Calcutta High Court (Appellete Side)
Sri Samrat Samanta & Ors vs Sri Somesh Dhara & Ors on 5 April, 2024
Author: Harish Tandon
Bench: Harish Tandon
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE M ADHURESH PRASAD
FM A 1271 of 2022
CAN 1 of 2022
Sri Samrat Samanta & Ors.
Vs.
Sri Somesh Dhara & Ors.
Appearance:
For the Appellants : M r. Sukumar Bhattacharya, Adv.
M s. Puja Sonkar, Adv.
For the Respondents : M s. Haardikaa Rajdev, Adv.
Judgment On : 05.04.2024
Harish Tandon, J.:
There has been a slew of litigations between the parties to the present suit or their predecessors in relation to the properties being the subject matter of the instant suit claiming undivided right, title and interest therein and/or on the strength of the probate granted to the Will of the original owner namely Bidhubhusan Samanta.
The instant appeal arises from an order disposing of an application for temporary injunction holding that the plaintiff/respondent have made out a prima facie case and the balance of convenience and inconvenience lies in 2 their favour and in the event the injunction is not granted they would suffer irreparable loss and injury.
The salient facts involved in the instant appeal are required to be adumbrated before we embark upon the legality and/or infirmity of the impugned order passed by the Trial Court. Admittedly, Bidhubhusan Samanta was the owner of the property described in the plaint of the instant proceeding and made and published his last Will on 11.10.1958 and got the same duly registered with the sub-Registry Office. By virtue of the said Will, the said testator, the Bidhubhusan Samanta, bequeathed his 1/4 th share each in respect of the properties owned and possessed by him to his three sons namely Gobardhan Samanta, Lakshmi Narayan Samanta and Shyam Sundar Samanta and the remaining 1/4 th share was bequeathed to other two grandsons Sambhu Nath Samanta and Asit Samanta. Undeniably, the said testator died on 29.6.1960 and a probate application was filed by one of the executors for grant in solemn form. After the citation was issued, the other executor namely Biswanath Samanta lodged the caveat and filed an affidavit in support thereof challenging the genuinity and the authenticity of the said Will. The record would reveal that the said probate proceeding was converted into a letter of administration proceeding and compromise was entered into wherein the said Biswanath Samanta was given 8 anna shares in respect of the entire properties. Subsequently, the letter of administration was granted by the Competent Court but there appears some dispute amongst the parties on the effect and/or intricacies of the said letter of administration which we will deal in extenso in the latter portion of this judgment.
3
Subsequently, the said Biswanath Samanta filed a suit for partition claiming 8 anna shares in respect of the entire properties on the premise of a compromise having entered in the probate proceeding which was decreed in preliminary form by the Trial Court. Some of the parties to the aforesaid partition suit preferred the first appeal i.e., FA 364 of 1977, before this Court. The said appeal was allowed on 16.5.1991 setting aside the preliminary decree with categorical observations that the grant of probate cannot be circumscribed by any terms in the compromise. There was no further challenge before the Supreme Court against the judgment and decree passed in FA 364 of 1977 by the Division Bench of this Court. Another suit being Title Suit no. 199 of 1992 was filed by the said Biswanath Samanta for enforcement of an agreement dated 5.7.1967 which was entered into by and between the parties during the probate proceeding which was ultimately dismissed at the preliminary stage on the ground of its maintainability. There was no further challenge to an order of dismissal of the said suit before the higher forum. Subsequent thereto, the appellant no. 1 herein filed Title Suit no. 23 of 2011 claiming partition and separation of the shares impleading some of the parties to the suit which ultimately ended in compromise through Lok Adalat. Subsequently the plaintiff/respondent filed a partition suit being Title Suit no. 486 of 2016 before the Trial Court which was dismissed for default on 4.4.2018. Without making an attempt for restoration of the said suit being Title Suit no. 486 of 2016, another suit is filed by the plaintiff/respondent being Title Suit no. 170 of 2019 for partition and separation of shares in which an order of injunction is passed by the Trial Court being the subject matter of the instant appeal. 4
The facts as adumbrated hereinabove are more or less undisputed but the respective Counsels are not ad idem on the implication and the effect of the decisions rendered therein and also on the effect of an award passed by the Lok Adalat. The preliminary objection is raised by the appellant that the moment an award is passed by the Lok Adalat, the same cannot be challenged by the plaintiffs by instituting a suit as the remedy only lies by preferring an application under Article 226 or 227 of the Constitution of India. In support of the aforesaid contention, the reliance is placed upon a judgment of the Apex Court in case of Bhargavi Construction & Anr. vs. Kothakapu Muthyam Reddy &Ors. reported in (2018) 13 SCC 480, State of Punjab & Anr. vs. Jalour Singh & Ors. reported in (2008) 2 SCC 660 and a Division Bench judgment of Andhra Pradesh High Court in case of Sanjay Kumar & Anr. vs. Secretary, City Civil Court Legal Services Authority, Hyderabad & Ors. reported in (2010) SCC Online AP 126. It is thus submitted that though the plaintiff/respondent have filed a suit for partition but in effect sought the nullification of the award of the Lok Adalat which is not permissible in view of the provisions contained in Section 21 of the Legal Services Authorities Act, 1987. It is further submitted that the earlier suit filed by the plaintiff/respondent for similar and identical reliefs was dismissed for default and no attempt was made to get the said suit restored and, therefore, the present suit is barred by a principle of res judicata.
On the other hand, the plaintiff/respondent submits that the award of Lok Adalat was passed in a proceeding where they were not impleaded as a party and, therefore, has no binding effect on them. It is further submitted 5 that the Division Bench of this Court in FA 364 of 1977 categorically observed that the letters of administration on the basis of a compromise is unknown in law and, therefore, such compromise cannot be given effect to which necessarily implied that the letters of administration was held to be ineffective, bad and set aside. It is further submitted that there is no impediment in assailing the award of the Lok Adalat being illegal, collusive, void and not binding upon the plaintiffs in view of the special facts that the plaintiffs were not a party to such proceeding which ended with the award passed by the Lok Adalat. In support of the aforesaid contention, the reliance is placed upon a judgment of the Karnataka High Court in Kishan Rao & Anr. Vs. Bidar District Legal Services Authority & Ors. reported in AIR 2001 Kar 407.
On the conspectus of the aforesaid contentions raised by the party more particularly on the ground as to whether the Civil Court can adjudicate an issue relatable to an award of the Lok Adalat even on the ground that the plaintiff/respondent were not party thereto. Before we proceed to decide the same it would be profitable to quote certain provision s of the Legal Services Authorities Act, 1987 which, in our opinion, is relevant for the present purpose, Section 19 of the said Act mandates the organization of the Lok Adalat of such intervals and place and for exercise of the jurisdiction for such area as it deem fit. It further provides a jurisdiction upon the Lok Adalat to determine and arrive at the compromise or settlement between the parties to a dispute in respect of any case pending before or matter which falls within the jurisdiction or is not brought before any Court for which the Lok Adalat is organized.
6
Section 20 of the said Act contained an exhaustive provision relating to the cognizance of cases by the Lok Adalat in the following:
"20. Cognizance of cases by Lok Adalats.--(1) Where in any case referred to in clause (i) of sub-section (5) of section 19,--
(i)(a) the parties thereof agree; or
(b) one of the parties thereof makes an application to the Court, for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there ar e chances of such settlement; or
(ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the Court shall refer the case to the Lok Adalat:
Provided that no case shall be referred to the Lok Adalat under sub - clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties.
(2) Notwithstanding anything contained in any cither law for the time being in force, the Authority or Committee organizing the Lok Adalat under sub-section (1) of section 19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub -section (5) of section 19 that such matter needs to be deter mined by a Lok Adalat, refer such matter to the Lok Adalat, for determination:
Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party.
(3) Where any case is referred to a Lok Adalat under sub -section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties.7
(4) Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles.
(5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law.
(6) Where no award is made by the Lok Adalat on the ground t hat no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-section (2), that Lok Adalat shall advice the parties to seek remedy in a court.
(7) Where the record of the case if returned under sub-section (5) to the court, such court shall proceed to deal with such case from the stage which was reached befor e such reference under sub-section (1).]' Section 21 which appears to have clinched the issues relating to the remedy available to the parties and the relative interpretations of such provisions through a catena of decisions relied upon by the respective Counsels. The aforesaid Section is quoted as under:
"21. Award of Lok Adalat.--1 [(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section(1) of section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court-fees Act, 1870 (7 of 1870).] 8 (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award."
On the conjoint reading of the aforementioned provisions, it leaves no ambiguity in our mind that any case which falls within the purview of Section 19(5) of the Act, the cognizance can be taken by the Lok Adalat in pursuit of the settlement or compromise after following the procedures as provided thereunder and such compromise on settlement partakes a character of an award which would be deem to be a decree of the Civil Court and shall be final and binding on all parties to the dispute. The embargo is created in challenging the said award by the Lok Adalat before the Appellate Court. Therefore, the embargo which is created against the award by the Lok Adalat is that no appeal would lie against it which is treated as final and binding on all the parties to the dispute. The question thus arose is whether there is an absolute embargo created under Section 21(2) of the said Act in approaching the Civil Court by seeking a declaration that such award is ineffective, void and not binding on the parties.
In Jalour Singh &Ors. (supra), an appeal against the compensation awarded by the Motor Accident Claims Tribunal was filed before the High Court and the said matter was referred to a Lok Adalat. The Lok Adalat passed an order enhancing the compensation with the rider that if the parties object to the aforesaid proposed order they can move the High Court within two months from the disposal of the appeal or the merits according to law. An application was taken out in the said appeal by one of the aggrieved person which was rejected on the ground that such objections were not 9 maintainable or entertainable for the reason that the award of the Lok Adalat can only be challenged under Article 227 of the Constitution of India. Subsequently an application under Article 227 of the Constitution of India was filed by the aggrieved person which was again dismissed holding that such petition under Article 227 of the Constitution of India is not maintainable. In the aforesaid perspective, the Apex Court held that if any party intend to challenge the award of the Lok Adalat same can be done by filing a petition under Article 226 or Article 227 of the Constitution which again is required to be considered in a limited compass. Howe ver, the Apex Court noticed the order of the Lok Adalat where the liberty was granted to either of the parties to approach the First Appellate Court in the event they do not agree with the proposed order and on such score it was held that the First Appellate Court can entertain an application and, therefore, an application under Article 227 is not maintainable on facts in the following:
"11. The travails of the parties did not end with the Lok Adalat. Because the Lok Adalat directed the aggrieved party to move the High Court for disposal of appeal on merits if they had objection to its order , the appellants moved the High Court by an application in the appeal, stating that they had not agreed to the enhancement proposed by the Lok Adalat and praying that the order of the Lok Adalat increasing the compensation by Rs 62,200 may be set aside as there was no settlement or compromise. The learned Single Judge failed to notice that there was no settlement or compromise between the parties; that the order made by the Lok Adalat was not an award in terms of any settlement as contemplated under the LSA Act; that the Lok Adalat had clearly stated that the parties may either agree to it, or move the High Court for disposal of the appeal on merits in accordance with law; and that in the absence of any settlement and "award", the appeal before the High Court 10 continued to be pending and could not have been treated as finally disposed of. The learned Single Judge instead of p erusing the order of the Lok Adalat and hearing the appeal on merits, proceeded on a baseless assumption that the order dated 3-8-2001 of the Lok Adalat was a binding award and therefore an application to hear the appeal, was not maintainable and the only remedy for the appellants was to challenge the order of the Lok Adalat by filing a writ p etition under Article 227 of the Constitution.
12. It is true that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits."
What can be culled out from the facts and the law enunciated in the aforementioned report that the award of the Lok Adalat is binding on the parties before it and becomes executable as a decree of the Civil Court and an embargo is created in approaching the Appellate Court under Section 21(2) of the said Act. Since the parties cannot be rendered remediless it was held that the approach can be made to the Constitutional Court under 11 Article 226 and/or Article 227 of the Constitution of India with the rider that while exercising such powers enshrined under the aforesaid provision , the Court should not act as an Appellate Court and the determination must be confined in a limited manner. The aforesaid judgment does not rule out that a non-party to the award of the Lok Adalat cannot file a suit seeking declaration that the said award is not binding on them. The expression "parties or the signatories to the settlement or the compromise entered before the Lok Adalat culminating into an award" cannot be interpretated to the effect that the only remedy is to approach the Constitutional Court.
In a subsequent decision rendered by the Apex Court in Bhargavi Construction & Anr. (Supra) the consideration was to a question as to whether the award of the Lok Adalat can be challenged by filing a Civil Suit both on the ground of the fraud and/or misrepresentation which appears to be somewhat identical to the facts involved in the instant case. In the said report, a suit for specific performance of an agreement for sale was filed before the Civil Court and during the pendency of the appeal the parties entered into a compromise and/or settlement and the same was filed before the Lok Adalat for passing an award. The members of the Lok Adalat after meticulously examining the terms and conditions so agreed upon and reflected in the said compromise petition accepted the same and passed an award which in no unequivocal terms is a deemed decree. Subsequently, the said award of the Lok Adalat was assailed by instituting an another Civil Suit on the ground that it is illegal, null and void and not binding on the plaintiffs therein having obtained by practicing fraud and/or misrepresentation. An application for rejection of the plaint under Order 7 12 Rule 11 (d) of the Code of Civil Procedure was taken out which was eventually allowed and subsequently the matter travelled to the Apex Court. A plea was taken whether the decision rendered in Jalour Singh (supra) would be regarded as a declaration of law and comes within the peripheral of Order 7 Rule 11(d) of the code. The Apex Court considering the provisions contained under Article 141 of the Constitution of India held that any declaration of law made by the Supreme Court includes a judicial decision of the Apex Court and, therefore, comes within the purview of the Order 7 Rule 11(d) of the Code in the following:
"24. In our consider ed view, the aforesaid law laid down by this Court is binding on all the courts in the country by virtue of mandate of Article 141 of the Constitution. This court, in no uncertain ter ms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Const itution of India in the High Court and that too on very limited grounds. In the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person (respondents herein/plaintiffs) was to file a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court for challenging the award dated 22 -8-2007 passed by the Lok Adalat. It was then for the writ court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for its quashing."
The judgment and the law declared by the Supreme Court has to be understood and applied in the context in which it is so passed. The ratio has to be culled out from the facts involved in each of the case as it is no longer res integra that an additional fact or a different fact may invite the decision otherwise. What has been emphasized even in Jalour Singh (supra) and 13 Bhargavi Construction (supra) that a signatory or parties to a compromise or settlement before the Lok Adalat which culminated into an award cannot challenge the same by taking a circuitous route of filing a Civil Suit or an appeal but the only remedy available to such aggrieved person is to approach the Constitutional Court under Article 226 and/or Article 227 of the Constitution of India. The question which involved in the instant case is whether a non-party or a non-signatory to a compromise or settlement arrived between the parties before the Lok Adalat can take recourse to Civil Suit seeking declaration that the said award is not binding on him or have to fall within the ambit of the aforesaid decisions providing a remedy only under Article 226 and/or Article 227 of the Constitution of India.
The Apex Court in Jalore Singh (supra) which is a larger Corum Bench in unequivocal term held that the signatory or the parties to a compromise before the Lok Adalat cannot resort to any other avenues against the award of Lok Adalat but have only remedy by way of Article 226 and/or Article 227 of the Constitution. Section 20 of the Act conveyed a laudable legislative intention that the Lok Adalat can take cognizance of a case on an agreement of the parties or on an application by one of the parties for referring the case to the Lok Adalat for settlement. It further postulates that the Lok Adalat shall not pass the award except after giving a reasonable opportunity of hearing to the parties. The word „parties‟ as understood in a common legal parlance is a person who is arraigned as a party in the suit and does not include a non-party. Even a fetter is put on the Lok Adalat in passing the award in the event the compromise or the settlement is not arrived between the parties. In such event, the Lok Adalat 14 shall return the case to the Court for adjudication on merit. There is no ambiguity in interpreting the word „parties‟ to mean parties to the suit which is also held by a Three Judge Bench in Jalour Singh (supra).
The Andhra Pradesh High Court in case of Sanjay Kumar (supra) though held that the only remedy is to approach under Article 226 and/or Article 227 of the Constitution but it does not lay down the law with certainty that the non-signatory or the party is debarred from seeking a declaration that such award is not binding on them. The expression „compromise‟ and „settlement‟ appearing under Section 20 of the Act was succinctly interpreted by the Apex Court in case of State of Punjab & Ors. vs. Shri Ganpat Raj, reported in (2006) 8 SCC 364 to mean and include the resolution of the differences through mutual process and, therefore, has to be understood in the above backdrop in the following:
"The specific language used in subsection (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in subsections (3) and (5) of Section 20 are "compromise" and "settlement". The former expression means settlement of differences by mutual concessions. It is an agr eement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Termes de la Ley, "compromise is a mutual promise of two or more parties that at controversy". As per Bouvier it is "an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon". The word "compromise"
implies some element of accommodation on each side. It is not apt to describe total surrender. (See NFU Development Trust Ltd., Re, (1973) 1 All ER 135 :
(1972) 1WLR 1548 (Ch D) ). A compromise is always bilateral and means 15 mutual adjustment. "Settlement" is termination of legal proceedings by mutual consent."
In Kishan Rao vs. Bidar District Legal Services Authority & Ors. reported in AIR 2001 Karn. 407 it is held that while passing an award it is an ardent duty of the Lok Adalat to see that all the parties to the suits are entering into a settlement and/or compromise. What is sine qua non is that the award of the Lok Adalat binds the signatories or the parties to the proceedings and cannot bind the non-party who are neither the signatories nor arraigned as a party in the suit. There is no quarrel to the proposition of law that e ven a decree passed by the Civil Court on contest after having attained a finality is binding on the parties to the said suit. We do not find any fetter in law in seeking a declaration by a stranger to the said suit that the said decree passed by Civil Court even on contest is binding on them. Taking a clue that the suit seeking declaration that the decree of the Civil Court is not binding on a non-party being maintainable, we do not find any fetter in seeking such declaration in relation to an award passed by the Civil Court. The only fetter which is put in the above-noted reports is that the signatory or the party to the compromise or settlement arrived between them which culminated into an award of the Lok Adalat cannot take recourse to any other forum except to approach the High Court under Article 226 and 227 of the Constitution. We then do not find any substance in the point raised by the appellant that the suit is not maintainable.
Reverting back to the question of res judicata it is no doubt true that an earlier suit filed by the plaintiff resulted into the dismissal of default and in spite of restoring the same a further suit is filed which is barred by res 16 judicata. The res judicata as incorporated in Section 11 of the Code of Civil Procedure is based upon a public policy i.e., every litigation must attain its finality and should not be allowed to be reopened provided the issues are finally and conclusively determined in an earlier proceeding. The plea of res judicata is based upon a rule of estoppel by issue creating an impediment on the part of the litigant in reopening such issue which has been finally heard and determined by the Court in an earlier proceeding. The question of res judicata is a mixed question on facts of law and should be applied on disclosure of the relevant documents. Mere dismissal of the suit for default does not ipso facto create embargo in applying the principles of res judicata as it depends upon the given facts; in other words whether the suit was dismissed under Order 9 Rule 4 or Under Order 9 Rule 8 of the Code of Civil Procedure. In the event a suit for partition can be filed on refusal to amicably partition of the properties, such cause of action in a recurring one. Had it been a case that in an earlier partition suit the right, title and interest of the plaintiff had been decided against him meaning thereby that he does not have any semblance of share in the joint property, the position would be different. Such stage has not come and, therefore, we do not find that the principle of res judicata can be applied at this stage.
It takes us to another point relating to the effect of the letters of administration granted in respect of a will made and published by the original owner. Undeniably, the original owner made and published the registered Will for which an application for grant of probate was filed. The record would reveal that a compromise was entered into as one of his son namely Biswanath Samanta objected to the grant by filing a caveat and an 17 affidavit in support thereof. There is no document forthcoming as to why it was converted into a letters of administration by appointing the said Biswanath Samanta as administrator pendente lite but the undisputed fact as discerned from the respective stand of the party that it was converted into a letters of administration. By virtue of a compromise in the said proceeding, the said Biswanath Samanta was given a 8 anna shares in respect of the entire estate of the said testator and on the basis thereof a Civil Suit was filed by him seeking partition and separation of such share. It is also an admitted fact that letters of administration was granted in favour of the said Biswanath Samanta. The said partition suit was decreed in preliminary form declaring 8 anna shares of Biswanath Samanta which was assailed before this Court in first appeal. This Court set aside the preliminary decree meaning thereby the declaration made in the preliminary decree that the said Biswanath Samanta had undivided 8 annas shares in respect of the estate is improper with the categorical observation that the Probate Court cannot grant letters of administration on the basis of a compromise. Such observation is construed by the parties to the proceedings in a different way. We had occasion to look at the grant of letters of administration with the Will annexed thereto, we do not find any reflection of an compromise having recorded therein, forming the basis of such grant. The certified copy of the letters of administration produced before us with the Will annexed thereto exposits the last wish and intention of the testator and the factum of such compromise is conspicuously absent therein. Though all the parties have admitted the factum of compromise having entered therein but the grant of the letters of administration does not 18 reveal such fact. Obviously the observation of this Court in the said appeal was on the basis of an admitted fact which cannot by any stretch of imagination be construed to have nullified or set aside such grant. It is mere an obiter on the proposition of law that the Probate Court being the Court of conscience cannot issue a grant de hors the Will or altering and/or superseding the last wish and desire the maker of the said Will. The grant of the letters of administration is still operative and cannot be perceived otherwise on the basis of such observation. The jurisdiction exercised by the Probate Court as a Court of conscience is limited to the extent of giving sanctity to the genuinity and the authenticity of the Will and cannot travel beyond it. The Probate Court does not decide the title of the parties in the property even if the same forms an integral part of the estate of the testator and we do not find any embargo in approaching the Civil Court for declaration of title. We are, therefore, unable to accept the contention of the appellant that the plaintiff/appellant has miserably failed to make out a prima facie case since the arguments were not advanced on the merit of the impugned order. We need not have to delve into it and the points which have been urged is decided as aforesaid.
We thus do not find any ground for interference with the impugned order. The appeal fails. All connected applications are accordingly dismissed.
No order as to costs.
19Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties subject to compliance with the requisites formalities.
(Harish Tandon, J.) I agree.
(M adhuresh Prasad, J.)