Calcutta High Court (Appellete Side)
Manash Kumar Maji & Ors vs Suman Maji & Anr on 17 December, 2018
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 3889 of 2016
MANASH KUMAR MAJI & ORS.
-Versus-
SUMAN MAJI & ANR.
For the Petitioners: Mr. Debjit Mukherjee
Ms. Susmita Chatterjee
For the Opposite parties: Mr. Nilanjan Bhattacharjee
Ms. Paramita Roy
Heard on: December 07, 2018.
Judgment on: December 17, 2018.
BIBEK CHAUDHURI, J. : -
1.Legality, propriety and correctness of an order dated 3rd September, 2016 passed by the learned Civil Judge (Junior Division), Amta, Hooghly in Title Suit No.137 of 2015 rejecting plaintiff's application under Section 151 of the Code of Civil Procedure (hereinafter C.P.C for short) for restoration of possession of title suit in favour of him with the help of police, is under challenge in the instant revision.
2. The petitioners filed the above mentioned title suit against the defendants/opposite parties for a decree for declaration of title and permanent injunction over the suit property in the court of learned Civil Judge (Junior Division), Amta. In the said suit the petitioners filed an application under Order 39 Rule 1 and 2 read with Section 151 of the CPC praying for ad interim as well as temporary injunction restraining the defendants, their main and agents from disposing them from the suit property. The learned trial judge by an order dated 18th November, 2015 allowed plaintiffs/petitioners praying for ad interim injunction restraining the defendants/opposite parties from disturbing peaceful possession of the plaintiffs in respect of the suit property. It is allowed by the petitioners that while the said order of ad interim injunction was inforce the defendants/opposite parties tried to dispossess the petitioners on 6th January, 2016 on several dates i.e. 6th January, 2016 and 11th January, 2016 but failed due to timely and effective resistance by the petitioners. Finally on 14th February, 2016 the opposite parties with the help of others successfully and forcibly dispossessed the petitioners from the suit property and tried to raise some construction on the eastern portion of the suit land and thereby admitted to change the nature and character of the same. The petitioners immediately recorded the said incident of the illegal dispossession from a portion of the suit property in violation of the order of an ad interim injunction in the local PS. Subsequently, on 23rd March, 2016 the petitioners lodged a complain to the local Block Land and Land Revenue Officer (BL and LRO) against alleged illegal and forcible dispossession from a portion of the suit property. The Revenue Inspector, attached to the office of the BL and LRO, Amta-II conducted field inquiry in presence of both the petitioners and the opposite parties on the basis of the report of the said filed inquiry, the BL and LRO, Amta directed the opposite parties to restore the nature and character of the suit property to its original position and FIR was also lodged against the opposite parties for illegal conversion of the suit property under Section 4(c) of the West Bengal Land Reforms Act, 1956.
3. Subsequently, the petitioners filed an application under Section 151 of the CPC praying for restoration of the possession of the suit property through police help. The petitioners also filed an application under Order 39 Rule 7 of the CPC praying for local inspection of the suit property to ascertain as to whether they were dispossessed from the suit land or not. The learned trial judge allowed the aforesaid application under Order 39 Rule 7 of the CPC and appointed an advocate commissioner for local inspection who on 29th May, 2016 submitted his report stating, inter alia, that there was a pukka construction up to plinth level used as a platform (Bedi) for worshiping Godies Ma Monasha and such construction was made very recently.
4. The learned trial judge perused the field inquiry report submitted by the Revenue Inspector in terms of order passed by local BL and LRO, order of the BL and LRO, report of the local inspection submitted by the advocate commissioner and refused to grant the prayer for restoration of possession in favour of the petitioners through police help.
5. The aforesaid order dated 13th September, 2016 is under challenged in the instant revision.
6. Mr. Mukherjee, learned advocate for the petitioners submits that the impugned order suffers from jurisdictional error in as much as the learned trial judge failed to appreciate the nature of ad interim order of injunction granted in favour of the petitioners and against the opposite parties restraining them from dispossessing the peaceful possession of the plaintiffs in respect of the suit properties till 17th December, 2015.
7. It is one not disputed that the said order of ad interim injunction was extended by the learned court below till 17th November, 2016. When the said order of injunction was inforce, the petitioners were dispossessed from the suit property. Under such facts and circumstances it is the bounden duty of the court to maintain its own order. In such circumstances, the learned court below should exercise its inherent power to restore possession of the suit property in favour of the petitioners. In support his contention, Mr. Mukherjee relies upon the judgment of the Division Bench of this Court reported in AIR 1986 Cal 220 (Sujit Pal vs. Probir Kumar Sun and others). Next, he refers to a judgment of Patna High Court reported in AIR 1990 PATNA 1 (Smt. Indrawati Devi vs. Bulu Ghosh and others) wherein it is observed that the court has inherent jurisdiction to pass an order of restoration of possession under Section 151 of the CPC if a person is illegally dispossessed from his property during the pendency of the suit. On the similar issue he also refers to another decision of Andhra Pradesh High Court in the case of Mir Bazlay Ali vs. Jagirdor Nirkhy Mir Mahammad Ali (deceased by LR) and others reported in AIR 2006 Andhra Pradesh 131.
8. Mr. Mukherjee further submits that if a party takes recourse to any contrivance to dispossess any, during the pendency of the suit either in violation of the order of injunction or otherwise, the court indisputably will have to restore the parties back to the same position under its inherent power.
9. Coming to the instant case, it is submitted by Mr. Mukherjee, learned advocate for the petitioners that the trial court on being satisfied about the possession of the petitioners over the suit property, passed an ad interim order of injunction. Subsequently, the petitioners alleged that they were dispossessed by the opposite parties. In order to bring about the real picture as to possession as on date, the learned advocate for the petitioners draws my attention to an order dated 23rd May, 2016 passed by the BL and LRO, Amta-II in a proceeding under Section 4(c)(5) of the West Bengal Act which was registered as Misc Case No.53/1 of 2016. It is found from the aforesaid order which is annexed with the application for revision that the petitioners were illegally dispossessed by the opposite parties. The opposite parties also tried to change the nature and character of the suit property by raising a construction of a platform (Bedi) with bricks wall up to the plinth area for worshiping of Godies Ma Monasha. As per the report of the Revenue Inspector, the BL and LRO also found existence of a toilet which, accordingly revenue inspector was "found to be made recently". Therefore, the learned advocate for the petitioners submits that the learned court below failed to exercise his jurisdiction vested on him by rejecting the petitioner's applications under Section 151 of the CPC for restoration of possession of the suit property.
10. Mr. Bhattacharjee, learned advocate for the opposite parties, on the other hand submits that the order of ad interim injunction in favour of the petitioners was passed by the learned trial judge on consideration of prima facie case, balance of convenience and irreparable loss and injury. While considering prima facie case, the learned trial court took into account the record of rights in respect of the suit property and the deeds of gift by virtue of which the petitioners are claiming over the property. While considering a prayer for ad interim injunction, it is not possible for the court to ascertain the question of fact as to whether the petitioners were really in possession of the suit property or not. In order to substantiate his contention, Mr. Bhattacharjee invites my attention to the field inquiry report submitted by the revenue inspector in Misc Case NO.53/1 of 2016 under Section 4(c)(5) of the WBLR Act. It is recorded in the said property that the opposite parties denied the allegation of wrongful dispossession of the petitioners from the suit property by them. The opposite parties version was that local villagers has been using the suit property since long for worshiping Godies Ma Monasha. There was a platform (Bedi) for offering Puja of Godies Ma Monasha on the suit land since long. As it was dilapidated, local villagers renovated the said platform (Bedi) by raising bricks build wall up to the plinth level. Considerable portion of the suit property is being used as play ground by the local villagers. They also constructed a toilet very recently. They also took out cleaning work of a pond situated on the suit property. Thus the opposite parties commit any illegal act of dispossession of the petitioners as alleged.
11. Mr. Bhattacharjee, further submits that the relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status qua of the last no contesting status are proceeded the pending controversy until the final hearing of the suit. Such an order of mandatory injunction should be granted in very exceptional case if such an order of mandatory injunction is passed in favour of a party who may fail to establish his right at the trial, would cause great injustice or irreparable harm to the party against whom it was granted. In support of his contention, learned advocate for the opposite parties relies upon a decision of the Hon'ble High Court in the case of Metro Marins vs. Bonus Watch Co. Pvt. Ltd reported in (2004) 7 SCC 478. He also refers to the following decisions of the Supreme Court in support of his contention:-
1. (1990) 2 SCC 117 reported in Docab Cawasji Warden vs. Coomi Sorab Warden and Others.
2. (2006) 3 SCC 312 reported in Kishore Kumar Khaitan and another vs. Praveen Kumar Singh.
3. (2007) 12 SCC 201 reported in Meera Chauhan vs. Harsh Bishnoi and Another.
12. Having heard the submissions made by the learned counsels for the petitioners and the opposite parties and on perusal of the materials on record and having regard to the principles of law laid down in the reported decisions cited by the learned counsels for both the parties I like to state, at the outset that the Supreme Court in the case of K.K Velusamy vs. N. Palanisamy reported in (2011)11 SCC 275 has elaborately laid down the scope of Section 151 of the CPC in following words:-
"12.....
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.
(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way by in conflict with what has been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
13. Keeping in mind the situations for invoking Section 151 of the CPC as laid down in K. Valusami (supra), it has to be mentioned that the court has solemn duty to state the wrong right in exercise of its inherent powers for an Act is done by a party violating an order of injunction or stay. When a party violets an order of injunction, the court can by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of injunction order or give an appropriate direction to the police authority to render aid to the aggrieve parties for the due and proper implementation of orders passed in the suit and also order of police protection for implementation of such order. There could not be any dispute with regard to the above proposition of law consistently laid down by Supreme Court and different High Courts.
14. In the instant case the learned trial court while granting ad interim order of injunction in favour of the petitioners restraining the opposite parties from interfering with the possession of the petitioners over the suit property, the learned judge of course consider prima facie possession of the petitioners over the suit property. In Martin Burn Ltd vs. R.N Banerjee, reported in AIR 1958 SC 79 the Supreme Court observed that a prima facie case does not mean a case proved to the hint, but a case which can be said to be established if the evidence which is laid in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence laid, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on the evidence. In this case the petitioners established their prima facie title over the suit property by production of deeds of gift by virtue of which they were claiming title over the property. In order to establish prima facie, their possession over the suit property, they produced the finally published record of rights where their names have been recorded.
15. On the other hand the opposite parties could not produce any semblance of evidence, even prima facie, in support of their claim that the suit property is being possessed by the local villagers. The materials on record shows that a platform (Bedi) and a toilet were constructed on the suit property very recently. From the record of rights, it is ascertained that the nature of the suit property is agricultural land. The competent authority already initiated proceeding Section 4
(c)(5) of the West Bengal Land Reforms Act against the opposite parties for conversion of nature and character of the land.
16. From the submission made by the learned counsel for the opposite parties, this court finds that they have no right, title and interest over the property. They are claiming that the suit property is being used by local villagers for observing Monasha Puja and also as playground. The villagers have not come forward to lay stake over the suit property. On the other hand its prima facie ascertain that the petitioners are the lawful owners of the suit property. It is needless to say that if an order of injunction is not respected and protected by the court that passed the order, there will not be any sanctity of such order.
17. In the instant case the petitioners are enjoying an order of ad interim injunction. From the proceedings initiated under Section 4(c)(5) of the West Bengal Land Reforms Act as well as the advocate commissioner's report, it is found that the nature and character of the suit property were changed very recently. In view of such factual circumstance, the court has every authority to invoke its inherent jurisdiction under Section 151 of the CPC for protection of its right. Last but not the least the opposite parties did not make any application under Order 39 Rule4 of the CPC before the learned trial court for modification or discharge of the order of ad interim injunction granted in favour of the petitioners.
18. For the reasons recorded hereinabove, I am of the considered view that the impugned order passed by learned Civil Judge (Junior Division), Amta, Hooghly is liable to be set aside.
19. The instant revision is allowed on contest, however would any order as to costs.
20. Petitioners' application under Section 151 of the CPC is allowed. The learned trial judge is directed to take step for restoration of possession of the suit property in favour of the petitioners to its position as it stood on the date of granting order of ad interim injunction, if required with the help of local police authority.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)