Patna High Court
The State Of Bihar vs Usha Devi And Anr. on 20 February, 1956
Equivalent citations: AIR1956PAT455, AIR 1956 PATNA 455
JUDGMENT Ahmad, J.
1. This is an application by the State of Bihar, who are defendants in the suit, against an order dated 5-5-1955, whereby the learned Munsif has directed the Nazir to give delivery of possession of the plot in dispute to opposite party No. 1 which, it was alleged before the learned Munsif, was taken possession of by the petitioner in spite of the order of interim injunction passed in the case on 6-5-1954.
2. The suit giving rise to his application relates to plot No. 5205 in Khata No. 291 which has an area of about 22 acre. In the survey record of rights it was recorded as ghairmazrua khas of the then Raja of Jharia. The case of the opposite party No. 1 who is the plaintiff in the suit, is that the then Raja of Jharia settled some lands with her as a tenancy holding including the plot in dispute, and since then she has been in possession of the same.
Long thereafter the estate of the Raja of Jharia vested in the State of Bihar by a notification issued under the Bihar Land Reforms Acton 27-10-1952. On the publication of that notification, it appears that the Revenue Subdivisional Officer, Giridih, issued a notice on 26-10-1953, to the Raja of Jharia requiring him to deliver possession of plot No. 5205 whereon at present a Bhandar stands or to show cause against the notice. On receipt of that notice, the Raja of Jharia showed cause stating therein that the plot in dispute was never used as office or kutchery for collection of rent and, as such, the State had no right to take possession of the same.
Thereafter it is alleged in the plaint that on 23-1-1954, the contractor of the State of Bihar forcibly and without any right entered into the Bhandar and began to dismantle its eastern room. At this the plaintiff's men objected whereupon the contractor stopped the work. But soon thereafter when the show cause petition of Raja of Jharia was finally rejected by the Revenue Department on 3-2-1954, the contractor again re-Started dismantling that room of the Bhandar.
The plaintiff then, having failed in the Revenue Department, instituted the suit giving rise to this petition alleging therein, inter alia, that the plot in dispute was her private property and that it was not a part of the zamindari estate of the Raja of Jharia and further stating therein that in. fact village Telo wherein plot No. 5205 lies was not notified under the Bihar Land Reforms Act. She on these allegations, prayed that the defendants be restrained from dismantling, reconstructing and altering the Bhandar and also from dispossessing the plaintiff from it.
The suit was instituted on 6-3-1954, and along with it a prayer for an interim injunction was also made to restrain the State of Bihar from, disturbing the possession of the plaintiff in the meantime. On the filing of the application the court issued the interim notice on the same day which was made absolute on hearing the parties on 6-5-1954. Against that order the State of Bihar went in appeal which was dismissed on 23-3-1955. Thereafter on 5-5-1955, the plaintiff made an application to the court that the plot in dispute which had been forcibly taken possession of by the defendants in spite of the order of injunction should be re-delivered to her. The court on hearing the parties passed the following order:
''Plaintiff files a petition and requisites for issue of delivery of possession through special peon ami Nazir may also be deputed to deliver possession. Nazir is directed to give delivery of possession. Party to deposit Nazir's cost and special peon's costs (Rs. 16 and Rs. 4)''.
The present application is directed against this order.
3. Mr. Shahi, appearing for the State of Bihar, has contended that the order is without jurisdiction. According to his contention, the State of Bihar had already taken possession of the land in dispute long before the institution of the suit on 6-3-1954, and, therefore, the overt act, if any, which had been committed by the State of Bihar had not been committed after the passing of the interim injunction.
In that view of the matter, the learned Munsif, it has been argued, was not justified to pass the order to re-deliver possession. Whatever may be the allegations or counter-allegations of the parties in respect to the present position of the parties relating to the land, this much, however, is obviously clear that the State of Bihar had not come in possession of that land till 26-10-1953, when a notice was issued by the Revenue Sub-divisional Officer, Giridih, calling upon the Raja of Jharia to give possession of the Bhandar to the State of Bihar.
The dispute, therefore, if any, as to possession of the land, between the parties must have begun sometime thereafter. And in the course of that, it is not denied that the contractor of the State of Bihar had either forcibly or in some other way succeeded in dismantling some portion of the eastern room of that Bhandar. It was at this stage that the suit giving rise to this application was instituted on 6-3-1954, and also an order of interim injunction was passed against the State of Bihar restraining them from dismantling it any further and from dispossessing the plaintiff from that Bhandar.
It, therefore, cannot be said with certainty that at the time when the order for injunction was passed, the State of Bihar had in fact completely taken possession of the land in dispute, though they might have succeeded in dismantling some portion of it here and there. This is to some extent clear also from the concession made by the Govt. Pleader in the court below in the course of the hearing of the application for interim injunction. The learned Munsif in his order has stated:
"The learned pleader for the defendants submitted that the defendants have made alterations during the pendency of the suit but if the defendants have done so they have done so at their own risk knowing full well that the plaintiff had already prayed for an order of injunction and the matter was subjudice".
This statement of fact by the learned Munsif shows that the entire position of the parties in respect of the land in dispute at that point of time was in a fluid condition. On one side the State of Bihar was trying to dismantle the whole thing and on the other the plaintiff was trying to save the property from their possession as far as possible. That being so, it cannot be said that the State of Bihar had in fact come into complete possession of the property at about point of time.
Subsequent thereto, it is not denied that the State of Bihar, had been restrained from further demolishing that house and thereby interfering with the possession of the plaintiff. The order of interim injunction as to possession passed by the learned Munsif has been finally confirmed by the Court of appeal, and on the face of that order it is not open now to the State of Bihar either to demolish the Bhandar any further or to interfere with the possession of the plaintiff in any other form or manner.
The allegation of the plaintiff at the time when the order under revision was passed was that her possession over the Bhandar was interfered with subsequent to the passing of the interim injunction against the State of Bihar. That contention, as it appears from the order of the learned Munsif, was accepted and on the footing of that finding the learned Munsif passed an order on 5-5-1955, for redelivery of the possession of the property to her. I am informed that a separate proceeding for disobeying the interim order is also pending against the State of Bihar.
It is, therefore, not advisable to give findings on facts which are connected with that proceeding for that may prejudice the position of the parties in that proceeding. Prima facie, it appears to me that the order passed by the learned Munsif on the facts of this case cannot be said to be one without jurisdiction. If a court comes to the conclusion that an order passed under Order 39 Rule 1 or 2 have been disobeyed and by a contravention of (supra) order the other party in the suit has done (supra)ing for its own advantage to the prejudice (supra) other party, it is open to the Court under inherent jurisdiction to bring back the party to a position where it originally stood as if the order passed by the court has not been contravened. The exercise of this inherent power vested in the court is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court.
4. Mr. Bose, appearing for the opposite party, has in support of the order relied on this principle and drew my attention by way of analogy to the decisions given in Aygammal v. Thangavelu Padayachi, 1950 Mad 317 (AIR V 37) (A) and Mahraj Bahadur Singh v. A. H. Forbes, 1922 Pat 382 (AIR V 9) (B). These cases, in my opinion, clearly lay down that in circumstances like these, the court has got inherent jurisdiction to do what has been done in this case by the learned Munsif on the facts found by him. That being so, it cannot be said that the order under revision passed by the learned Munsif is one without jurisdiction. In that view of the matter the contention raised by Mr. Shahi fails.
5. For the reasons stated above, I think that it is not a fit case in which I, sitting in revision, should interfere with the order. The application, is, therefore, dismissed but, in the circumstances of his case, there will be no order as to costs.