Calcutta High Court (Appellete Side)
Invention Infra Projects ... vs Smt. Rita Rani (Ghosh) Paul & Ors on 8 May, 2023
1
IN THE HIGH COURT AT CALCUTTA
(Civil Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
C.O. 167 of 2023
Invention Infra Projects Pvt.Ltd. & Ors.
Vs.
Smt. Rita Rani (Ghosh) Paul & Ors.
For the Petitioner :Mr. Aniruddha Chatterjee, Adv.
Ms. J. Chatterjee, Adv.
Mr. Rahul Dugar, Adv.
Mr. A. Roy, Adv.
For the Opposite parties :Mr. Probal Kumar Mukherjee, Sr. Adv.
Mr. Sounak Bhattacharya
Mr. Sounak Mondal
Mr. Sahidur Rahaman
Mr. Abhirup Haldar
Heard on : April 11, 2023
Judgment on : May 08, 2023
2
Bibhas Ranjan De, J.
1. The order dated 23.12.2022 passed by Learned Additional
District Judge, Baruipur, District 24 Parganas (South) in
connection with Miscellaneous Appeal No. 34 of 2022 is under
challenge.
2. By the order impugned Learned Judge affirmed the order
dated 16.09.2022 passed by Leaned Civil Judge (Senior
Division) 2nd Court, in Title Suit No. 504 of 2022.
Background facts:-
3. The subject property being 11 decimal of land appertaining to
R.S Plot no. 1332 originally belonged to one Priyanath Ghosh
who died before Hindu Successions Act, 1956 came into force
leaving behind his 3 sons - Amulya Charan Ghosh, Charu
Chandra Ghosh & Putiram Ghosh. Wife of said Priyanath
Ghosh predeceased him. Thereby, 3 sons of Priyanath Ghosh
inherited 1/3rd share each in the subject property. Putiram
Ghosh died leaving behind his widow Jamuna Bala Ghosh
only. Accordingly, names of Amulay Charan Ghosh, Charu
Chandra Ghosh & Jamuna Bala Ghosh have been duly
recorded 1/3rd against share each under R.S Khatian No. 532.
Jamuna Bala Ghosh transferred her 1/3rd undivided share to
Charu Chandra Ghosh on the basis of a registered sale deed
no. 10520 dated 12.12.1962 and delivered possession.
Thereby, Charu Chandra Ghosh became owner of 2/3rd share
of subject property.
4. Amuly Charan Ghosh died intestate leaving behind his widow
(Radharani Ghosh), two sons (Ratan Ghosh & Madan Ghosh)
and 3 daughters (Gita Ghosh, Rikta @ Ritarani Ghosh Pal &
Menoka Das). Thereby, all the heirs of Amulay Charan Ghosh
got 1/18th share each in the subject property. Among them
Menoka Das & Rikta Rani @ Rita Rani Ghosh Paul are plaintiff
no. 1& 2.
5. Gita Ghosh died intestate leaving behind her two sons (Ranjit
Ghosh & Dinesh Ghosh) and 3 daughters (Tinku Ghosh,
Pratima Ghosh & Mithu Mandol). Thereby, all sons and
daughters of Gita Ghosh inherited 1/19th share each in the
subject property. All of them were made as plaintiff no. 3 to 7
in the suit. All in all plaintiff nos. 1 to 7 jointly had 1/6th share
in the property in question.
6. Radha Rani Ghosh, Ratan Ghosh, Madan Ghosh & Charu
Chandra Ghosh having 5/6th share jointly transferred the
entire plot to one Sadek Ali Saikh by a registered sale deed no.
3119 / 1973. Thereby, Sadek Ali Saikh got 5/6 th share in the
subject property. Said Sadek Ali Saikh having 5/6th share in
the property in question died leaving behind his first wife
(Belati Seikh), daughters of first wife (Asma Bibi, Najma Bibi &
Minati Khatun Bibi), 2nd wife (Mamtaz Seikh), three sons of 2nd
wife (Salauddin Seikh, Kabul Seikh and Habibar Seikh) and
two daughters of 2nd wife (Surhiya Begam & Minu Mondal).
7. Salaudddin Seikh died issueless leaving behind his mother
Mamtaz Seikh and widow Rahima Biwi. Legal heirs of Sadek
Ali jointly sold the plot share to the petitioners/defendants.
8. Plaintiffs filed the suit being no. 504 of 2022 before the
Learned Civil Judge, (Senior Division), 2nd Court at Baruipur,
District 24 Parganas (South) along with an application under
Order 39 Rule 1& 2 read with Section 151 of the Code of Civil
Procedure with a prayer for temporary injunction restraining
in the defendants from changing the nature and character of
the subject property and /or from raising any construction
over the subject property and/ or restraining the defendants
from alienating the subject property to any 3rd party. Learned
Judge allowed ex-parte injunction directing both the parties to
maintain status quo in respect of their possession.
9. Feeling aggrieved the petitioners /defendants preferred an
appeal before Learned Additional District Judge at Baruipur,
District 24 Parganas (South). The said appeal being no. 34 of
2022 was heard and Learned Judge affirmed the order dated
16.09.2022 passed by the Learned Civil Judge (Senior
Division), 2nd Court at Baruipur, 24 Parganas (South).
10. Being aggrieved by and dissatisfied with the order dated
23.12.2022 passed by Learned Additional District Judge
Baruirpur, 24 Parganas (South) preferred this application
under Article 227 of the Constitution of India.
11. Learned advocate, Mr. Aniruddha Chatterjee, appearing
on behalf of the petitioners/defendants has contended that
according to opposite party/plaintiffs legal heirs of Sadek Ali
having 5/6th share over the property transferred entire 11
decimal of land in the suit plot in favour of the defendants by
the conveyance deed of 1973 & 2011 were not challenged in
the suit. Mr. Chatterjee has further submitted that Appellate
Court rejected the appeal solely relying upon principle laid
down in Jitesh Pandey Vs. Smt. Urmilata Sinha and
others {(2000) 2 CHN 865} recorded his finding that the
petitioners/defendants preferred an appeal instead of taking
course of Provision of Order 39 Rule 4 of Code of Civil
Procedure and for the reasons learned appellate Court did not
consider the fact that the construction on the subject property
came up to G+5. Mr. Chatterjee has submitted that ratio of
Jitesh Pandey (supra) was overruled by the Hon'ble Division
Bench of this Court in a case of the Bengal Club limited vs.
Sushanta Kumar Chowdhury reported in (2002) 3 CHN
322. Mr. Chatterjee has further argued that leaned Appellate
Court did not look into the suppression of fact of construction
up to G+5.
12. Mr. Chatterjee next contended that even if the opposite
parties/plaintiffs had a right in the subject property, the said
right was extinguished by the passage of time in terms of the
Provision of Section 59 of the Limitation Act.
13. Mr. Chatterjee has further contended that the
suppression of construction up to G+5 was sufficient to refuse
the interim injunction. In support of his contention, he relied
on a case of Madali Ranganna and others Vs. T.
Ramchandra and others reported in {(2008) 11 Supreme
Court Cases 1} wherein Hon'ble Court observed :-
" 22. Grant of injunction is an equitable relief. A person who
had kept quiet for a long time and allowed another to deal
with the properties exclusively, ordinarily would not be
entitled to an order of injunction. The court will not interfere
only because the property is a very valuable one. We are not,
however, oblivious of the fact that grant or refusal of
injunction has serious consequence depending upon the
nature thereof. The courts dealing with such matters must
make all endeavours to protect the interest of the parties. For
the said purpose, application of mind on the part of the courts
is imperative. Contentions raised by the parties must be
determined objectively."
14. In opposition to that, Learned senior advocate, Mr. Probal
Kumar Mukherjee, appearing on behalf of the opposite
parties/plaintiffs, at the outset, has referred to the written
objection filed by the petitioners/ defendants to the injunction
application before the Trial Court admitting the right of the
opposite parties/plaintiffs over the subject property by taking
a plea of adverse possession from the date of their purchase by
a sale deed no. 3119 of 1973 and after lapse of 12 years from
28.04.1973 adverse possession of Sadek Ali Seikh was
perfected by way of adverse possession. Thereby, Mr.
Mukherjee has contended that plea of adverse possession
cannot be taken into consideration at the initial stage after
going into a mini trial.
15. Mr. Mukherjee relied on a case of Israil vs. Shamser
Rahman reported in 18 Calcutta weekly notes 176 wherein
it was held as follows:-
" The Subordinate Judge has held that inasmuch as the
Respondents were in sole occupation of the land with the
consent of their co-sharers, they were entitled to erect
buildings thereon and that the Plaintiffs were in no way
prejudiced by the erection of such a building, because in the
event of a partition of the entire joint property of the parties,
the Plaintiffs might be awarded some other piece of land. In
our opinion, the view taken by the Subordinate Judge is
opposed to the well-established rule applicable to cases of
this description. As was pointed out, by this Court in the case
of Dwijendra Narain Roy v. Purnendu Narain Boy [11 C.L.J.
189 (1910).] , the mere circumstance that one co-sharer has
taken possession of a portion of joint property does not entitle
the other co-sharers to claim joint possession: in other words,
sole occupation by one co-sharer does not necessarily
constitute ouster of the other co-owners. At the same time it
does not follow that because a co-owner is, with the tacit or
express consent of his co-sharer, in sole occupation of a
portion of joint property, he is entitled to change the nature of
that possession or to use the property in a mode different
from that in which it had previously been used. It is not
necessary for our present purposes, indeed it is not right,
that we should further examine this point with reference to
the special facts before us and thus anticipate the decision of
the question in contention between the parties, in the suit.
What the Court has, at this stage, to determine is, whether
there is a bonâ fide contention between the parties, or, as
was said by Mr. Justice Markby in Moran v. R.S.N. Co. [14
B.L.R. 352 (1875).] , whether there is a fair and substantial
question to be decided as to what the rights of the parties
are". To the same effect is the decision of their Lordships of
the Judicial Committee in the case of Walker v. Jones [L.R. 1
P.C. 50 (1865).] , where Turner, L.J., observed as follows:--
"The real point is, not how these questions ought to be
decided at the hearing of the cause, but whether the nature
and difficulty of the questions is such that it was proper that
the injunction should be granted until the time for deciding
them should arrive". It is quite sufficient if the Court find a
case which shows that there is a substantial question to be
investigated and that matters should be preserved in statu
quo until that question can be finally disposed of
[Jones v. Pacaya [[1911] 1 K.B. 455 (1910).] ]. Now upon the
facts stated in the present case, there is no room for
controversy that the Court has to decide a fair and
substantial question as to what were the relations subsisting
between the parties, and what were the rights and
obligations flowing from those relations. Under circumstances
like these, the matter for consideration at this stage is,
whether does the balance of convenience lie: is it desirable
that the statu quo should be maintained or is it right that the
Defendants should be allowed to continue to alter the
character of the land. It is well settled that the Court will not
refuse an injunction in a case of this description so as to give
the Defendants an undue advantage over the Plaintiffs. If the
Defendants in the case before us were allowed to proceed to
the completion of the building which has been erected by
them on the land, it is indisputable that they will be placed in
a position of undue advantage over the Plaintiffs. In this
connection reference may be made to the judgment of Sir
George Jessel in the case of Aynsley v. Glover [ ???] , where
that learned Judge observed as follows at all events, this
being an interlocutory application, let me continue my
building, and I will undertake to pull down if the Court shall
so think fit. That is a very specious argument to address to
the Court, but one must have regard to the effect of allowing
such a proceeding. Supposing a Defendant erects a building
at great cost, when he comes to the hearing he will say to the
Court: „compare the injury to me, in pulling down the building
with the injury to the Plaintiff in allowing the building to
remain‟. Ought or ought not the Court to give weight to such a
representation 1 I think upon this point the observations of
Vice-Chancellor Kinders-ley in the case of the Curriers'
Company v. Corbett [4 D.J. and 764 : 2 Dr. and Sm. 355, 360
(1865).] are very important. The Vice-Chancellor says: „If the
Defendant's buildings had not been completed, there would
have been ground for interference by injunction; but as they
have been completed, the question is, whether the Court
ought to or would order the pulling down of the buildings, or
give compensation in damages. The Defendant's new
buildings are of considerable magnitude and importance,
while the two houses of the Plaintiffs are comparatively of
small value and importance: and it has been decided that in
such a case the Court will not as a matter of course order the
Defendant to pull down his new buildings but will give to the
party-injured by the erection of those buildings compensation
in damages. It appears to me that this is precisely one of
such cases. Consequently the learned Vice-Chancellor
considered that, the buildings being erected, the comparative
values of the Defendant's buildings and the Plaintiff's were
sufficient to induce him to refrain from granting an injunction
in a case where, if the buildings had not been erected, he
would have granted the injunction. If that is so, and if those
considerations are to weigh with the Court upon the question
of damages or injunction, I ought not to allow the Defendant
to proceed with his building, which will put him in such an
advantageous position as regards the Plaintiffs when the
case comes to a hearing". To the same effect is the decision
in Newson v. Pender [ ???] . In the case before us,
therefore, primâ facie, the Defendants should not be allowed
to proceed to complete the building which they have erected.
Rut the case for the Plaintiffs is materially strengthened
when we bear in mind the conduct of the Defendants. The
Court of first instance found that there was good reason to
hold that a substantial portion of the building had been
erected after the Defendants had become aware of the
institution of this suit and of the application for temporary
injunction. In a case of this description, the Court would, if
necessary, proceed not only to grant a temporary injunction
restraining the further erection of the building, but also to
direct that the building already erected be taken down.
In Daniel v. Ferguson [[1891] 2 Ch. 27.] , the „Plaintiff filed a
suit for an injunction restraining the Defendant from building
so as to obstruct his ancient light and gave notice of motion
for an interim injunction. The Defendant, thereupon, working
day and night, ran up the wall to a height of 40 ft. Mr.
Justice Sitrling granted an injunction restraining future
building and ordering the removal of the wall, and this order
was confirmed on appeal. Similarly, in the case of Von
Jaol v. Hornby [[1895] 2 Ch. 774.] , when the Defendant had
evaded notice of the writ in the action and continued to build
until substituted service was effected, a temporay injunction
was granted ordering the Defendant to pull down all that
had been built since the Plaintiff had warned him of his
intention to bring an action. In the case before us, the
Plaintiffs did not invite the Court to direct the Defendant to
take down so much of the building as had been erected after
the 6th June, 1913: they simply ask that the Defendants
should be restrained from proceeding with the building any
further. In our opinion, upon the merits of the case, there is
no room for controversy that the order made by the
Subordinate Judge cannot possibly be supported. The only
question for consideration is whether this Court is competent
to interfere in the exercise of its revisional jurisdiction. We do
not feel pressed by the objection suggesed, because
obviously it is competent to this Court to interfere under sec.
15 of the Charter Act: and in view of the conduct of the
Defendants which, in substance, amounts to a defiance of
the authority of the Court, we are of opinion that this is a
case in which ample ground has been made out to justify our
interference.
The result is that this Rule is made absolute, the order of the
Subordinate Judge discharged and that of the Court of first
instance restored. The Petitioners are entitled to the costs of
these proceedings in all the Courts."
16. Mr. Mukherjee has further relied on a case of Parimal
De vs. Anita Agarwal and others reported in (2014) 4 ICC
171 wherein Hon'ble Court observed that any construction
made on the base portion of the land in excess of share , the
Court should protect the interest of other co-sharer by the
order of injunction.
17. Mr. Mukherjee also relied on an unreported judgment in
FMA 2446 of 2015 passed on 10.08.2015 wherein Hon'ble
Division bench observed as flows:-
"So long as the property remains joined, no share holder has
any right to nature and character of the suit property. If any
share holder is allowed to change the nature and character
of the suit property ultimately the relief which the co-shares
deserve in t eh said partition suit, may not be ultimately
granted to them."
18. Mr. Mukherjee has further referred to a case of Home
care retail Marks Pvt. Ltd. Vs. New Era Fabrics Limited
reported (2009) 17 SCC page 429 wherein Hon'ble Apex
Court ruled as follows:-
" 4. On a thorough reading of the judgment of the High Court
which is under challenge before this Court and also the
orders of the courts below, it can be said that there is some
arguable point to be gone into for the purpose of deciding
whether the plaintiff/appellant is entitled to an order of
injunction restraining the respondent from interfering with
the access to the said premises from the Mogul Lane side by
the appellant and its customers in addition to the gate on the
other side of its Hypermarket. Since this is a question to be
gone into on evidence at the time of trial and in view of the
fact that the plaintiff/appellant and their customers were
using the said entry from Mogul Lane to the Hypermarket, we
are of the view that at this stage, the High Court was not
justified in exercising its power under Article 227 of the
Constitution to set aside the concurrent orders of the Courts
below which by any means cannot be said to be perverse or
arbitrary."
19. The fact divulged in forgoing paragraphs makes it clear
that the legal heirs of Sadek Ali transferred entire 11 decimals
of land of the plot in dispute, to the petitioners/defendants in
the year 2011 as Sadek Ali purchased entire land of the plot in
question in the year 1973, from the co-sharer of the plot
having 5/6th share only.
20. In terms of facts pleaded inclusive of argument advanced
I have to resolve following issues:-
A. Two deeds for the year 1973 & 2011 remained unchallenged
in the suit filed by the plaintiffs.
B. Defendants title over the entire land of suit plot inclusive of
share of the plaintiff has been perfected by way of adverse
possession because of the knowledge of the plaintiffs
regarding the deed executed in the year 1973.
C. Substantial portion of the building i.e. G+5 has come up at
the instance of the defendants on the purchased plot in
question.
21. I am not oblivious of the fact that I am dealing with an
order of ad interim injunction and to add to that injunction
petition under Order 39 Rule 1 & 2 of Code of Civil Procedure
is awaiting for adjudication by the Learned Trial Court. I am
also not oblivious of the fact that the petitioners/defendants
chose to pry into the long track of 'appeal' in terms of ratio
decidendi in Bengal Club (supra) overruling the ratio of
Jitesh Pandey (supra) prescribing short rout of vacating ad
interim injunction through Provision of order 39 rule 4 of the
Code of Civil procedure. From that point of view reliance of
Jitesh Pandey (supra) by the learned appellate court was not
correct.
Issue No. A:-
22. Tone and tenor of the argument advanced by Mr.
Chatterjee is that opposite parties/ plaintiffs ought to have
made consequential relief of cancellation of those two deeds,
resulting to dismissal of suit in terms of Provision of Section
34 of the Specific Relief Act.
23. From the pleadings of the parties to this revision
application it appears that vendors of the two deeds for the
year 1973 and 2011 had no right, title ad interim beyond 5/6th
share of the suit plot. Therefore, transfer of 1/6 th share of
opposite parties/plaintiffs cannot be said to be valid rather
void ad initio. Alternatively, dismissal of suit cannot be
contemplated at this stage restricting the right of the opposite
parties/plaintiffs to include consequential relief by way of
amendment.
Issue No. B:-
24. I am dealing with an order of ad interim injunction
promulgated in a suit for partition. The pleas based on title
and adverse possession are mutually inconsistence and the
later does not begin to operate until the former is renounced.
Animus possidendi is a requisite ingredient of adverse
possession. Mere possession of the land will not ripen into
possessory title for the said purpose. Possessor must have
animus possidendi and hold the land adverse to the title of the
true owner. For the said purpose not only animus possidendi
must be shown to exist but the same must be shown to exist
at the commencement of the possession. He must continue in
the said capacity for the period prescribed by Limitation Act.
Mere long possession for a period of more than 12 years
without anything does not ripen into a title. And to add to that
possession of other co-owners/co-sharers can be said to be
holding the entire property for and on behalf of other co-
owners/co-sharers till ouster is pleaded and proved. In the
case in hand, at this nascent stage, question of proving
"animus possidendi" and "ouster" does not arise even
injunction application under Order 39 rule 1& 2 of the Code of
Civil procedure is still awaiting for disposal.
Issue No. C:-
25. Mr. Chatterjee strenuously contended that G+5
construction already came up and further construction cannot
be halted by any order of ad-interim injunction which was
obtained by suppression of fact of construction. Mr.
Chatterjee, in support of his submission, relied on Mandali
Ranganna (supra) where Hon'ble Apex Court dealt with a
different facts in disposing an appeal in connection with
application under Order 39 Rule 1 & 2 of the Code of Civil
Procedure unlike that of ours.
26. In the case in hand co-owners/ co-sharers having title
over 5/6th share of the suit plot sold out entire plot including
1/6th share of other co-sharer. It is also not the case of the
petitioners/defendants that construction came up on 5/6th
share of the suit plot only.
27. Having regard to the aforesaid facts and situation, I am
unable to interfere with the concurrent findings of the Learned
Trial Court and Learned Appellate Court while injunction
application under Order 39 Rule 1& 2 of the Code of Civil
Procedure is still pending for disposal, where parties are at
liberty to raise all issues.
28. Thus, application under Article 227 of the Constitution of
India stands dismissed without any order as to costs.
29. Learned Trial Judge is requested to dispose of the
injunction petition within six weeks from the date of
communication of the order, without being influenced by this
order.
30. All parties to this revisional application shall act on the
server copy of this order downloaded from the official website
of this Court.
31. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]
