for being unable to make construction

during this period. This is how the balance of convenience ought to have

been adjudged.

In this kind of a suit for declaration of title and partition, the title is

determined by a preliminary decree, on trial, by examination of witnesses

and proof of documents. Till this exercise was completed by the court below,

on the prima facie case made out by the appellants and considering the

balance of convenience, they were entitled to an order of injunction

restraining the respondents from making construction.

I pass an order of injunction restraining the respondents from carrying on

construction till the preliminary decree is pronounced. We request the

learned court below to pronounce the preliminary decree by 31st December,

2022. Only after pronouncement of the preliminary decree, it would be open

to the respondents to make an application before the learned court below to

carry on the construction, which the learned court below will consider in the

light of the preliminary decree.

The impugned judgment and order is set aside.

The appeal is allowed. CAN 1 of 2022 is disposed of.

Certified photocopy of this order, if applied for, be supplied to the parties

upon compliance with all requisite formalities.

I agree.

(SUBHENDU SAMANTA, J.)                                  (I. P. MUKERJI, J.)