Calcutta High Court (Appellete Side)
Sajli Kishku vs Talamoyee Kishku And Others on 9 August, 2019
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Dr. Sambuddha Chakrabarti
and
The Hon'ble Justice Madhumati Mitra
FMAT No. 1083 of 2018
With
CAN 8471 of 2018
Sajli Kishku
Vs.
Talamoyee Kishku and Others.
For the petitioner : Mr. Bidyut Kumar Banerjee, Sr. Advocate
Ms. Shila Sarkar, Advocate
For the respondent nos. : Mr. Debnath Mahata, Advocate
2 and 3
For the respondent nos. : Mr. Rajendra Banerjee, Advocate
4 to 6
Heard on : 19.12.2018, 04.01.2019, 10.01.2019,
31.07.2019
Judgement on : 09.08.2019
Sambuddha Chakrabarti, J.:
The point that has arisen for consideration in the present appeal is whether an interim order can be passed in a suit in which the co-sharers have not been joined as parties which has 2 the effect of rendering the suit not maintainable. Even if the issue has been settled by successive judicial pronouncements, it still deserves reiteration considering the submissions made from the bar.
A brief narration of the facts of the case is necessary. The appellant has filed a suit in the court below for partition and temporary injunction. The case made out in the plaint is that the property in question jointly belonged to four persons in equal shares. One Ragda Murmu, grandfather of the plaintiff and the defendant no.1, used to cultivate the land and her name had been recorded as 'Adhi Dakhalkar'. In the year 1957, the original owners of the land settled the property in favour of Ragda Murmu and he became its absolute owner. He died leaving behind his only daughter Dulali Murmu who subsequently transferred the property to the plaintiff and the defendant no. 1. The names of the plaintiff and the defendant no. 1 have also been recorded. The plaintiff claims that on September 25, 2017 the defendants nos. 2 to 6 in the suit who have no right, title and interest over the said property entered upon the suit land with weapons and tried to dispossess both the plaintiff as well as the defendant no. 1. Since in spite of 3 request the defendant no. 1 did not take any step for partition by metes and bounds the suit was filed.
The plaintiff also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for temporary injunction restraining the defendant nos. 2 to 6 from disturbing his possession and further dispossession of the plaintiff from the suit property.
The application for temporary injunction was contested in the court below by the defendants nos. 2 and 3 by filing a written objection wherein the allegations made in the application have been denied. It was their specific case that the suit was not maintainable for non-joinder of necessary parties. Ragda Murmu was not in possession of the suit property. On the contrary, the defendants nos. 2 to 6 have eight annas share in respect thereof. Their specific case was that the predecessor-in-interest of the defendant nos. 2 to 6 Munsi Hemram had half-share in the suit property and he owned and possessed the same for more than 12 years. After the death of Munsi Hemram they have been enjoying half of the suit property. Apart from the answering defendants different heirs of Munsi Hemram have been owning and possessing 4 the suit property. After the death of some of the direct heirs of the late Munsi Hemram their surviving heirs are necessary parties to the suit. The plaintiff was not entitled to any relief in the absence of these necessary parties. The defendant nos. 2 and 3 have denied the allegation of disturbing the possession of the plaintiff on September 25, 2017.
The defendants nos. 4 to 6 also filed a separate written objection to the plaintiff's application for temporary injunction denying the allegations on the same lines as those made by the other set of defendants.
The learned Trial Judge after a contested hearing had dismissed the application for temporary injunction by an order, dated September 27, 2018 which has given rise to the present appeal at the instance of the plaintiff.
The learned Judge has referred to a deed of gift, dated November 16, 1989, in favour of two persons who have not been impleaded in the suit. This document has not even been mentioned either in the plaint or in the application for temporary injunction, but by this deed 30 decimals of the suit property had been 5 transferred in favour of the donees. Non-disclosure of such information, according to the learned trial judge, amounted to suppression of material fact. The donees of the gift had also not been made parties to the suit. It has further been observed by the learned trial judge that the relevant Record of Rights showed that late Munsi Hemram and Shyam Tudu were the recorded tenants of the suit plot. Shyam Tudu was the predecessor-in-interest of the defendants. From this, the court held that it could not be said that the defendants nos. 2 to 6 were complete strangers to the suit property.
The principal challenge of the appellant to the order impugned is the failure on the part of the learned trial judge to apply the settled principles of law in determining the scope of an application for temporary injunction. He taken the point that the finding of the learned judge that for not impleading the donees of the deed of gift, dated November 16, 1989, the application for temporary injunction could not be granted, was contrary to the pleadings on record. On the contrary, the learned single judge should have appreciated that the appellant fulfilled all the conditions for grant of temporary injunction viz., a prima facie case of possessing the suit property which had been substantiated by a 6 proceeding under Section 50(f) of the West Bengal Land Reforms Act. A further grievance of the appellant is that the observation made by the learned Single Judge about the suppression of material fact was a misconceived one as the said deed of gift could not be substantiated by producing any documentary evidence by the defendants in the prior suit for partition rendering the finding untenable and bad.
It appears from the impugned judgment and order that the appellant herein filed the R.S. record of rights standing in the names of four persons who had not been mentioned to be the original owners of the suit property in the plaint. The document apparently showed the possession of the appellant and the respondent no. 1 herein i.e. legal heirs of Ragda Murmu.
Mr. Banerjee and Ms. Sarkar, the learned Advocates for the appellant, argued strenuously that the plaintiff is in the possession of the suit property and injunction cannot be granted in favour of a party unless he is in possession of the same. Since the appellant is in possession, so is the argument, he is entitled to an order of temporary injunction and the learned Trial Judge entering into the aspect of suppression of material fact and non-impleadment of the 7 other co-sharers erred in rejecting the application for temporary injunction.
In support of this contention Ms. Sarkar relied on a judgment in the case of Kishore Kumar Khaitan and Another Vs. Praveen Kumar Singh, reported in (2006) 3 SCC 312 for a proposition that an order of injunction cannot be passed unless there is a clear prima facie finding that the plaintiff was in possession of the suit property on the date of filing of the suit and passing of the order of status quo and that he had been subsequently dispossessed in violation of the subsisting order of status quo.
The stand of the appellant does not really address the issue involved in the appeal or for that matter in the application for temporary injunction itself. The emphasis on the legal proposition that a party is not entitled to an order of injunction unless he is in possession of the suit property is entirely a misplaced one. After all, the appellant is not challenging an order granting injunction in favour of a party. That could have been the appropriate occasion for the appellant's making such a submission that the other side was not entitled to an order of injunction as he was not in possession. While making the submission it was not appreciated 8 by the learned Advocates that what was under challenge was the refusal to grant an order of temporary injunction. Here a submission that unless one is in possession of the suit property one is not entitled to an order of injunction is plainly a misconceived one. It is not the law that mere possession or prima facie evidence of possessing a property without anything more entitles to a party of order of injunction. The judgment in Kishore Kumar Khaitan (Supra) has no application to the facts of the present case. That was an appeal arising out of the grant of an ad interim injunction on very different set of facts. There the plaintiff as tenant alleged violation of the order of ad interim injunction passed by the appellate court directing the parties to maintain status quo in respect of the suit premises. It was alleged that the plaintiff was dispossessed by the defendants after the order of status quo had been passed. The appellate court directed the defendants to restore the possession of the suit premises to the plaintiff without recording the requisite findings. That was challenged by the defendants before the High Court in a revisional application and the High Court set aside the order of the trial court and remanded the matter for reconsideration to the District Court. The District Court reconsidered the application for mandatory 9 injunction and allowed the same by upholding the claim of the plaintiff. That was followed by an unsuccessful challenge in revision by the defendants giving rise to the appeal before the High Court.
It was in this context that the Supreme Court observed that the tenancy claimed by the plaintiff was required to be proved in the suit. It was prima facie found that the plaintiff had not been able to establish the foundation for possession claimed by him. The disturbance of status quo had also not been established. The Supreme Court, therefore, held that the order passed by the courts below called for interference in appeal.
Thus, the judgment in Kishore Kumar Khaitan (Supra) is a judgment where the grant of a mandatory interim order was under
challenge and the Supreme Court while allowing the appeal held against the plaintiff that he had failed to establish prima facie possession in his favour. While relying on the judgment the appellant seems to have completely ignored that the challenge in the present case was the refusal to pass an order of temporary injunction. It is not a defendant's appeal challenging the grant of an order in favour of the plaintiff. Had that been so and if that had 10 been the contention of the defendants that the plaintiff was not in possession of the suit property Kishore Kumar Khaitan (Supra) would have been a relevant judgment for the other side.
I for one, however, would like to approach the issue from a totally different perspective. The respondents nos. 2 to 6 in their sets of written objections to the application for temporary injunction specifically mentioned that many lineal descendants of late Munsi Hemram were alive and they had not been impleaded. In their absence no relief could be granted in favour of the plaintiff. Thus the issue has to be addressed from a much larger perspective about the frame of the suit and the maintainability of the present one as filed by the appellant in the court below. It is admitted that all the heirs of late Munsi Hemram had not been impleaded as defendants. They also have a right to be impleaded as they stand at par with the respondents nos. 2 to 6. They are necessary parties in a suit for partition. In the absence of a necessary party the suit is not maintainable unless the defect is cured.
It is a settled principle of law that an order of injunction, like all interim orders, is passed only in aid of the final order that may be passed in the suit. But where, as here, the suit itself is not 11 maintainable the court should restrain itself from passing any interim order.
A similar question cropped up for consideration before a Division Bench of this Court in the case of Sk. Riyasat Ali Vs. Sk. Safiuddin Ahamed and Others, reported in 2016 (2) ICC (cal) 1. There also the question of permissibility of granting an order of temporary injunction arose in the context of a suit for partition which cannot be maintained unless all co-sharers are joined as parties in the suit. The Division Bench specifically held that unless the transferees were made parties to the suit, the suit is not maintainable and no interim order can be passed in such a suit which prima facie appears to be not maintainable in law.
The present suit filed by the appellant is also a suit for partition. The defendants nos. 2 to 6 are not the only heirs of the late Munsi Hemram. The co-sharers have been left out. I am prima facie of the view that in their absence the suit for partition is not maintainable. If the suit is not maintainable the question of passing any order of temporary injunction does not arise. 12
I find no impropriety in the impugned order in rejecting the application of the appellant. The appeal is devoid of merits.
The appeal is dismissed.
With the dismissal of the appeal the application being CAN 8471 of 2018 has become infructuous and the same is also dismissed as such.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) I agree (Madhumati Mitra, J.)