Calcutta High Court (Appellete Side)
Jamuna Manna & Ors vs Smt. Sovarani Santra & Ors on 9 February, 2021
Author: Shivakant Prasad
Bench: Shivakant Prasad
12.
9.02.2021
S.D.
S.A.T. 335 of 2016
With
CAN 1 of 2016 (Old CAN No. 7920 of 2016)
CAN 2 of 2018 (Old CAN No. 9730 of 2018)
CAN 3 of 2018 (Old CAN No. 9731 of 2018)
Jamuna Manna & Ors.
Vs.
Smt. Sovarani Santra & Ors.
Mr. Gopal Chandra Ghosh
....for the appellants.
Mr. Shibnath Ganguly
..For the Respondents.
In re: CAN 1 of 2016 (Old CAN No. 7920 of 2016) The defendants/appellants have filed this application with the prayer for an order of injunction restraining the plaintiffs/respondents from alienating the suit property or any part thereof or from creating any third party interest in the suit properties or any plot or plots thereof or from encroaching upon the suit property and/or from changing the nature and character of the suit properties till the disposal of the appeal.
The plaintiffs/respondents filed a suit before the Trial Court with the prayer for decree of declaration that the plaintiffs/respondents are the owners of schedule A, B and C property as mentioned to the schedule to the plaint with further decree of declaration that the defendants and their predecessor- 2 in-interest had/have no manner of right, title, interest and possession in any part or portion of the said property. Accordingly, further decree for permanent injunction was sought restraining the defendants, their men and agents from dispossessing, disturbing and/or interferring in any manner whatsoever in the peaceful physical possession of the suit property. Thus, the plaintiffs/respondents claimed their right, title, interest and possession in the suit property whereas the specific case of the appellants/defendants is that they got 51 sataks of land in R.S. Dag No. 135 = L.R. Dag No. 151 mentioned as B schedule property by virtue of Deed of Gift executed by Panchanani Manna, wife of Ananda Prasad Manna being No. 153 of 1976 which has been adduced in evidence and marked as Exhibit 3 and in their written statement, the defendants/appellants have contended that said Panchanani Manna had no transferable interest in the said Dag and the defendants are in adverse possession of the same for more than 56 years and the plaintiffs/respondents by taking advantage of the erroneous record in LRROR in the names of predecessor-in- interest Mathore Manna title is clouding the title. It would appear that the Trial Court has decreed the suit in part declaring right, title, interest and possession of plaintiff nos. 1 and 2 in respect of A and C schedule property and right, title, interest and 3 possession have been declared in respect of 2/3rd share in B schedule property in favour of plaintiff nos. 2 and 3. Accordingly, the plaintiffs/respondents were granted a decree of permanent injunction against the defendants/appellants from disturbing the peaceful possession of the plaintiffs' 2/3rd share over the suit property. The Trial Court's judgment and decree was appealed before the Appellate Court below and the Appellate Court upon hearing the parties by appellate judgment and decree dismissed the appeal preferred by the present appellants/defendants thereby affirming the judgment of the Trial Court. The Second Appeal has been preferred inter alia on the grounds that the suit is not maintainable as filed by the respondents/plaintiffs because the defendants/appellants are in possession and the suit have not been decreed without prayer for recovery of possession.
My attention is invited to the order passed by the Division Bench of this Hon'ble Court while formulating the substantial questions of law vide order dated 22.12.2016 wherefrom it is revealed that a question has been formulated for decision as to whether the learned Courts below were justified in holding that the suit is maintainable when the case of the pleadings of the plaintiff, it appears that the plaintiffs claimed that the defendants are in possession of the suit property, but no relief was claimed 4 for recovery of possession under Section 34 of the Specific Relief Act and further that the Courts below were not justified in declaring the title of the plaintiffs in respect of R.S. Dag No. 128 corresponding to L.R. Dag No. 143 without considering the corrected record of rights which was admitted into exhibit as an Exhibit C. The said substantial questions of law are required to be decided on merit in the Second Appeal. At this stage, the learned Advocate for the plaintiffs/respondents has raised objection by way of filing an affidavit-in-opposition contending that the appellants/defendants with mala fide motive has filed the instant application in this Second Appeal to take forceful possession of the decreetal property by dispossessing the respondents/plaintiffs therefrom. It is pointed out that the suit property is vacant/agricultural land and besides the physical possession, the respondents being the owners of the property are presumed to be in possession of the suit property though the respondents/plaintiffs are in physical possession and have planted crops and vegetables on the said land. Learned Advocate for the defendants/appellants refers to a decision in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) By LRs & Ors. reported in 2008 (3) Indian Civil Cases and adverted my attention 5 to observations made in paragraph 11, 13 and 14 to contend that possession follows title.
The observations in cited decisions as reproduced hereunder:
"11. The principles as to when a mere suit for permanent injunction will like, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
(11.1.) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
(11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
(11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
Xxxxxxx xxxxxxx
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of nth suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may 6 not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession ever though the suit is for a mere injunction. But where the issue of title involves complicated or complex question of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
As per the contentions made on behalf of the parties in their pleadings undoubtedly, it would go to show that the appellants/defendants have admitted the title and the plaintiffs/respondents are in adverse possession for 56 years and more but the background of the case has to be gone into at the time of final hearing of the appeal on its merit in the context of 7 the findings of the learned Courts below and therefore, the contentions of learned Advocate for the plaintiffs/respondents that the property being vacant site not being physically possessed, used or enjoyed by the plaintiffs/respondents, the principle that possession follows title has to be adhered to . All these contentions reflect that the plaintiffs/respondents are not in physical possession and even if the plaintiffs/respondents are in possession, the prayer made on behalf of the appellants/defendants can very well be considered at the stage when the appellants/defendants have simply sought for an order of injunction restraining the plaintiffs/respondents from not alienating or dealing with the suit property with any third party or encroaching upon suit property or from changing the nature and character of the suit property.
The Division Bench of this Hon'ble Court has raised a substantial question of law that whether the plaintiffs could claim the maintenance of the suit in law without recovery of possession under Section 34 of the Specific Relief Act or the plaintiffs/respondents can maintain the suit for declaration simplicitor. Bearing in mind, the background of the case and rival contentions of the parties, the parties were directed to maintain status quo with regard to the possession in the suit property and/or changing the nature and character of the suit till 8 the disposal of the application for injunction in which the appellants/defendants have sought for continuation of interim order till the disposal of the appeal.
In my considered view, the order as prayed on behalf of the appellants/defendants can be considered directing the parties to maintain status quo in so far as their possession in the suit properties is concerned and from changing the nature and character of the property till the disposal of the appeal as the suit property of the nature of agricultural land where the agricultural proceeds are produced, whether the person who grows the crops on the agricultural land is the owner or is not the owner but his possession has to be protected to this effect that an order of status quo be maintained in the suit property. So obviously, the plaintiffs/respondents would be debarred from alienating property or otherwise dealing with the property as apprehended by the appellants/defendants.
However, this order is passed without prejudice to the rights and contentions of the parties to the suit/appeal that may be available to the parties to be addressed before the Court at the final hearing of the appeal.
Thus, the application being CAN 1 of 2016 (Old CAN No. 7920 of 2016) is disposed of.
9
All connected applications to the Second Appeal stands disposed of.
It is submitted on behalf of the appellants/defendants that direction of the Division Bench of this Hon'ble Court to call for the records has been complied with by way of depositing of the costs of the Special Messenger for bringing the Lower Court Records.
Let the Lower Court Records be brought by appointing a Special Messenger within a week and the appellants/defendants are directed to prepare informal requisite Paper Books as per the direction within two weeks thereafter.
Let the matter appear in the monthly list for final hearing of the appeal.
Urgent certified copies of this order, if applied for, be given to the parties upon compliance of the formalities.
(Shivakant Prasad, J.)