Jharkhand High Court
Deba Prasad Chakraborty & Ors vs State Of Jharkhand & Ors on 31 August, 2013
Equivalent citations: 2013 (4) AJR 401
Author: P.P. Bhatt
Bench: P.P. Bhatt
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(C) No.2140 of 2012
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Deba Prasad Chakraborty & Ors. ... Petitioners [In W.P. (C) No. 2140 of 2012]
-V e r s u s-
The State of Jharkhand & Others .... Respondents [In W.P. (C) No. 2140 of 2012].
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For the Petitioners : - M/s. Joydeep Sen, Rajarshi Chatterjee,
Dhananjay Banerjee, Piyush Chitresh and Vishal Singh, Advocates.
For the Respondents: - M/s. Mahesh Tiwari, S. N. Das and Niranjan Singh, J.C. to S.C. (L&C), Advocates.
with
M.A No. 35 of 2012
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Zila Parishad, Dhanbad & Anr. ... Appellants [In M.A No. 35 of 2012]
-V e r s u s-
Deba Prasad Chakraborty & Ors. ... Respondents [In M.A No. 35 of 2012]
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CORAM: - HON'BLE MR. JUSTICE P.P. BHATT.
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For the Appellants : - M/s. Mahesh Tiwari, S. N. Das and Niranjan Singh, Advocates.
For the Respondents: - M/s. Joydeep Sen, Rajarshi Chatterjee,
Dhananjay Banerjee, Piyush Chitresh and Vishal Singh, Advocates.
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C.A.V. On : - 14.06.2013 Delivered On : - 31/08/2013
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34/31.08.2013The petitioners by way of a writ petition being W.P.C. No. -2140 of 2012 under Art. 227 of the Constitution of India have prayed for issuance of appropriate writ/order quashing and setting aside the order dated 13.01.2012 passed by the Learned Civil Judge (Senior Division) 5th Dhanbad in T.S. No. - 72 /06 whereby the Leaned Court below dismissed the application of the plaintiff under Order 39 Rule 1 and 2 r/w Section 151 of the Code of Civil Proceedure.
2. Miscellaneous Appeal being M.A. No. - 35 of 2012 filed by the Appellant (original defendant) for expunging some part of the order dated 13.01.2012 on the ground that while disposing of the application under Order 39 rule 1 and 2 r/w Section 151 of the Code of Civil Procedure arrived at various conclusive findings which are not the prima facie finding and will highly prejudice the defendant.
3. Both the matters are arising out of a common order and involved similar question of law hence they are being decided by this common order.
4. Heard counsel for the parties at length and perused the record of the case.
5. The brief facts giving rise to the present petitions are that in the year 1933 Manbhum District Board auctioned a plot identified as D.B. Plot No.1 within C.S Plot No.266 and One Hari Shankar Worah and his associates through benamdar namely Prabhu Lal Pran Jiwan Pathak bid for the same. By registered deed of settlement being Deed No. 1755 dt. 16-04-1934 for salami of Rs. 5000/- Manbhum District Board settled the land in favour of Prabhu Lal Pran Jiwan Pathak. After the death of Prabhu Lal Pran Jiwan Pathak, his legal heirs executed a deed of disclaimer of title in respect of the said land and declared Hari Shankar Worah, Kripa Shankar Worah and Norbhe Ram G. Chanchani as owner of the said plot. In the year 1949, Hari Shankar Worah settled the 2 land in Trust and he became the trustee and empowered to alienate and/or dispose of the said land. Hari Shankar Worah conveyed the property to M/S Hari Shankar Worah Pvt. Ltd. by a registered sale deed in the year 1963 and accordingly possession also delivered to the said company. M/S Hari Shankar Worah (Properties) Pvt. Ltd. thereafter incorporated as H.W. Builders Ltd. Thereafter H.W. Builders Ltd. vide several registered deeds of sale dt. 24-04-1998 sold the land to the petitioners and the petitioners constructed a commercial complex after sanctioning the plan form the Mineral Area Development Authority (MADA).
6. Dispute arose in the year 2005 when the petitioner received a notice by the Deputy Commissioner cum Chief Officer, Zila Parishad, Dhanbad under reference no. 839 dt. 31-08-2005 by which the petitioner was directed to remove the encroachment upon the said plot within 15 days of the receipt of the notice. Petitioner challenged the aforesaid notice by filling writ petitions being W.P.(C) No. 5244 of 2005 and W.P.(C) No. 5918 of 2005 and the said Writ petitions were disposed of by observing that the disputed question of fact cannot be decided in Writ jurisdiction and the petitioner may move before the Civil Court of competent jurisdiction. Being aggrieved by the said order, the petitioner preferred L.P.A No. 185 of 2006, in which the appellants were asked to file civil suit. Accordingly, the petitioners preferred a Title Suit being T.S. No. 72 of 2006 for declaration of the title of the petitioner in the said plot. During the pendency of the suit the Circle officer, Dhanbad started a proceeding under The BPLE Act vide Encroachment Case no. 01/2006-2007 and issued notice to the petitioner under Sec. - 3 of the Act for removal of the encroachment. The petitioner appeared in the said case and represented about pendency of the suit and considering the said fact the proceeding stayed by the authority. Another proceeding under BPLE Act was instituted being Encroachment Case 12 (iii)/08-09 and again the petitioner was directed to appear and show the document relating to the title of the petitioner upon the said land. The petitioner challenged the said notice by preferring writ petitions being W.P.(C) No. 1657 of 2011 and W.P.(C) No. 1686 of 2011 but subsequently the said writ petitions were withdrawn. By a public notice published in local newspaper "Prabhat Khabar" the petitioner and their co-sharers were directed to vacate the premises within 24 hours. The petitioner alongwith the other co- owners made representation against the said notice before the Deputy Development Commissioner cum Chief Executive of Dhanbad Zila Parishad, Estate Officer and the District Engineer but inspite of that the shop owners and occupier of the building ousted from the building. Against the said action, a Writ petition being W.P.(C) No. 1932 of 2011 filed and the same was heard along with W.P.(C) No. 2687 of 2011 and W.P.(C) No. 2688 of 2011 and all the aforesaid writ petition were dismissed by the Hon'ble High Court and against the dismissal order an L.P.A No. 269 of 2011 was filed in which the Hon'ble Division Bench directed the petitioner to prefer an injunction petition before the lower court on the ground of subsequent development.
37. Accordingly the petitioner preferred an application under Order 39 Rule 1 & 2 read with Section 151 of C.P.C. in the T.S. No. 72 of 2006 before the learned lower court and the court below by an order dt. 13-01-2012 dismissed the injunction petition by assigning reason that no irreparable injury will cause to the petitioner even if it is found that prima facie case and balance of convenience is in favour of the petitioner.
8. The learned counsel for the petitioner while referring the order passed by the learned court below submitted that : -
(i) Admittedly, the respondents sealed the suit property during pendency of the instant suit,
(ii) The petitioners were in the possession of the suit property before sealing of the same by the Dhanbad Zila Parishad,
(iii) The sealing of the suit property by the respondents during the pendency of the title suit is illegal,
(iv) In order of the Hon'ble High court of Jharkhand it has been directed that in sub-judice matters the occupants should be removed and the State Govt. or the Zila Parishad can take possession of such property where lis in pending,
(v) The respondents have with mala fide intent wrongly sealed the property of the petitioners under the garb of the order passed by the Hon'ble High Court of Jharkhand in the public interest litigation,
(vi) The respondents had no authority to nullify the settlement made in respect of the suit land and only the competent court could nullify the said settlement,
(vii) The actions of the respondents in sealing the suit property is thoroughly unconstitutional and illegal,
(viii) The respondents have admitted the possession of the petitioners over the suit property and that the petitioner had prima facie case,
(ix) The petitioners have constructed a commercial complex on the suit land in accordance with law and due to dispossession from the said suit property, the petitioner have suffered loss and inconvenience and the balance of convenience lies in favour of the petitioners,
(x) The petitioners have suffered irreparable loss due to the dispossession from the suit property.
It is further submitted that in spite of the aforesaid finding recorded in the order, the learned court below opined that no irreparable loss will cause to the petitioner and on this ground alone dismissed the injunction petition hence the leaned court below has not exercised the jurisdiction properly.
It is further submitted by the learned counsel for the petitioner that the learned court below by holding that the petitioner will not suffer irreparable losses and injuries, 4 totally ignored the materials on record that due to the sealing of the suit property the income of the petitioner totally stopped and they are also unable to repay the huge loan of the banks which is pressing hard for the payment and may initiate recovery proceeding at any time.
The learned counsel for the petitioner also relied upon a judgment reported in (2010) 2 SCC 77, Narendra Kante Vs. Anuradha Kante wherein it is held that deprivation of enjoyment of one's own property till disposal of suit itself constitute irreparable loss and injury.
It is further submitted by the learned counsel for the petitioner that under section 151 of C.P.C the courts are very well within jurisdiction to restore possession pendent lite and to direct status quo as on the date of the institution of the suit although the petition has been filed under Order 39 rule 1 & 2.
To support the above submission the learned counsel for the petitioner referred to the following judgements:-
(i) AIR 1975 Cal 377, Ravindra Nath Vs. Jyoti Prakash, wherein it is held that even if an injunction order was passed purportedly under O.39 Rule 1 & 2 of C.P.C. though circumstance contemplate under O.39 Rule 1 & 2 did not exist such order of injunction cannot be said to be a nullity, in as much as the court had jurisdiction to pass such order of injunction U/S 151 of the C.P.C.
(ii) (2008) 4 SCC 791. Tanushree Basu Vs. Ishani Prasad Basu, wherein it is held that if a party takes recourse to any contrivance to dispossess another during pendency of suits either in violation of the order of injunction or otherwise, the court undisputedly will have jurisdiction to restore the parties back to the same position.
(iii) AIR 1975 Goa 23, Shrirang Padmanabh Vs. Mariano Fransisco, wherein it is held that the power is not covered by Order 39 of the C.P.C, but the power is considered to be inherent to be exercised for the ends of justice under section 151 of C.P.C The learned counsel for the petitioner also argued about the maintainability of appeal filed by the respondents on the ground that an order passed in exercise of power U/S 151 of C.P.C. are not appealable. He also placed reliance of some judgments in support of his submission.
(i) AIR 1975 Cal 377. Ravindra Nath Vs. Jyoti Bikash
(ii) AIR 1974 SC 1126, Smt. Ganga Bai Vs. Vijay Kumar
(iii) AIR 1953 SC 23, Keshardeo Chamria Vs. Radha Kishen Chamria The learned counsel for the petitioner also submitted that the action of the respondent by which the premises of the petitioner on the D.B. Plot No. 1 was sealed, is totally in violation of principle of natural justice and is made in an arbitrary manner.5
To support the above argument the learned counsel for the petitioner placed reliance of the following judgments :-
(i) Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao reported in AIR 1989 SC 2097, wherein it is held that when a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse of law.
(ii) Arati Gupta Vs. State of Bihar reported in 2003 (4) JCR 493 (Jhr), wherein it is held that it is settled law that when there is genuine disputed question of right, title and possession in respect of a land, it should not be determined by any authority in a summary proceeding; rather parties should be allowed to move a civil court of competent jurisdiction.
(iii) Union Club of Dhanbad Vs. State of Jharkhand & Ors., SLP (Civil) 17445, wherein it is held by the Hon'ble Apex Court opined that once a party is found to be in established possession of any State owned property or property owned by an instrumentality of the State, the owner shall have to resort to appropriate proceedings for getting the premises vacated in accordance with the procedure established by law. Neither the State or its agencies can summarily evict the occupant with the show or use of force.
Eviction of an occupant in established possession like the case at hand can be justified only if the State or its instrumentality take proceedings in accordance with the procedure established by the law.
10. As against that the leaned counsel for the respondent submitted that the Learned Court below has exceeded his jurisdiction while deciding the injunction petition. It is further submitted that the learned court below while deciding the injunction petition consider the new facts which are not mentioned or incorporated in the plaint, as such all those findings on the basis of interlocutory application which is not within the plaint, such findings touching the merit of the case in a premeditated manner at the premature stage is absolutely illegal and fit to be expunged from the record of the case. It is further submitted that the petitioner made the construction over the public land hence their earning by such process cannot be treated as an irreparable loss and injury. The learned counsel for the respondent also referred to some rulings in support of his submissions. He further submitted that in the case of Metro Marins & Ors. Vs. Bonus Watch Co. Pvt. Ltd. & Ors. reported in AIR 2005 SC 1444, it is held that granting of any interim order directing handing over of possession to plaintiff would only mean decreeing the suit even before trial.
The leaned counsel for the respondent also relied upon the judgment of Mandal Revenue Officer Vs. Goundal Venkaiah & Anr. reported in (2010) 2 SCC 461, wherein it is held that it is impossible for the State and its instrumentalities including local 6 authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeed in manipulating the State apparatus for getting their occupation/possession and construction regularised. Where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with grater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right / title of State to immovable property and give an upper hand to encroachers, unauthorised occupants or land grabbers.
The learned counsel for the respondent also relied upon a case of Mohd. Sharif Vs. ADJ No. - 2, Sikar and another, a judgment reported in AIR 2004 Rajasthan 58.
Para 4 of the judgment read as follows:-
"4. A look at the material on record reveals that the petitioner claims lawful possession over the shop in question whereas according to defendant Municipal Board Reengus, the petitioner is a trespasser. Substantial questions are required to be investigated. In cases of interlocutory injunctions in aid of the plaintiff's right, all that the Court usually has to consider is whether the case is so clear and free from objection on equitable grounds that it ought to interfere to preserve without waiting, for the right to be finally established. Where the plaintiff is asserting a right, he should show a strong prima facie case, at least, in support of the right which he asserts. Where any doubt exists as to the plaintiff's right, the Court, in determining whether an interlocutory injunction should be granted, should take into consideration balance of convenience to the parties and the nature of the injury which the defendant, on one hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden to prove that the inconvenience which the plaintiff will suffer by the refusal of injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff. The proceedings pertaining to grant of ad interim are supplemental proceedings. Main purpose of injunction is to preserve the subject matter of the suit in status quo for the time being. While disposing an application for grant of temporary injunction, the Court should not go to the extent of deciding the main case of the parties but the order should be a speaking order showing that the Court has taken a decision after applying its mind. The discretion vested in Court should be exercised on reasons and sound judicial principles."
11. Considering the aforesaid rival submissions and on perusal of the materials available on record, it appears that admittedly the respondents sealed the suit property during pendency of the suit. It appears that the petitioners were in the possession of the suit property before sealing of the same by the Dhanbad Zila Parishad. It appears that the petitioners have constructed a commercial complex on the suit land after obtaining requisite permission from M.A.D.A. It appears that while dealing with an application 7 under Order 39 Rule 1 and 2 r/w Section 151 of the Code of Civil Procedure in Title Suit No. - 72 of 2006, the Court below while dismissing the petition found that the petitioners are having a prima facie case and balance of convenience is also in favour of the petitioners but the injunction petition is rejected mainly on the ground that no irreparable injury will cause to the petitioners and the petitioners can be compensated in terms of money, if they succeed in the suit.
In this context, the learned counsel for the petitioner a referred to the judgment reported in (2010) 2 SCC 77, Narendra Kante Vs. Anuradha Kante and specially relies upon Para 28 which appears to be relevant to the fact of the present case.
Para - 28 reads as follows:-
"28. Now, coming to the question of balance of convenience and inconvenience and irreparable loss and injury, it has to be kept in mind that Respondent 10 has already acquired rights in respect of the share of Respondents 8 and 9 to the suit property and in the event an interim order is passed preventing development of the portion of the property acquired by him, he would suffer irreparable loss and injury since he would not be able to utilise the property till the suit is disposed of, which could take several years at the original stage, and, thereafter, several more years at the appellate stages."
The other decision referred to and relied upon by the learned counsel for the petitioners in the case of Ravindra Nath Vs. Jyoti Prakash reported in AIR 1975 Cal 377 is also appears to be relevant and applicable to the facts of the facts of the present case.
Para 10 and 11 reads as follows:-
"10. In the light of the above proposition it is now to be seen if the circumstances as contemplated in Rules 1 and 2 of O. 39 did exist warranting issue of injunction under provisions of Section 94 (c).It is obvious that no circumstance as contemplated in the said Rules did exist as to warrant issue of injunction under the said order in the case before us, so that it cannot be said that the injunction under Section 94 which is circumscribed to circumstances of Order 39, or any other order or rules, was or could be validly issued as was purported to be done by the trial court. Even so the trial court was not wholly without jurisdiction as it could issue injunction under Section 151 in the circumstances not covered by Order 39 or other Rules and the order of the trial court is to be taken accordingly as one under Section 151.
11. Now an order under Section 151 simpliciter is not appealable as was held in Keshardeo v. Radha Kissen, AIR1953 SC 23.It was observed that under the Code of Civil Procedure certain specific orders mentioned in Section 104 and Order 43, Rule 1 only are appealable and no appeal lies from @page-Cal 380 any other order (vide Section 105). The order made under Section 151 is not included in the category of appealable orders. In the case before us it appears to me that the order of the trial court is to be taken as an order under Section 151 and not under any other provisions of the Code, even if it was stated to be under Section 94, which was obviously an error. This error did not render the order a nullity as the trial court had the power and jurisdiction to pass such order under provisions of Section 151 of the Code."
From bare reading of these paragraphs it appears that even if an injunction order was passed purportedly under Order 39 Rule 1 & 2 of the Code of Civil Procedure, 8 though circumstances contemplate under Order 39 Rule 1 and 2 did not exist such order of injunction cannot be said to be a nullity in as much as the court had jurisdiction to pass such order of injunction under Section 151 of the Code of Civil Procedure.
In the instant case, during the pendency of Title Suit No. - 72 of 2006, the respondent-Dhanbad Zila Parishad sealed the suit property in the year 2011 under the garb of an order passed by the High Court in a Public Interest Litigation. The petitioner being aggrieved by this action of the Dhanbad Zila Parishad, moved WP(C) No. - 1657 of 2011 and WP(C) No. - 1686 of 2011 but subsequently, the said writ petitions were withdrawn. It appears that by a public notice published in the local newspaper "Prabhat Khabar" , the petitioners and their co-sharers were directed to vacate the premise within 24 hours. The petitioners along with the other co-owners made representation against the said notice before the Deputy Development Commissioner-cum-Chief Executive of Dhanbad Zila Parishad, Estate Officer and the District Engineer but in spite of that the shop owners and occupiers of the building ousted from the building. It appears that against the said action, a writ petition being WP(C) No. - 1932 of 2011 has been filed and the same was heard along with WP(C) No. - 2687 of 2011 and WP(C) No. - 2688 of 2011 and all the aforesaid writ petitioner were dismissed by the High Court and against the order of dismissal, a Letters Patent Appeal was filed in which the Division Bench of this Court directed the petitioners to prefer an injunction petition before the lower court on the ground of subsequent development. Accordingly, the petitioners have preferred an application under Order 39 Rule 1 and 2 r/w Section 151 of the Code of Civil Procedure in Title Suit No. - 72 of 2006 before the learned court below. Since the petitioners were dispossessed and their property was sealed during the pendency of the suit in the year 2011 under the garb of order passed by the High Court in a Public Interest Litigation, the petitioners filed an application under Section 151 of the Code of Civil Procedure as the petitioners have prayed for mandatory injunction for restoration of possession during the pendency of the suit.
In this context the decision cited by the learned counsel for the petitioners in the case of Tanushree Basu Vs. Ishani Prasad Basu reported in (2008) 4 SCC 791, also appears to be applicable to the facts of the present case.
Para 16 and 23 reads as follows:-
"16. It is now a well-settled principle of law that Order 39 Rule 1 of the Code of Civil Procedure (Code) is not the sole repository of the power of the court to grant injunction. Section 151 of the Code confers power upon the court to grant injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the Code. (See Manohar Lal Chopra v. Seth Hiralal2 and India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd.3)
23. It is not the law that a party to a suit during pendency thereof shall take law into his hands and dispossess the other co-sharer. If a party takes recourse to any contrivance to dispossess another, during pendency of the suit either in violation of the order of injunction or otherwise, the court indisputably will have jurisdiction to restore the parties back to the same position."9
In this case it is held that if a party takes recourse to any contrivance to dispossess another during pendency of suits either in violation of the order of injunction or otherwise, the court undisputedly will have jurisdiction to restore the parties back to the same position.
The another decision referred to and relied upon by the learned counsel for the petitioners in the case of Shrirang Padmanabh Vs. Mariano Fransisco reported in AIR 1975 Goa 23, is also relevant and applicable to the facts and circumstances of the present case.
Para 5 reads as follows:-
"5. The scope of interference under Section 115, Civil P. C. is very limited and it is no use repeating the case law on the point. In the present case there is no error of the jurisdiction inasmuch as the Court had power to grant mandatory injunction on an interlocutory application. The power is not covered by O. 39, Civil P. C. This power is considered to be inherent to be exercised for the ends of justice under Section 151, Civil P. C. (B. F. Vargese v. Joseph Thomas, AIR 1957 Trav Co 286; Nandan Pictures Ltd. v. Art. Pictures Ltd., AIR 1956 Cal 428).It is acknowledged that a mandatory injunction on an interlocutory application is granted in very rare cases and in the Travancore Cochin and Calcutta cases these injunctions had been granted to restrain (?) status quo as it stood on the date of the suit since on facts it was found that the status quo was disturbed after the institution of the suit. The principle however, that a Civil Court has jurisdiction to order mandatory injunction on an interlocutory application has been affirmed and some guidelines have been laid. Even if there is an error in following the guidelines by the Court below, it cannot be considered as an error of jurisdiction or any material irregularity i. e. the failure to abide by rules of procedure."
In this case it is held that the power is not covered by Order 39 of the Code of Civil Procedure, but the power is considered to be inherent to be exercised for the ends of justice under section 151 of Code of Civil Procedure. It also appears that the action of the respondent-Dhanbad Zila Parishad in sealing the suit property during the pendency of the suit under the garb of order passed by the High Court in a Public Interest Litigation is prima facie appears to be against the principles of natural justice.
In this context, the decision cited by the learned counsel for the petitioner in the case of Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao reported in AIR 1989 SC 2097 appears to be relevant and applicable to the facts of the present case.
Para 8 and 9 reads as follows:-
"8. Mr. Tarkunde, learned counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot 10 be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh. (1968) 2 SCR 203 at pp. 208-210 : (AIR 1968 SC 620 at pp 622-23). This Court in that judgment cited with approval the well- known passage from the leading Privy Council case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, 51. Ind App 293 at p. 299 :
(AIR 1924 PC 144) where it has been observed (p. 208) (of SCR) : (at p. 622 of AIR) :
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."
9. This proposition was also accepted by a Division Bench of this Court in Rain Rattan v. State of Uttar Pradesh (1977) 2 SCR 232: (AIR 1977 SC 619). The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all. As she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant No. 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under S. 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement between the plaintiff and defendant No. 3 amounted to a licence or a sub-lease."
In this case it is held that wherein it is found that when a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property expect by recourse of law.
Another decision given in the case of Arati Gupta Vs. State of Bihar reported in 2003 (4) JCR 493 (Jhr.) is also relevant and applicable to the facts of the present case.
Para 8 reads as follows:-
"8. It is a settled law that in cases where there is a genuine dispute of right, title and possession in respect to a land, it should not be determined by any authority in a summary proceeding. Parties should be allowed to move before a Civil Court of competent jurisdiction. Even in respect to a Government land, if a person is in possession for a long period, instead of summary proceeding one should take recourse of a Civil Court of competent jurisdiction."
In this case it is held that it is settled law that when there is genuine disputed question of right, title and possession in respect of a land, it should not be determined by any authority in a summary proceeding; rather parties should be allowed to move a civil 11 court of competent jurisdiction. In the instant case, dispute was very much pending before the competent court having civil jurisdiction in the form of Title Suit No. - 72 of 2006 and therefore, prima facie, the action of the Dhanbad Zila Parishad to seal and evict the occupiers from the suit premises during the pendency of the said suit appears to be contrary to the above referred settled position of law.
The another decision cited by the learned counsel for the petitioner is in the case of Union Club of Dhanbad Vs. State of Jharkhand & Ors. , rendered in SLP (Civil) 17445 of 2013, wherein the Hon'ble Apex Court opined that once a party is found to be in established possession of any State owned property or property owned by an instrumentality of the State, the owner shall have to resort to appropriate proceedings for getting the premises vacated in accordance with the procedure established by law. Neither the State or its agencies can summarily evict the occupant with the show or use of force. Eviction of an occupant in established possession like the case at hand can be justified only if the State or its instrumentality take proceedings in accordance with the procedure established by the law.
In the instant case, the Zila Parishad without following the procedure established by the law, sealed the property during the pendency of the suit and evicted the petitioners from the premises and therefore, when the court below found that the petitioners are having prima facie case and balance of convenience is also in their favour, the mandatory injunction, as prayed for by the petitioners ought to have been granted by the court below under Section 151 of the Code of Civil Procedure. Since the court below has declined to grant mandatory injunction, as prayed for, by the petitioners, the petitioners have approached this Court under Article 227 of the Constitution of India and therefore, looking to the facts and circumstances discussed above, as also, the settled legal position discussed in the above-referred cases, this Court is of the view that mandatory injunction is required to be granted in favour of the present petitioners and thereby the seal applied by the Dhanbad Zila Parishad is required to be removed and the possession of the petitioners is also required to be restored in the interest of justice. However, at the same point of time, the suit filed by the present petitioners being Title Suit No. - 72 of 2006, pending before the court below is also required to be expedited and it is further required to be clarified that the interim order for removal of seal and restoration of possession of the petitioners during the pendency of the suit shall be subject to the outcome of Title Suit No. - 72 of 2006 and the petitioners shall not claim any equity on the ground of removal of seal of restoration of possession ordered by this Court. The leaned court below shall decide the Title Suit independently without being influenced by the observations made by this Court which are of prima facie nature.
12. The arguments advanced by Mr. Tiwari, the learned counsel appearing on behalf of the Respondent-Dhanbad Zila Parishad that grant of mandatory injunction will emergent to allowing the suit at this juncture cannot be accepted as the relief prayed for 12 in the suit is with regard to declaration of right, title and interest in the suit property and the same is require to be decided at the end of trial after appreciation of evidence on record. In view of the facts and circumstances discussed above as well as the proposition of law, which emerges from the settled position of law discussed herein above the present petition is required to be disposed of by directing the respondent Zila Parishad to restore the possession by re-opening seals during the pendency of the suit. The learned trial court shall make endeavour for expeditious disposal of the Title Suit No. 72 of 2006. The parties to the suit proceedings shall also co-operate to the court below for expeditious disposal of the suit.
13. With the aforesaid observation this writ petition stands disposed of.
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M.A No. 35 of 2012...
14. The present Miscellaneous Appeal is preferred by the Dhanbad Zila Parishad being aggrieved and dissatisfied with the observation and findings in respect of prima facie case and balance of convenience made in favour of the plaintiff recorded by the court below while considering an application filed by the original plaintiff under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure seeking injunction/mandatory injunction against the defendant-Zila Parishad.
15. The Miscellaneous Appeal filed by the Dhanbad Zila Parishad is require to be dismissed because the observations made by the learned court below regarding prima facie case and balance of convenience are based on facts and law, which emerged from the materials placed on record and moreover this findings of fact are not required to be disturbed at this juncture as the said findings are prima facie in nature. The appellant can raise the issue, which have been raised in this miscellaneous appeal at the time of final hearing of the suit. The Miscellaneous appeal filed by the appellant-Dhanbad Zila Parishad stands disposed of with an observation that the findings recorded by the court below are prima facie in nature and these find are always subject to the result of the suit and therefore, the appellant will have an opportunity to put forward its submission which have been submitted in the present appeal at the time of final hearing of the appeal.
16. with the aforesaid observations, the appeal filed by Dhanbad Zila Parishad stands disposed of.
(P.P. Bhatt, J.) APK