Patna High Court
Altamish @ Monu vs Aasiya Khatoon on 11 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.994 of 2018
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Altamish @ Monu S/o Md. Zamir, Resident of Elamram Chaukganj No - 2,
P.O./P.S. - Bettia, District - West Champaran.
... ... Petitioner/s
Versus
1.1. Md. Tarique (Son) S/o Late Aasiya Khatoon, Permanent address at illam ram
chowk, ganj no.2, Bettiah, West Champaran - 845438.
1.2. Aamir Arafat (Son), S/o Late Aasiya Khatoon, Permanent address at illam
ram chowk, ganj no.2, Bettiah, West Champaran - 845438.
1.3. Yasmin Parween (daughter), D/o Late Aasiya Khatoon, Permanent address at
illam ram chowk, ganj no.2, Bettiah, West Champaran - 845438.
1.4. Rumana Khatoon (daughter) D/o Late Aasiya Khatoon, Permanent address
at illam ram chowk, ganj no.2, Bettiah, West Champaran - 845438.
1.5. Shabana Khatoon (daughter), D/O Late Aasiya Khatoon, Permanent address
at illam ram chowk, ganj no.2, Bettiah, West Champaran - 845438.
2. Md. Zamir, S/o Late Md. Mansoor Resident of Muhalla - Ganj No - 2,
Bettiah, Ellamram Chauk, P.O. and P.S. - Bettiah Nagar, District - West
Champaran.
3. Manisha D/o Late Md. Mansoor, Resident of Muhalla - Ganj No - 2, Bettiah,
Ellamram Chauk, P.O. and P.S. - Bettiah Nagar, District - West Champaran.
4. Samima Khatoon, W/o - Md. Aurangzeb Khan, Resident of Muhalla - Ganj
No - 2, Bettiah, Ellamram Chauk, P.O. and P.S. - Bettiah Nagar, District -
West Champaran.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. H. P. Singh, Sr. Advocate
Mr. Rakesh Chandra, Advocate
For the Respondent/s : Md. Abu Haidar, Advocate
Md. Abu Shajar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 11-01-2024
The petitioner has filed the instant petition for
quashing the order dated 05.01.2018, passed in Title Suit No.
381 of 2013 by which the learned Sub-Judge-III, Bettiah, West
Champaran has rejected the petition filed by the
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
2/11
defendant/petitioner under Section 151 of the Code of Civil
Procedure (hereinafter 'CPC') for restoration of possession over
the suit land, as the petitioner/defendants was forcibly
dispossessed by plaintiff/respondent no. 1.
02. Briefly stated the case of the petitioner is that the
original plaintiff/respondent no. 1 filed Title Suit No. 381 of
2013 for declaration of her title on the basis of sale deed over
the schedule-1 of the plaint and also for order of ejectment of
defendants-1st set. Petitioner is defendant no. 2 and his father
was defendant no. 1, both contesting defendants-1st set. The
plaintiff claimed that suit land is the ancestral and purchased
land and defendants-1st set has encroached upon some portion
of the purchased land of the plaintiff. The land was purchased in
the year 2012 by the plaintiff/respondent no. 1. The defendants
1st set appeared and submitted that the suit land is ancestral land
of the parties and was amicably partitioned on 15.03.1996, a
memorandum of partition was also prepared, which was duly
signed by the parties and jamabandi no. 1985 was created in
their names for an area of 14 dhurs. Out of the said land of 14
dhurs, defendant no. 1 sold 03 dhurs and 12 dhurki to one S.
Baburao and remaining 10 dhurs and 08 dhurki land remained
in possession of the defendant/petitioner and his house is
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
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standing there and Municipal holding was also created.
Defendant no. 4 filed his separate written statement supporting
the case of the plaintiff/respondent no. 1. Thereafter, on
06.06.2017
, the defendant/petitioner filed a petition under
Section 151 of the CPC mentioning that on 14.04.2017, the
plaintiff broke the lock of his house and forcibly dispossessed
this defendant who was residing at Delhi for the purpose of
treatment of his father, although the possession of the
defendants-1st set was admitted as relief for ejectment of
defendents-1st set has been sought in the plaint. Admittedly,
defendant was in peaceful possession and without any lawful
order, the plaintiff and her sons dispossessed him and took
forcible possession and for the said purpose Bettiah P.S. Case
No. 279 of 2017 was instituted and charge-sheet has been
submitted against the plaintiff/respondent no. 1. This application
was opposed by the plaintiff/respondent no. 1, who filed her
rejoinder on 24.07.2017 trying to justify the action of
dispossession on the ground that the allegation petition was not
verified and supported by affidavit and also on the ground that
the petition was beyond the ambit of CPC. The
plaintiffs/respondents further claimed that the police case was
false. The learned court below rejected the prayer made by the
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
defendant/petitioner vide impugned order dated 05.01.2018 on
the ground that the defendant has not filed any counter claim in
his written statement and also that the petition under Section
151 of CPC was not maintainable, if there is specific provision
in the CPC. The learned trial court further held that the facts
placed by the defendant/petitioner cannot be adjudicated
without taking evidence.
03. Learned counsel appearing on behalf of the
petitioner submitted that the learned trial court has miserably
failed to consider that no person can be deprived of his property
except through the process of the Court and in the instant case,
when it was the admitted case of the plaintiff that the defendant
was in possession and if the defendant/petitioner has been
dispossessed, the learned court below was duty bound to restore
his possession. Learned counsel further submitted that the
learned trial court has held that as the defendant has not filed
any counter claim but admittedly, the plaintiff and the
defendants have their residential houses over the suit property.
As per the case of plaintiff/respondent no. 1, the defendant has
encroached upon certain portion of his purchased land and the
same has been denied by the defendant. So, the issue is yet to be
decided by the learned court below and the parties have to stand
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
on their own legs. But ignoring the said fact, the petition has
been rejected. The learned trial court further committed an error
when it held that petition under Section 151 of CPC is not
maintainable, as there is specific provision in the CPC, but CPC
is silent on this point and in such type of situation only a prayer
for mandatory injunction can be made and hence prayer for
restoration of possession has been rightly made under Section
151 of C.P.C. Learned counsel for the petitioner relied on the
decision of the Hon'ble Supreme Court in the case of Sushil
Kumar Dey Biswas & Anr vs Anil Kumar Dey Biswas & Anr
(Civil Appeal No. 10689 of 2014), reported in (2015) 3 SCC
461, submitting that the facts of the present case are similar to
the case before the Hon'ble Supreme Court, wherein the
respondent/plaintiff dispossessed the appellant/defendant from
premises. Though it was admitted that the defendant was having
possession of certain portion of the suit property and the
application under Section 151 of the CPC was filed for
restoration of possession, which was rejected by the learned
appellate court as well as High Court. But the Hon'ble Supreme
Court allowed the appeal and directed the respondent/plaintiff to
restore the possession of the appellant/defendant. Learned
counsel also relied on the decision of Hon'ble Supreme Court in
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
the case of Meera Chauhan v. Harsh Bishnoi, reported in
(2007) 12 SCC 201 : 2006 SCC OnLine SC 1399 at page 204,
submitting that the facts of this case were also similar to the
facts of the present case and the Hon'ble Supreme Court held
that an application under Section 151 CPC can be entertained in
the given facts of the case and the power under Section 151 to
pass order of injunction in the form of restoration of possession
is no more res integra. Thus, learned counsel submitted that the
order of the learned trial court is not in accordance with law and
has been passed in a mechanical manner. Hence, the impugned
order be quashed.
04. On the other hand, learned counsel for the
respondent first party, vehemently opposed the contention of the
learned counsel for the petitioner. Learned counsel for the
respondent no. 1 submits that the learned court below has
rightly rejected the application under Section 151 of the CPC as
not maintainable. The defendant has tried to make out a case on
wrong facts and due to previous enmity. Because in earlier
round of litigation, the learned Sub. Judge-III, Bettiah, West
Champaran in Title Suit No. 222 of 2010 filed by the father of
the petitioner against original respondent no. 1, has dismissed
the suit with cost vide decree dated 10.06.2015. Further, police
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
did not submit charge-sheet against original respondent no. 1
and exonerated her from all charges though against her sons
charge-sheet has been submitted under Section 448 of the IPC
on 17.05.2017. Learned counsel relied on a decision of the
Hon'ble Apex Court in the case of My Palace Mutually Aided
Co-operative Society Vs. B. Mahesh and Ors, (Civil Appeal
No. 5784 of 2022) decided on 23.08.2022, reported in 2022
SCC OnLine SC 1063 on the point that Section 151 of the CPC
can only be applicable if there is no alternate remedy available
in accordance with the existing provisions of law. Such inherent
power cannot override statutory prohibitions or create remedies
which are not contemplated under this Code. It is crystal clear
from the decisions of the Hon'ble Supreme Court that the
application under Section 151 of C.P.C. filed by the petitioner
before the court below was not maintainable as alternative
remedy under Section 6 of the Specific Relief Act is available to
the petitioner and Section 151 cannot be invoked as an
alternative to filing fresh suits, appeals, revisions, or reviews.
Therefore, the learned court below rightly came to the
conclusion that the application under Section 151 C.P.C. is not
maintainable. The impugned order doe not need any interference
and the same needs to be sustained in view of the settled
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
propositions of law. Learned counsel further submitted that the
decision relied by the petitioner in the case of Sushil Kumar
Dey Biswas (supra) is not applicable in the present case since
the said order was passed in an eviction case.
05. I have given my thoughtful consideration to
different aspects of the matter. The authority cited by the
plaintiffs/respondents in the case of My Palace Mutually Aided
Co-operative Society Vs. B. Mahesh and Ors. (supra) is
pronouncement of general principles governing application of
Section 151 of the CPC. Now, when it is the admitted case of
the plaintiffs/respondents that the defendant/petitioner was in
the possession of the suit property and there is further admission
about the dispossession of the defendant, equity demands that
the defendant is not forced to further litigate in the matter and
the defendant should be put into possession of the area from
which he has been dispossessed. It is immaterial that the petition
seeking repossession has been filed under Section 151 of the
CPC and the Hon'ble Supreme Court in the case of Meera
Chauhan (supra) has held that the issue is not res integra
anymore. Paragraph nos. 15, 16 and 17 are reproduced for
reference:-
"15. On a bare perusal of Section 151 of
the Code of Civil Procedure, it cannot be said to
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
be in dispute that Section 151 confers wide
powers on the court to make such orders as may
be necessary for the ends of justice or to prevent
abuse of the process of the court.
16. The power of Section 151 to pass
order of injunction in the form of restoration of
possession of the code is not res integra now.
17. In Manohar Lal Chopra v. Rai
Bahadur Rao Raja Seth Hiralal [AIR 1962 SC
527 : 1963 All LJ 169] while dealing with the
power of the court to pass orders for the ends of
justice or to prevent the abuse of the process of
the court, this Court held that the courts have
inherent jurisdiction to issue temporary order of
injunction in the circumstances which are not
covered under the provisions of Order 39 of the
Code of Civil Procedure. However, it was held
by this Court in the aforesaid decision that the
inherent power under Section 151 of the Code of
Civil Procedure must be exercised only in
exceptional circumstances for which the Code
lays down no procedure."
06. Moreover, the plaintiffs cannot take advantage of
their own wrong and the defendant could not be relegated to
seek remedy under Section 6 of the Specific Reliefs Act, 1963.
Admittedly, the suit has been filed seeking ejectment of the
defendant from the portion of suit property described in
schedule-1 of the plaint. So whatever is the admitted position in
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
the plaint about the possession of the defendant and whether the
defendant/petitioner has been dispossessed either in the whole
or in part of his premises, the plaintiffs are bound to restitute
him in the said area. It hardly matters that this is not a suit for
eviction claiming landlord and tenant relationship. Facts of the
case of the petitioner is quite similar to the decision cited on
behalf of petitioner/defendant in the case of Sushil Kumar Dey
Biswas (supra).
07. In view of the aforesaid discussions, I am of the
considered opinion that the defendant/petitioner is entitled for
restoration of his possession on the admitted portion of the suit
property and the learned court below committed an error when it
rejected the prayer for restoration of possession filed on behalf
of the defendant/petitioner and did not exercise the jurisdiction
vested in it.
08. In the result, the impugned order of the learned
trial court dated 05.01.2018, passed in Title Suit No. 381 of
2013 by the learned Sub-Judge-III, Bettiah, West Champaran is
set aside and the instant Civil Misc. petition is allowed.
09. The plaintiffs/respondents are directed to restore
the possession of the defendant/petitioner in the admitted
portion of the suit property from which he has been
Patna High Court C.Misc. No.994 of 2018 dt.11-01-2024
dispossessed within three weeks from the date of
receipt/production of a copy of this order. If the order is not
complied within the stipulated period, the defendant/petitioner is
at liberty to move before the learned trial court seeking
enforcement of the order of this Court.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR
CAV DATE 19-12-2023
Uploading Date 11-01-2024
Transmission Date N/A
