Jharkhand High Court
Sanjay Tanuk vs Mrs. Mallika Asher on 22 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
M.A. No. 105 of 2022
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Sanjay Tanuk, son of Late G.N. Tanuk aged about 56 years,
Proprietor of M.S. Tanuk Brothers at Shop No.5, 6 and 27 resident
of Laxmi Mansion, Main Road Bistupur, PO and PS - Bistupur Town,
Jamshedpur, District - Singhbhum East, Jharkhand
.... Appellant
-- Versus --
1. Mrs. Mallika Asher, wife of Late Hemendra Laxmi Das Asher
2. Smt. Lajja Dugar daughter of Late Hemendra Laxmi Das
3. Smt. Mamta Basu daughter of Late Hemendra Laxmi Das, All are
resident of Flat No.8B, Kanchanjanga Apartment 5B, Robinson
Street, PO - Rowdon Street, PS - Rowdon Street, District - Kolkata
4. Sukhdev Mahato, son of Sri Shambhu Mahto resident of House No.46,
Sangam Vihar, Sonari PO and PS - Sonari Jamshedpur, East
Singhbhum, Jharkhand .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant :- Mr. Amar Kr. Sinha, Advocate
:- Mr. Sandeep Verma, Advocate
For Respondent Nos.1 to 3 :- Mr. Prashant Pallav, Advocate
For Respondent No.4 :- Mr. K. Hari, Advocate
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12/22.01.2025 Heard Mr. Amar Kr. Sinha along with Mr. Sandeep Verma, learned
counsels appearing for the appellant, Mr. Prashant Pallav, learned counsel
appearing for the respondent Nos.1 to 3 and Mr. K. Hari, learned counsel
appearing for the respondent No.4
2. This appeal is preferred under Order 43 Rule 1(r) of Code of Civil
Procedure against the judgment and order dated 11.03.2022 passed by
learned Civil Judge (Sr. Division-I), Jamshedpur in Original Title Suit
No.13 of 2021 by which the learned Court has rejected the petition under
Order 39 Rule 1 and 2 of Civil Procedure Code wherein the prayer was
made for temporary injunction.
3. Mr. Amar Kumar Sinha, learned counsel appearing for the
appellant submits that the plaintiff namely Sanjay Tanuk filed Original
Title Suit No.13 of 2021 against the defendants praying therein a decree
for declaration that the plaintiff has legal possession over the suit
premises on ownership basis along with a roof right and for permanent
injunction restraining the defendants from interfering the plaintiff in any
manner in respect of plaintiff's possession and interest over the suit
property. He further submits that the plaintiff is in peaceful possession of
Shop No.5, 6 and 27 at Laxmi Mansion, Main Road, Bistupur Jamshedpur
where he runs his business in the name and style of M/s Taunk Brothers
since very long. He then submits that earlier the plaintiff was the tenant
under Late Hemendra Laxmi Das Asher, and Smt. Mallika Asher
(defendant No.1) in respect of said shop No.5, 6 and 27 which is the
subject matter of the suit and by a written instrument dated 20.02.2015
said Hemendra Laxmi Das Asher and his wife Smt. Mallika Asher
transferred the ownership of said three shops to the plaintiff. In this
background, he submits that Order 39 Rule 1 and 2 of Civil Procedure
Code, the petition was filed for temporary injunction before the learned
Court which has been erroneously rejected. He draws the attention of the
Court to para 11 of the written instrument of the defendant and submits
that the possession has been admitted therein and if a possession is
admitted the appellant is having a strong prima facie case. He further
draws the attention of the Court to the averments made in the said
petition and submits that there is threat of dispossession and in view of
that he submits that the learned Court has wrongly passed the order. On
these grounds, he submits that the said order may kindly be set aside
and temporary injunction may kindly be allowed in favour of the
petitioner, who is the plaintiff.
4. Per contra, Mr. Prashant Pallav, learned counsel appearing for
the respondent Nos.1 to 3 submits that the learned Court has rightly
dismissed the said petition considering that on the basis of title the
possession is sought to be declared at the same time the rent is also said
to be paid as a tenant and is paying rent. He submits that if such a
contradictory stand is there in such a suit, the learned Court has rightly
passed the order. He draws the attention of the Court to paragraph No.2
of the plaint and submits that, the stand has been taken that the said
property was transferred wherein it is disclosed that the petitioner was
the tenant and on the written instrument this property has been
transferred to the petitioner. He further submits that in paragraph No.4
the admission is made that one another Original Suit No. 138 of 2019
filed by the plaintiff/petitioner for permanent injunction. By way of
inviting the attention of the Court to paragraph No.6 of the plaint, he
submits that another Original Suit No.112 of 2020 has been filed
challenging the power of attorney of respondent No.4. He submits that
for one property he is litigating by way of filing several petitions. On this
ground, he submits that the learned Court has rightly passed the order.
5. Learned counsel appearing for the respondent No.4, who is the
power of attorney holder of respondent No.1 to 3 has adopted the
argument of Mr. Pallav, learned counsel appearing for respondent No.1 to
3.
6. It is an admitted position that Original Suit No.13 of 2021 was
instituted by the petitioner/plaintiff for declaration of his legal right over
the suit shop on ownership basis. In paragraph No.2 of the plaint, it has
been stated that in the said property he has come in possession by way
of a tenancy and subsequently it was transferred by way of written
instrument. In paragraph No.4 of the plaint, it is disclosed that another
suit being Original Suit No.138 of 2019 has been instituted for permanent
injunction and in paragraph No.6, it is further stated that Original Suit
No.112 of 2020 has been filed challenging the power of attorney of
respondent No.4 which clearly suggests that for the said property the
petitioner has instituted three suits and claim is being made on the basis
of tenancy as well as transfer by way of written instrument and if such a
situation is there the learned Court has rightly come to the conclusion
that the stand of possession has been contradictorily taken by the
plaintiff/petitioner.
7. It is well established that an interim mandatory injunction is not
a remedy that is easily granted. It is an order that is passed only in
circumstances which are clear and the prima facie material clearly justify
a finding that the status quo has been altered by one of the parties to
the litigation and the interests of justice demanded that the status quo
ante be restored by way of an interim mandatory injunction. Further the
prima facie case by itself is not sufficient to grant injunction. The Court
further has to satisfy that non-interference by the Court would result in
"irreparable injury" to the party seeking relief and that there is no other
remedy available to the party except one to grant injunction and he
needs protection from the consequences of apprehended injury or
dispossession. Further mere possessory right does not entitle a plaintiff
to obtain the temporary injunction against a true owner, the ownership is
not established so far the property in question is concerned of the
petitioner/plaintiff. Where the property is on rent and dispute is for that
possession temporary injunction cannot be granted. A title is not proved
temporary injunction could not be granted on the basis of possession
only. Further no injunction can be issued against a lawful owner of the
property. It is further well settled that for granting injunction in terms of
interim order it would practically amount to decreeing the suit is beyond
the purview of granting interlocutory orders. Reference may be made to
the case of Rubinder Singh versus Rajasthan Financial Co. & Ors
reported in (1995) supp (2) SCC 93. In the case in hand the prayer
is made for declaration of possession and by way of allowing the decree
it will amounts to allow the main prayer itself.
8. In view of the above facts, reasons and analysis, this Court
comes to the conclusion that no case of interference is made out, as such
this appeal is dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R
