Patna High Court
Vijay Yadav@ Vijay Kumar vs Hira Ram (Expunged Vide Order Dated ... on 13 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1310 of 2019
======================================================
Vijay Yadav@ Vijay Kumar S/o Deoraj Yadav Resident of Mohalla- Parbatia
Tola, Bettiah, P.S. Bettiah (Mufasil), District- West Champaran.
... ... Petitioner/s
Versus
1. Hira Ram (Expunged vide order dated 02.07.2024) S/o Jangi Ram R/o
Village- Banuchheper, P.O. and P.S.- Bettiah(M), District- West Champaran.
2. Arun Kr. Patel S/o Raghunath Patel R/o Mohalla- Purani Gudari, Bettiah,
P.O. and P.S.- Bettiah (Town), District- West Champaran.
3. Ashish Kr. Rajgariha S/o Ashok Kr. Rajgarhia R/o Mohalla- Lal Bazar,
Bettiah, P.O. and P.S.- Bettiah (Town), District- West Champaran.
4. Bettiah Estate, under Court of Wards, through its Manager, Bettiah, P.O. and
P.S.- Bettiah (Town), District- West Champaran.
5. Badari Devi W/o Late- Ram Chandra Raut R/o Village- Khairatia, P.O. and
P.S.- Chanpatia, District- West Champaran.
6. Dudhnath Ram son of Late Binod Raut R/o Village- Khairatia, P.O. and P.S.-
Chanpatia, District- West Champaran.
7. Ashok Prasad son of Late Binod Raut R/o Village- Khairatia, P.O. and P.S.-
Chanpatia, District- West Champaran.
8. Laddu Prasad son of Late Binod Raut R/o Village- Khairatia, P.O. and P.S.-
Chanpatia, District- West Champaran.
9. Usha Devi D/o Late Binod Raut, W/o Nand Lal Raut R/o Village- Ferwa,
P.O.- Amwa, P.S.- Bettiah (M), District- West Champaran.
10. Birbal Yadav S/o Deoraj Yadav R/o Mohalla- Parbatia Tola, Bettiah, P.O.
and P.S.- Bettiah (Mufasil), District- West Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Akhileshwar Kumar Shrivastva, Advocate
For the Respondent/s : Mr.Ajay Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 13-05-2025
The petitioner has filed the instant civil miscellaneous
petition for setting aside the order dated 30.05.2019 passed by
learned District Judge, West Champaran at Bettiah in Misc.
Appeal No. 36 of 2016 which was preferred against the order
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
2/16
dated 15.06.2016 passed in Title Suit No. 44 of 1995 by learned
Sub Judge-V, West Champaran at Bettiah, whereby and
whereunder the learned appellate court affirmed the order dated
15.06.2016
passed by the learned trial court by which the
learned trial court granted mandatory injunction in favour of
plaintiff no. 3.
2. Briefly stated, the facts of the case emanating
from the record are that the plaintiffs/respondent nos. 1 & 2
instituted Title Suit No. 44 of 1995 against the defendant 1 st
set/respondent no. 4 and other defendants seeking declaration
that compromise and decree passed in Title Suit No. 33 of 1994
were illegal, collusive and have no binding effect against the
plaintiffs who are bonafide purchasers and are in possession of
the suit land. The suit land relates to Khata No. 2, Khesra No.
27M area 1 katha 5 dhurs and Khata No. 2, Khesra No. 27M
area 4 katha situated at village - Kargahia (Purvi) Peonibag,
Bettiah. The original plaintiff nos. 1 and 2 claimed that
defendants 2nd set transferred the suit land in their favour on
14.02.1983 vide registered sale deed No. 6002 for 1 katha 5
dhurs being southern portion of the suit land in favour of
plaintiff no. 2 and similarly in favour of plaintiff no. 2, 4 katha
in northern portion of the suit land through registered sale deed
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
No. 6003 on the same day and after taking consideration
amount, defendants 2nd set put the plaintiff nos. 1 and 2 in
possession over the suit land. Prior to purchase, defendant no. 1
filed Title Suit No. 105 of 1981 in the court of learned Sub
Judge, Bettiah, West Champaran against the defendants 2 nd set
and the suit was decreed against defendant no. 1 and in favour
of defendant no. 2. Thereafter, defendant 1st set preferred an
appeal vide Title Appeal No. 33 of 1994 which was
compromised and defendant 2nd set admitted title and possession
of defendant 1st set, Bettiah Estate, over the land in question.
Coming to know about the compromise in Title Appeal No. 33
of 1994, the plaintiffs have filed the present suit as a cloud
hovered over the title of the plaintiffs. Subsequently, through
amendment dated 27.02.2002, plaintiff no. 3/respondent no. 3
herein got impleaded in the suit on his own motion. The
petitioner and respondent no. 10 entered their appearance and
filed written statement jointly on 29.08.2005. On 27.02.2002, on
an application filed by plaintiff nos. 1 and 2 under Order 39
Rule 1 and 2 of the Code of Civil Procedure (in short 'the
Code'), for temporary injunction was allowed in favour of
plaintiff nos. 1 and 2 over the suit land restraining defendant no.
1, Bettiah Estate. On 28.08.2002, the prayer of plaintiff no. 3
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
made under Order 1 Rule 10 of the Code was allowed on the
ground that plaintiff nos. 1 and 2 have already sold their land to
plaintiff no. 3 through registered sale deed dated 16.06.2001.
Thereafter, on 03.10.2002, the plaintiffs filed a petition under
Order 1 Rule 10 of the Code for impleadment of names of
petitioner and his younger brother, namely Birbal Yadav, as
defendant 3rd set in their plaint on the ground that the petitioner
and his brother have been creating obstruction in peaceful
possession of the plaintiffs over the suit land and in their
absence, the order of injunction would be meaningless and
subsequently, they were impleaded as parties. After nine years
of the passing of the order of injunction, plaintiff no. 3 filed a
petition under Section 151 of the Code on 15.01.2011 before the
learned trial court for police protection and for appointment of
Executive Magistrate for vacating the illegal possession of
defendants 3rd set claiming that even after injunction order, they
were dispossessed by the defendants 3rd set/respondents 3rd set.
On 08.06.2011, the learned trial court after hearing the parties
and perusing the record, rejected the petition of plaintiff no. 3.
Thereafter, plaintiff no. 3 challenged the said order dated
08.06.2011 by preferring an application under Article 227 of the
Constitution of India vide C.W.J.C. No. 13231 of 2011. The said
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
petition was rejected by a learned Single Judge of this Court.
After three years of the orders passed by this Court, on
04.07.2014, plaintiff no. 3 filed a petition before the learned trial
court for mandatory injunction and ad interim injunction over
the suit land to get back possession over the suit land from the
hands of defendants 3rd set through police force. On 22.07.2014,
defendants 3rd set filed rejoinder to the petition of plaintiff no. 3
denying the allegation made by plaintiff no. 3 stating that
plaintiff no. 3 never came into possession of the suit land.
Pursuant to the said application of plaintiff no. 3 dated
04.07.2014, the learned trial court called for a report from
concerned Circle Officer on 11.02.2016 with regard to actual
possession of the suit land as well a report regarding
dispossession of plaintiff no. 3 in the hands of defendant 3 rd set.
Consequently, report was submitted by the Circle Officer after
conducting enquiry through Circle Inspector and Halka
Karamchari. The report showed that defendants 3rd
set/respondents 3rd set were in possession of the suit land.
However, on 15.10.2016, the learned trial court after hearing the
parties and ignoring the previous order dated 08.06.2011 passed
by the predecessor court, allowed the prayer of plaintiff no. 3 for
mandatory/ad interim injunction. The petitioner challenged the
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
said order dated 15.10.2016 before this Court by filing Civil
Misc. No. 703 of 2016 which was heard by a learned Single
Judge but the said petition was dismissed as withdrawn with
liberty to file an appeal as per the provisions of the Code.
Thereafter, on 05.11.2016, the petitioner challenged the
aforesaid order before the learned District Judge, West
Champaran at Bettiah by filing Misc. Appeal No. 36 of 2016
and after hearing the parties, on 30.05.2019, the learned
appellate court rejected the prayer of the petitioner. The said
order is under challenge before this Court.
3. Learned counsel for the petitioner submitted tht
the orders impugned are patently illegal and not sustainable in
the eyes of law. When there is no report or any material on
record regarding possession or dispossession of plaintiff no. 3
on the suit land at any point of time, learned subordinate courts
committed grave error in passing the order for mandatory
injunction in favour of plaintiff no. 3. Admittedly, the suit land
was 'Bakast' land of Bettiah Estate, defendant 1 st set which, is
under the management of Courts of Wards. Further, the land
under Court of Wards have been made public land by
amendment in the year 1994. The plaintiffs have categorically
admitted that they have purchased the land during pendency of
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
Title Suit No. 105 of 1981 and therefore, purchase is hit by
principles of lis pendense. The defendant 2nd set was employee
of Bettiah Estate and any transaction made by defendants 2 nd set
in favour of plaintiff nos. 1 and 2 was wholly illegal as
defendants 2nd set were not having any right, title or possession
over the suit land and for this reason, the plaintiffs cannot claim
right, title and possession over the same. The vendor of plaintiff
nos. 1 and 2 was a servant of Bettiah Estate and the suit land
had never been let out or settled to plaintiff nos. 1 and 2 by the
Bettiah Estate nor they came in its possession by way of
principles of adverse possession rather the plaintiff nos. 1 and 2
admitted in compromise that they never came in possession and
acquired any title over the suit land. Further, the Bettiah Estate
has leased out the said land to defendant no. 4 and wife of
defendant no. 5 through duly executed lease deed and in this
way, the petitioner and defendant 3rd set came in physical
possession of the suit land and they have constructed pucca
boundary wall surrounding the suit land. The plaintiffs or any
body else never came into possession of the suit land for a
single moment. The possession of the land was with Bettiah
Estate who had delivered the same to the petitioner and
defendant 3rd set but this fact was not taken into consideration
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
by the learned trial court as well as appellate court. Learned
counsel further submitted that the impugned orders are patently
illegal as the learned trial court as well as appellate court failed
to appreciate the fact that plaintiff no. 3/respondent no. 3 was
not a party to the suit at the time of passing of order of
injunction and the petitioner and respondent 3 rd set/respondent
no. 10 were also impleaded in the suit after passing of the order
of injunction. Therefore, plaintiff no. 3 has no locus standi to
pray for such reliefs especially in view of the fact that the said
order has been passed even without proper enquiry regarding
suit land and was passed behind back of the petitioner. Learned
trial court as well as learned appellate court further failed to
appreciate that ad interim mandatory injunction can be granted
only in exceptional cases. Issuance of interim mandatory
injunction directing possession being handed over to the
plaintiff, even before deciding whether he is entitled for
possession or not would mean decreeing the suit even before
trial and on this score alone, the impugned order is illegal and
bad. On this aspect of the matter, learned counsel for the
petitioner referred to a decision of the Hon'ble Supreme Court
in the case of Metro Marins & Anr. Vs. Bonus Watch Co. Pvt.
Ltd. & Ors, reported in AIR 2005 SC 1444 wherein referring to
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden,
reported in (1990) 2 SCC 117, the Hon'ble Supreme Court held
that mandatory injunction can be granted only in exceptional
cases coming within the exceptions noticed in the said
judgment. Considering the facts of the case, the Hon'ble
Supreme Court opined that the case of the respondent therein
did not come under any of the exceptions and also held that
even on facts it was not such a case which would call for the
issuance of an interim mandatory injunction directing the
possession being handed over to the respondent. Learned
counsel further submitted that when the issue, whether plaintiff
no. 3 is entitled for possession, is yet to be decided. the grant of
any interim order directing handing over the possession would
only mean decreeing the suit even before trial. Learned counsel
next referred to a decision in the case of Dorab Cawasji
Warden Vs. Coomi Sorab Warden, reported in AIR 1990 SC
867, wherein the Hon'ble Supreme Court held that such type of
injunction has to be issued only in a case where there are
exceptional circumstances and where the injury complained of
irreparable and serious and likely to cause extreme hardship to
the plaintiff. In the present case, the suit has been filed in the
year 1995, order of injunction was passed on 27.02.2002,
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
alleged date of dispossession given by plaintiff no. 3 is about
four years back, the evidence of the parties have been recorded
and the trial of the suit is on the verge of conclusion. But both
the learned courts failed to appreciate the law as well as facts
which were placed before them and passed erroneous orders.
Learned counsel referred to a decision of Hon'ble Supreme
Court in the case of Maharwal Khewaji Trust (Regd), Faridkot
Vs. Baldev Dass, reported in (2004) 8 SCC 488, wherein the
Hon'ble Supreme Court held that unless and until 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. Thus, learned counsel submitted that the impugned
orders are not sustainable and the same be set aside.
4. Learned counsel appearing on behalf of respondent
no. 3 vehemently contended that there is no infirmity in the
impugned orders and the same need to be sustained. Learned
counsel further submitted that respondent no. 3 purchased the
suit land from respondent nos. 1 and 2 through registered sale
deed dated 16.06.2001 and his petition for impleadment was
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
allowed on 27.08.2002. Admittedly, the case of the plaintiff nos.
1 and 2 was that they were in possession of the suit land and
sought injunction against defendant no. 1 which was allowed
and defendant no. 1 was directed not to interfere in the
possession of the plaintiff nos. 1 and 2 till the suit was finally
decided. The present petitioner has tried to make out a case and
claim over the suit land on the basis of lease deed said to have
been executed by defendant no. 1, Bettiah Estate. But the lease
deed is unregistered one and got no legal value for conveying
any title in their favour in view of mandate of Section 17 of
Registration Act, 1908. Therefore, no right or possession has
been conveyed in favour of the petitioner and respondent 3 rd set.
The petitioner is an encroacher over the suit land of Schedule I
having no right or title. Learned counsel further submitted that
despite impleadment, the present petitioner and respondent no.
10 have not been appearing in the case and a petition was filed
in the court of learned Sub Judge to the extent that the order of
injunction dated 27.02.2002 passed by learned Sub Judge be
extended upon newly added defendant nos. 4 and 5 which was
allowed vide order dated 25.08.2003. Learned counsel further
submitted that it goes without saying that since the petitioner
and respondent no. 10 herein claim to be lessee from defendant
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
no. 1, Bettiah Estate, as such any order passed against it will be
binding upon the petitioner and respondent no. 10. Learned
counsel further submitted that Title Suit No. 105 of 1981 was
dismissed and was decreed in favour of vendors of plaintiff nos.
1 and 2 and thereafter, the vendors compromised the suit in
appeal with defendant no. 1/Bettiah Estate. Therefore, the claim
of plaintiff no. 3/respondent no. 3 arises from a valid tile of the
vendors of plaintiff nos. 1 and 2. Therefore, illegal acts of
defendant/petitioner herein to dispossess the answering
respondent has to be dealt with strong hands for protecting a
rightful owner. In the light of these facts and circumstances, it is
clear that there is no merit in the petition and the same needs to
be dismissed.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. Perusal
of the impugned orders throws some interesting facts. The
plaintiffs claim to have purchased the suit land from a person
stated to be employee of Bettiah Estate and the Bettiah Estate
has been made defendant no. 1 in Title Suit No. 44 of 1995 and
the said employee compromised the matter in Title Appeal No.
33 of 1994, which was filed against the judgment and decree of
Title Suit No. 105 of 1981, admitting the right and title of
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
Bettiah Estate over the suit property. The plaintiff, thereafter,
filed the suit for declaring such compromise to be illegal and
collusive and not binding upon the plaintiffs. During the
pendency of the suit, plaintiff no. 3 came into picture by
purchasing the suit land and seeking his impleadment which
was allowed. It also transpires that petitioner and respondent no.
10 were also impleaded as defendant nos. 4 and 5 on the ground
that they have been creating disturbance and obstruction in
enjoyment of property by plaintiff no. 3. Further, the order of
injunction was made applicable to defendant nos. 4 and 5 vide
order dated 25.08.2003. Now the plaintiff no. 3/respondent no. 3
has claimed that the petitioner and respondent no. 10 have
dispossessed plaintiff no. 3 and earlier prayer for police
protection was rejected by the learned trial court as well as by
this Court holding that the petitioner did not pray for mandatory
injunction before the learned trial court and whether the
petitioner has been dispossessed or not was never investigated
by the learned trial court and the order of this Court was passed
on 30.08.2011. Thereafter, it appears, on 04.07.2014 plaintiff no.
3 filed petition before the learned trial court for mandatory
injunction and ad interim injunction over the suit land to get
back possession over the suit land. Further, from perusal of the
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
impugned orders it appears that the learned subordinate courts
have not at all recorded any finding about possession and
dispossession of plaintiff no. 3. The subordinate courts relied on
a report of the Circle Officer on the point of dispossession but
even though referring on the report of the Circle Officer, there is
no discussion about the said report. Not making the position
clear about possession or dispossession of plaintiff no. 3 makes
the impugned orders unsustainable. When the possession of
plaintiff no. 3 is yet to be decided and his entitlement over the
suit land is still under question and there is not even any
discussion on respective rights of the parties, granting any
interim order for directing handing over of the possession
tantamount to decreeing the suit even before the trial when there
is no non-contested status of the suit property. In this regard
reference can be placed on the decision in the case of Metro
Marins & Anr. Vs. Bonus Watch Co. Pvt. Ltd. & Ors (supra) is
quite apt which reads as under:-
"Having considered the arguments of
the learned counsel for the parties and
having perused the documents produced,
we are satisfied that the impugned order
of the Appellate Court cannot be
sustained either on facts or in law. As
noticed by this Court in the case of
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
Dorab Cawasji Warden vs. Coomi
Sorab Warden (supra) has held that an
interim mandatory injunction can be
granted only in exceptional cases
coming within the exceptions noticed in
the said judgment. In our opinion, the
case of the respondent herein does not
come under any one of those exceptions
and even on fact it is not such a case
which calls for the issuance of an
interim mandatory injunction directing
the possession being handed over to the
respondent. As observed by the learned
Single Judge the issue whether the
plaintiff is entitled for possession is yet
to be decided in the Trial Court and
granting of any interim order directing
handing over of a possession would only
mean decreeing the suit even before
trial. Once the possession of the
appellant either directly or through his
agent (caretaker) is admitted then the
fact that the appellant is not using the
said property for commercial purpose or
not using the same for any beneficial
purpose or the appellant has to pay huge
amount by way of damages in the event
of he loosing the case or the fact that the
litigation between the parties is a luxury
litigation are all facts which are
Patna High Court C.Misc. No.1310 of 2019 dt.13-05-2025
irrelevant for changing the status quo in
regard to possession during the
pendency of the suit."
6. Therefore, in the light of aforesaid discussion, I
am of the considered opinion that the learned subordinate courts
have passed the orders without sufficient reasoning and thus, the
orders border on perversity and such orders cannot be sustained.
Hence, the impugned orders dated 30.05.2019 and 15.06.2016
are set aside.
7. Accordingly, the present petition stands allowed.
8. However, considering the fact that the parties are
before the learned trial court since 1995, the learned trial court
is directed to show some urgency and dispose of Title Suit No.
44 of 1995 within six months from the date of
receipt/production of a copy of this order.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR NAFR
CAV DATE 28.02.2025
Uploading Date 13.05.2025
Transmission Date NA
