Jharkhand High Court
Smt. Manju Rani Bhattacharjee vs Mahadeb Dutta on 18 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 924 of 2024
1. Smt. Manju Rani Bhattacharjee, aged about 84
years, wife of Late Anil Bhattacharjee,
2. Barun Bhattacharjee, aged about 60 years, son of
Late Anil Bhattacharjee
3. Chandan Bhattacharjee, aged about 58 years, son
of Late Anil Bhattacharjee,
4. Ajay Bhattacharjee, aged about 55 years, son of
Late Anil Bhattacharjee,
5. Gopal Bhattacharjee, aged about 53 years, son of
Late Anil Bhattacharjee,
6. Hrishikesh Bhattacharjee, aged about 50 years,
son of Late Anil Bhattacharjee,
7. Smt. Archana Bhattacharjee, aged about 62 years,
wife of Late Bhobotosh Bhattacharjee,
8. Nabin Bhattacharjee, aged about 39 years, son of
Late Bhobotosh Bhattacharjee,
9. Avijit Bhattacharjee, aged about 37 years, son of
Late Bhobotosh Bhattacharjee,
10. Tanushree Bhattacharjee, aged about 58 years,
widow of Late Ranjit Bhattacharjee,
11. Krishnaendu Bhattacharjee, aged about 34
years, son of Late Ranjit Bhattacharjee
All are at present resident of 12 Pathuriaghata
Street, Kolkata, 6, P.O. Bedion Street, P.S
Jorabagan, District Kolkata, Pin-700006, West
Bengal.
At permanent resident of village- Sitakata,
Karmatarn Pindary), P.O.-Karmatarn, P.S.-
Karmatarn, District Jamtara, Jharkhand.
..... ... Petitioners
Versus
1. Mahadeb Dutta, son of Late Gobind Chandra
Dutta,
-1-
2. Haradhan Dutta, son of Late Sudhir Chandra
Dutta,
3. Narayan Chandra Dutta, son of Krishna Dutta,
4. Shyama Dutta, son of Late Sudhir Chandra Dutta,
5. Anil Dutta, son of Late Gobind Chandra Dutta,
Sl. No. 1 to 5 all are resident of village-
Sitakata, P.O. Karmtarn, P.S. Karmtarn District
Jamtara, Jharkhand.
6. Uday Yadav, son of Late Ramjee Yadav, resident
of village- Sitakata, Post Karmatarn, P.S-
Karmatarn, District Jamtara, Jharkhand.
7. Raju Mandal, son of Late Jhala Mandal, resident
of village- Sitakata, Post- Karmatarn, Dewalbari,
P.S.-Karmatarn, District Jamtara, Jharkhand.
8. Sanjay Gupta, son of Late Shital Gupta, resident
of village-Sitakata, Post-Karmatarn, P.S.-
Karmatarn, District Jamtara.
9. Guljar Mandal, son of Late Madan Mandal, by
caste-Hindu, resident of village Sitakata, Post-
Karmatarn, P.S.- Karmatarn, District Jamtara,
Jharkhand.
10. Rijwan Mian, son of Late Jamshed Mian,
resident of Gulshan Bastralay, Karmatarn, Karon
Road, P.O. Karamtarn, Jharkhand. P.S.-Karmatarn,
District-Jamtara,
11. Md. Mannan Ansari, son of Late Jamshed Mian,
resident of village- Sitakata (Pindari), Post-
Karmatarn, P.S.- Karmatarn, District Jamtara,
Jharkhand.
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioners : Mr. Indrajit Sinha, Advocate.
: Mr. Abhijit Ray, Advocate.
: Mrs. Sipra Bhattacharjee
: Mr. Ankit Vishal, Advocate
: Ms. Aditee Dongrawat, Advocate.
For the O.P. Nos. 1 to 5 & 7 to 9 : Mr. Chandrajit Mukherjee, Advocate.
: Mr. Preetam Mandal, Advocate.
For the O.P. Nos. 10 & 11: Mr. N.P. Choudhary, Advocate.
------
09/ 18.03.2025 Heard Mr. Indrajit Sinha, learned counsel appearing for the
petitioners, Mr. Chandrajit Mukherjee, learned counsel appearing for
the O.P. Nos. 1 to 5 and 7 to 9 and Mr. N.P. Choudhary, learned counsel
appearing for the O.P. Nos. 10 and 11.
2. This petition has been filed under Article 227 of the
Constitution of India, wherein prayer has been made for setting aside
the order dated 01.08.2024, passed in Civil Appeal No. 30 of 2023, by
the learned Principal District Judge, Jamtara, whereby, the appeal filed
by the petitioners has been dismissed and the learned appellate court
has upheld the order dated 19.09.2023, passed in Original Suit No. 57
of 2023. Prayer is also made for setting aside the order dated
19.09.2023, passed in M.C.A. No. 41 of 2023 [arising out of Original
Suit No. 57 of 2023] by the learned Civil Judge, (Sr. Div.)-I, Jamtara.
3. Mr. Indrajit Sinha, learned counsel appearing for the
petitioners submits that Original Suit No. 57 of 2023 has been instituted
for declaration of the right, title and interest and also for cancellation of
the sale deed. He submits that the issue in the said suit is that one Atanu
Nandan Tagore was the younger brother of the great Rabindra Nath
Tagore. Atanu Nandan Tagore was married with Akshey Kumari Devi.
Atanu Nandan Tagore though resident of proper Kolkata, but he has got
properties in different places. The said Atanu Nandan Tagore died on
25.06.1914. Before his death Atanu Nandan Tagore has executed a Will
which was presented for probate in the Hon'ble High Court at Kolkata
and the said case is registered as Probate Case No. 1046 of 1920. As per
the terms and condition of the said Will, Smt. Sarla Sundari Devi and
Ashutos Bandhopadhyay were the Executants of the will. The matter
was subsequently compromised and the Executants were Ordered by
the Hon'ble High Court to hand over the entire estate of Late Atanu
Nandan Tagore in favour of his widow Akshey Kumari Devi. He further
submits that it was the desire of Late Atanu Nandan Tagore that some
Temple be constructed in the name of his grandfather at Bishwanath
Kashi Dham and a "Shivalinga" may be installed and a Temple may be
created in the name of Sarda Sundari Devi, in view of that and in order
to fulfill and complete the last wish of Atanu Nandan Tagore, his
widow Smt. Akshey Kumari Devi has not adopted any one, rather to
manage the properties as well as place of worships in different places
has created a trust on 14th December, 1934 through a Register deed and
the said Askhey Kumari Devi had appointed her two younger brothers
Haradhan Gangopadhyay alias Haradhan Bhattacharjee and Tarapada
Gangopadhyay alias Tarapada Bhattacharjee as the trustee to look after
the asset of her deceased husband and also appointed her two brothers
as Shebait of the Debattar properties of all places.
4. Learned counsel appearing for the petitioners submits that
in the Trust deed it was expressly mentioned that on her death, her two
brothers will look after Shree Shree Shardey Sharshivalingajew and as
Shebait her two brothers will look after the Debattar properties and the
regular worship of the Shivalinga. It was also mentioned in the said
instrument that on the death of the aforesaid two brothers of Askhey
Kumari Devi, their legal heirs or descendants will continue as Shebait
of the God / Goddess all through and the name of Late Askhey Kumari
Devi has also been recorded in the Khatian. In these backgrounds, he
submits that the suit was instituted, in which, a petition under Order-
XXXIX Rules- 1 and 2 of the CPC was filed before the learned court
and the learned court has been pleased to reject the same by the order
dated 19.09.2023, which was appealed before the learned appellate
court in Civil Appeal No. 30 of 2023 and the learned appellate court by
the order dated 01.08.2024 has been pleased to reject the same.
5. Learned counsel further submits that the occasion of filing
the said petition has emerged that the opposite parties herein are tried to
change the nature of the suit, as in the suit property, constructions are
being made on behalf of opposite parties. He submits that prima facie
case, balance of convenience and irreparable loss have already been
shown before the learned court, in spite of that the learned courts have
been pleased to reject the same, as such, both the orders may kindly be
set aside. To buttress his argument, he relied in the case of Maharwal
Khewaji Trust (Regd.), Faridkot, Versus Baldev Dass, reported in AIR
2005 SC 104 and he refers para-10 of the said judgment, which reads as
under:-
"10. Be that as it may, Mr. Sachhar is right
in contending that unless and untill a case of
irreparable loss or damage is made out by a
party to the suit, the court should not permit
the nature of the property being changed
which also includes alienation or transfer of
the property which may lead to loss or
damage being caused to the party who may
ultimately succeed and may further lead to
multiplicity of proceedings. In the instant
case no such case of irreparable loss is
made out except contending that the legal
proceedings are likely to take a long time,
therefore, the respondent should be
permitted to put the scheduled property to
better use. We do not think in the facts and
circumstances of this case, the lower
appellate court and the High Court were
justified in permitting the respondent to
change the nature of property by putting up
construction as also by permitting the
alienation of the property, whatever may be
the condition on which the same is done. In
the event of the appellant's claim being
found baseless ultimately, it is always open
to the respondent to claim damages or, in an
appropriate case, the court may itself award
damages for the loss suffered, if any, in this
regard. Since the facts of this case do not
make out any extraordinary ground for
permitting the respondent to put up
construction and alienate the same, we think
both the courts below, namely, the lower
appellate court and the High Court erred in
making the impugned orders. The said
orders are set aside and the order of the trial
court is restored."
6. Relying on the above judgment, he submits that once the
nature of the suit property will be changed, the petitioners will be put to
irreparable loss, in view of that, both the impugned orders may kindly
be set aside.
7. On the other hand, Mr. Chandrajit Mukherjee, learned
counsel appearing for the O.P. Nos. 1 to 5 and 7 to 9 has opposed the
prayer and submits that the learned trial court as well as the learned
appellate court has given the cogent reason of rejecting the said
petition. He submits that the materials have come before the court that
the buildings were constructed 35 years, 53 years ago and some of them
were constructed 12 years, 15 years and 10 years back and considering
all these aspects, the learned court has passed the order. He further
submits that the suit has been instituted in the year 2023, wherein the
buildings were already existing earlier and the opposite parties are in
possession of the said property. He also submits that no constructions
are being made. He submits that the counter affidavit has been filed,
wherein photographs have been attached, which clearly suggests that
the buildings are already existing, prior to institution of the suit and at
present no construction is being made. He then submits that even the
prima facie case of stay has not been made out by the petitioners herein,
in view of that the learned courts have rightly passed the order.
8. Mr. N.P. Choudhary, learned counsel appearing for the O.P.
Nos. 10 and 11 has adopted the arguments of Mr. Mukherjee and
submits that no constructions have been made on behalf of O.P. Nos. 10
and 11, who are the defendants in the original suit.
9. In view of the above submissions of the learned counsel
appearing for the respective parties, it is well settled that a petition to be
decided under Order-XXXIX Rules-1 and 2 CPC, the person, who is
claiming the interim order, required to prove the prima facie case, the
balance of convenience and irreparable loss will be caused, if the said
prayer is not allowed.
10. In para-9 of the judgment of the learned appellate court, it
has come that the pleader commissioner has submitted his report that on
plot No. 624, area 8 decimal over which, a temple has been constructed
about 35 years ago, as stated by the villagers. On plot No. 623 is
surrounded by boundary wall over which forest department has
constructed three buildings and the said boundary was built about 95
years ago as stated by the villagers and first building was constructed
53 years ago, second building was constructed 12 years ago and third
building as constructed 6 years ago. On which some trees were planted
and key of the room were kept by the Forest Department. Plot No. 621
surrounded by three sides in which one well and 9 feet width and 185
feet long PCC road was constructed about 10 years ago and several
trees were planted. It has been further disclosed that Plot No. 652
having an area of 02 decimal over which one toilet with Asbestos roof
has been constructed about 14 years ago and 04 decimals of land some
palash tree was grown and the said land is in possession of Smt. Pushpa
Dubey wife of Anil Kumar Dubey. Plot no. 652 having an area of 04
decimals, over which, one building was constructed by Sanjay Kumar
Gupta, who is O.P. No. 8 about 14 years ago. Likewise how the further
constructions were made on the other plots have also been disclosed
therein and all are about 14 years, 5 years, 6 years and more than 95
years and 53 years back, wherein the suit in question has only been
instituted in the year 2023.
11. The photographs, annexed with the counter affidavit,
suggests that the buildings in questions have already been existed and
nothing has been disclosed in the petition, filed by the learned counsel
appearing for the petitioners that now the constructions are going on
and nature of the plots are being changed by the opposite parties. The
learned court has further found that the defendants have been able to
show their possession and their names mutated in the records of right
and on the other hand, the petitioners/plaintiffs have miserably failed to
produce any chit of paper to show their right, title, interest and
possession over the suit land. Even the plot number, area, in which, the
allegedly the defendants encroached in the suit land have not been
disclosed by the plaintiff/petitioners before the learned court and in that
view of the matter, the learned court has passed the said order.
12. It is crystal clear that the petitioners themselves are not
clear that on which plot, any construction is made and further no chit of
paper has been produced about the right, title and interest before the
learned court.
14. In view of the above facts, the learned courts have passed
the orders, and this court finds that three ingredients of allowing the
petition under Order-XXXIX, Rules-1 and 2 CPC is not made out
and further this court has not found any illegality in the
impugned orders. As such, this petition is dismissed.
15. Further the learned appellate court has observed that this
order will not prejudice the interest of either of the parties, in view of
that the trial will proceed in accordance with law and the parties are put
at liberty to take all their endeavour for early disposal of the suit.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
