Calcutta High Court (Appellete Side)
Subir Das & Ors vs Sailen Nandy & Ors on 22 September, 2017
Author: Aniruddha Bose
Bench: Aniruddha Bose, Arindam Sinha
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
BEFORE:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
AND
THE HON'BLE JUSTICE ARINDAM SINHA
F.M.A. No. 56 of 2017
With
CAN 11984 of 2016
Subir Das & Ors.
Versus
Sailen Nandy & Ors.
Advocates for the Appellants: Mr. Hiranmoy Bhattacharya,
Mr. Dibakar Bhattacharjee.
Advocates for the Respondents: Mr. Saktinath Mukherjee (Senior
Advocate), Mr. Anikesh Kanti Ghosal, Mrs. Chandramala Mukherjee.
Heard On : 15.05.2017, 18.06.2017, 22.06.2017 &
03.07.2017
Judgment On: 22nd September, 2017.
ANIRUDDHA BOSE, J.:-
1. The appellants assail a judgment of the Civil Judge (Senior Division) 2nd Court, Baruipur, decided on 5th December, 2016 by which their prayer for temporary injunction for maintaining status quo over the property involved in the suit has been refused. Complaint of the appellants is primarily directed against the respondent no.3. The appellants are the plaintiffs in the suit in connection with which the injunction application was taken out, and the respondent no.3 has been impleaded as the third defendant in the suit. In this judgment, however, we shall refer to the appellants and respondents as plaintiffs and defendants only, in the manner they are described in the suit for the sake of convenience. The suit-property comprises of 24 decimals of land in C.S. and R.S. dag no. 26 within C.S. and R.S. khatian no. 1292, mouza-Barhans Fartabad under Sonarpur police station in the district of 24 parganas south. The defendant no. 3 before the Trial Court claimed to have had acquired right title and interest in respect of the suit-property from its lawful owners. On the other hand, plaintiffs' contention is that the third defendant is trying to appropriate the suit property through collusion and fake transactions and making illegal construction thereon.
2. As regards source of ownership or title of the suit property, it appears that one Rakhal Das Nandy and certain other individuals had dispute with their tenants, and the former set of individuals came into possession of the suit land in pursuance of a decree passed in a civil suit instituted in the year 1931. One Harimohan Nandy, through whom the plaintiffs stake their claim in the main suit from which this appeal originates appears to have had become absolute owner of the suit property, as successor of legal heirs of Rakhal Das Nandy and others. Admitted position is that one Gour Mohan Banerjee came into possession of the suit land sometime during the fifth decade of the last century. There is dispute, however, over the manner in which he came into possession thereof and the extent of his possession. In the finally published record of rights, copy of which has been produced before us, under the heading nature of possessory right in the remarks column his name is shown as "Jordang" since 1363 of the Bengali calendar, which would correspond to 1956-57 C.E. as per the Gregorian calendar. The term "Jordang" implies forcible occupier. Harimohan was described in the same document as a "Dakhalkar", implying his status was that of a non-agricultural tenant.
3. The plaintiffs in the suit have claimed that said Harimohan died intestate on 18th May, 2016, leaving behind his two sons, Salien Nandy and Dwijen Nandy (impleaded as the first and second defendants in the suit), as also two married draughts, Rama Das and Rima Chandra. As per the pleadings in the plaint, said Harimohan had another daughter, Angurbala, who predeceased him. Said Angurbala had a son, Ajit Das. Ajit also had passed away, leaving behind his widow, Pali Das, and son - Subir Das. In this respect, the plaintiffs sought to rely on a death certificate of Harimohan Nandy issued by the Rajpur - Sonarpur Municipality, but it has been pointed out on behalf of the third defendant that such death certificate has subsequently been cancelled. The said defendant has also referred to a communication from Prodhan, Bodra Gram Panchayat, in which the said authority has denied issuing any certificate to the effect that Harimohan was cremated at the burning ghat of Bodra village.
4. The proceeding before the Trial Court out of which the appeal originates has been framed as a suit for partition and injunction, in which said Subir Das, Pali Das, Rama Das and Rima Candra have joined as plaintiffs. Apart from Sailen and Dwijen Nandy, Sunil Sen has been impleaded as the third defendant. The plaintiffs have claimed to be in joint possession of the suit land with the first and the second defendants. Grievance of the plaintiffs made out in the plaint is that those two defendants are trying to dispose of the suit-property in collusion and conspiracy with the third defendant. Specific plea of the plaintiffs as regards the incident which triggered off the suit was discovery on their part while visiting the suit property on 24th June, 2016 that the defendant no. 3 was trying to make forcible construction thereon simultaneously with setting up a boundary wall. The plaintiffs have stated in the plaint that thereafter they took inspection at the local registration office and found that the third defendant had purchased the suit-property from legal heirs of said Gour Mohan against deed no. 5709/2010. So far as interest of Gour Mohan in the suit-property is concerned, the plaintiffs' case is that while their predecessor Harimohan was in possession thereof, he had inducted Gour Mohan as a licencee under him in respect of one shop room only and subsequently the legal heirs of said Gour Mohan had surrendered their right in the said shop room in favour of Harimohan on 2nd July, 2009. In support of this contention, the plaintiffs have relied on a notarized deed of surrender. On the question of recordal of name of Gour Mohan as forcible occupier in respect of the suit property, submission of Mr. Hiranmoy Bhattacharya, learned counsel appearing for them is that this was a case of erroneous recordal. Mr. Bhattacharya has submitted that the suit being in respect of partition of property and injunction, nature and character thereof ought to be preserved, for otherwise even if the plaintiffs ultimately succeed, the reliefs claimed by them would become incapable of being granted. The authorities relied upon in support of this submission are Gangubai Vs. Sitaram ( AIR 1983 SC 742), Dalpat Kumar Vs. Prahlad Singh (AIR 1993 SC 276), Mahakarwal Khewaji Trust Vs. Baldev Dass [(2004) 8 SCC 488], Israeli Vs. Shamser (19CLJ 47), Kishan Kanwar & Ors. Vs. Ajay Tewari & Ors [2004 (2) CHN 238] and an unreported judgment an Hon'ble Single Judge of this Court in C.O. No.582 of 2014 in the case of Parimal Dey Vs. Anita Agarwal & Ors. (decided along with C.O. No.584 of 2014 and C.O. 583 of 2014 on 18th June 2014). These are all authorities for the proposition of law that if in a case of this nature construction is allowed to be permitted, and the suit is ultimately decreed in favour of a plaintiff claiming title and possession, the situation would become irreversible. On this reasoning, Mr. Bhattacharya sought invalidation of the order of the Trial Court and imposition of restraint order on construction by the third defendant.
5. The first two defendants have not been served notice of this proceeding. They were not before the Trial Court also. Mr. Saktinath Mukherjee, learned Senior Counsel has appeared for the defendant No.3. He has denied in substance existence of the defendant nos. 1 and 2 and referred to certain documents to demonstrate that these two defendants do not exist at their address given in the plaint by the plaintiffs. We shall describe these documents later in this judgment. Mr. Mukherjee's case is that his client has acquired right, title and interest in the suit-property from the legal heirs of Harimohan as well as from the legal heirs of Gour Mohan. The deed of conveyance with the former set was executed on 19th May 2010. The defendant no. 3 has primarily stressed on their title on the basis of the deed executed on 19th May, 2010. He has also brought to our notice a deed executed on 2nd September, 2009 by which twenty four individuals representing themselves as successors of Harimohan have conveyed their entire interest in the subject-land in favour of the third defendant. Mr. Mukherjee has also argued, based on certain statutory provisions, that Gour Mohan, in the capacity of a forcible possessor had acquired title over the suit and the original non-agricultural tenant had no surviving right or claim over the property.
6. Mr. Mukherjee has drawn out attention to certain earlier litigations involving the same land. Two suits were instituted by certain individuals, claiming to be successors of Harimohan against Gour Mohan Banerjee and others in the 2nd Court of Munisiff, Baruipur. The case of the third defendant is Harimohan had passed away on 16th July, 1956. To demonstrate that Harimohan could not have been alive till 1916, which is the plaintiffs' case, Mr. Mukherjee has referred to the death certificate of one Ramkali Nandy, showing his date of death to be 8th January, 2013. His age at the time of his death has been shown to be 83 years and his father's name is described in the certificate as late Harimohan Nandy. Another death certificate has been relied on, that of Satyakali Nandy, who died on 5th June, 1996. His father's name is also recorded as late Harimohan Nandy. T.S. no. 58 of 1958 was instituted claiming declaration of title of the plaintiffs upon the suit land and also for recovery of possession. In this suit, the subject property was Dag No. 26 of khatian no. 1293. In the second suit, registered as T.S. 59 of 1959, claim of the plaintiffs was for declaration of title as also permanent and mandatory injunction in respect of plot no. 26 measuring 26 decimals appertaining to khatian no. 1292. The suit-property corresponds to description of land which is the subject of the present proceeding. In T.S. 59 of 1959, plaintiffs claimed that the defendants therein were licencees and the licence of the defendants was revoked by a communication sent by registered post. The defendants in both the suits contested plaintiffs' title. It was also asserted that the defendants were in possession of land for nearly 27 years prior to institution of the suits and on that count, the defendants contended, the suit was barred by limitation. On 25th June, 1968, both the suits were disposed of by a common judgment. The Trial Court found title of the plaintiffs was proved and as per finally published khatian, the defendants had been in permissive possession of plot no. 26 and in forcible occupation of plot no. 26/1987 since 1363 B.S. (1956-57). In appeal, the first Appellate Court, however, found that the plaintiffs had failed to establish their title to the disputed plots and the suit was barred by limitation. The dispute eventually reached this Court on Second Appeal. A learned Single Judge of this Court, by a common judgment delivered in S.A. Nos. 866 and 867 of 1976 dismissed both the appeals, holding:-
"I have already decided that the defendant has failed to show that he acquired a right over the suit plots by adverse possession, as no specific time for such adverse possession was mentioned and there was no evidence to establish the specific time. But still then I find that I cannot disturb the ultimate finding of the learned first appellate court that the suit should be dismissed, in view of the fact that the plaintiffs were not in a position to establish their right, title and interest over the suit properties.
The learned appellate court below rightly pointed out in the judgement that in the original C.S. Khatian no. 1293, the entire disputed plot No. 26 was recorded in the name of one Debendra Nath Sarkar and others as tenants under Rakhal Das Nandi and others. In that Khatian, one Rakhal Das Nandy, Manik Nandy were recorded as landlords. In the revisional settlement record of rights, the disputed land was shown in the plot no. 26, the subject matter of dispute in T.S. 58/58, Plot No. 26/1987 which is the subject matter of dispute of the other suit, the learned appellate court further found that the plaintiffs sought to trace their title to the suit land through Nandi Babus whose names were recorded in the C.S. and R.S. record of rights. But there is no cogent evidence to show how the interest of Nandi Babus in respect of the suit lands devolved upon the present plaintiffs. I do not find any adequate reason to disturb such a finding along with the specific finding about the names of Haricharan and Harimohan Nandy of which I have already mentioned.
Thus I find that the present appeals filed by the plaintiffs should be dismissed. Accordingly, the Appeals being S.A. Nos. 866 and 867 both of 1976 are hereby dismissed. The judgement and decree of the learned appellate court below are hereby affirmed. Having regard to the facts and circumstances of the case I make no order as to costs."
7. Mr. Mukherjee, has taken us through the provisions of Section 3A of the West Bengal Land Reforms Act, 1955 which has been given retrospective effect from 9th September, 1980. The said provision stipulates:-
3A. Rights of non-agricultural tenants and under-tenants in non-agricultural land to vest in the State.- (1) The rights and interests of all non-agricultural tenants and under-tenants under the West Bengal Non-Agricultural Tenancy Act, 1949 (West Bengal Act XX of 1949) shall vest in the State free from all encumbrances, and the provisions of section 5 and 5A of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) shall apply, with such modifications as may be necessary, mutatis mutandis to all such non-agricultural tenants and under-tenants as if such non-agricultural tenants and under-tenant were a raiyat. Explanation.- Nothing in section 5 and 5A of the West Bengal Estates Acquisition Act, 1953 shall be construed to affect any way the vesting of the rights and interests of a non-agricultural tenant or under-tenant under the West Bengal Non- Agricultural Tenancy Act, 1949 in the State under sub-section (1) of this section. (2) Notwithstanding anything contained in sub-
section (1), a non-agricultural tenant or under-
tenant under the West Bengal Non-Agricultural Tenancy Act, 1949, holding in his khas possession any land to which the provisions of sub-section (1) apply, shall, subject ot the other provisions of this Act, be entitled to retain as a raiyat the said land which together with other lands, if any, held by him shall not exceed the ceiling area under section 14M.
(3) Every intermediary, -
(a) whose land held in his khas possession has vested in the State under Sub-section (1), or
(b) whose estates or interests, other than land held in his khas possession, have vested in the State under sub-section (1), shall be entitled to receive an amount to be determined in accordance with the provisions of section 14V.
(4) The provision of this section shall not apply to any land to which the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (West Ben. Act XXXII of 2001), apply.
(5) This section shall be deemed to have come into force on and from the 9th day of September, 1980."
8. His submission is that only those non-agricultural tenants who were in khas possession became entitled to retain their land and other lands stood vested in the State as per this statutory provision. Our attention has also been drawn to a memorandum bearing no. 26/4794C/94 issued by the Government of West Bengal on 19th September, 1994 providing for recording the names of adverse possessors and their purchasers in the front page of L.R. Khatian. This memorandum was issued on 19th September, 1994. On this basis, Mr. Mukherjee submits that Harimohan or his successors as non-agricultural tenants obviously were not in khas possession of the subject-land and accordingly their right, title and interest over the land stood extinguished with effect from 9th September, 1980. On this point, the decisions relied upon by him are cases of State of West Bengal Vs. Karan Singh Vinayak [2002(4) SCC 188] and Benode Behari Ghosal Vs. Shew Kamal Singh [1983(II) CHN 98].
9. Main thrust of Mr. Mukherjee's submission is on his client's right, title and interest having been acquired from Gour Mohan. He has referred to the following part of the aforesaid memorandum dated 19th September in which the manner in which the claims of Jordhong possessor claiming to be in adverse possession shall be dealt with:-
"Problem Solution
1.Some adverse possessers 1. As per article
Recorded in the then Col.-23 64 of Limitation
of R.S. record of rights are we may record
still occupying the land the adverse
whether their names possession for
should come in the front more than 12
page of L.R. Records with years without
title and share. Any
interruption.
Since recording
their names in
Col-23 or 16 of
R.S. record of
rights."
10. It is the also the case of the defendant no. 3 that the plaintiffs are imposters misrepresenting themselves to be the legal heirs of Harimohan and plaintiffs have mischievously set up defendant nos. 1 and 2 as the sons of Harimohan. Specific case of the third defendant before the Trial Court was that there is no existence of defendant nos. 1 and 2. In this regard Mr. Mukherjee has brought to our notice that a sealed envelope sent to the address of the first two defendants as indicated in the cause title to be "Jamgram, Pandua Hooghly, Pin 712146" had returned unserved with a postal remark not-known. A copy of a certificate issued by the upopradhan, Jamgram, Mondlai, gram panchyat, dated 23rd August, 2016 in which residence of these defendants as sons of late Harimohan Nandy had been disputed. The third factor which was considered by the Trial Court was a reply to a query under the Right to Information Act, dated 31st August, 2016, in which the SPIO & Dy. DP & RDO, Hooghly has informed that "the names of Sailen Nandi & Dwijen Nandi, both sons of Late Harimohan Nandi, do not exist in the current electoral role". This aspect was examined by the Trial Court while rejecting the prayer of injunction. It has also been contended by Mr. Mukherjee that the deed of surrender of licence is not a valid instrument for transferring the right of the successors of Gour Mohan, as this was not a registered document.
11. All these points were urged before the Trial Court. The Trial Court considered the certificate of Harimohan of the plaintiffs showing the date of death as 18th May, 2016 as also other materials. Among the documents the Trial Court considered were the certificate death of Sarojini Nandy dated 9th June, 2015 and also the death certificate of death of Satyakali Nandy dated 10th June, 1996 issued by Chandannore Municipal Corporation. In the latter the father's name of the deceased appears as Late Harimohan Nandy. On the question death of Harimohan Nandy the Trial Court observed:-
"2.5. No doubt, this Court is to keep this controversy open for its adjudication at trial. It is also to be left for its adjudication in suit as to whether Harimohan Nandi referred by the both the parties are same & identical person or not. All that is important to point out is that, admittedly the original certificate of death (having registration no. 211/2016) has been cancelled by the authority of Rajpur-Sonarpur Municipality by which it was issued. The rival certificates dated 08.06.2016 & 08.07.2016 issued by the Prodhan, Bodra GP nullify each other. This Court feels quite insipid to ponder over any of these certificates, at this stage. 2.6. What is very significant? Plaintiffs case speaks for the residence of Harimohan Nandi at Bodra for last 50 years and prior to that he was an inhabitant of Jamnagar, Pandua, Hooghly. If the person Harimohan Nandi, suggested by the plaintiffs, resided at Bodra, Bhangore 24 Paraganas (south) for last 50 years then he must have some documents with regard to his existence during this long 5 decades at Bodra, 24 Paraganas (South). Unfortunately, not a single document is produced by the plaintiffs, in this regard.
2.7. It is very exasperating that a person, who resided in an area for about 50 years, has only his 'certificate of death' in proof of his residence in that area. On the contrary, the reply under RTI Act (Memo no. I/ERO/139-Canning Purba dated 13.07.2016) says that Harimohan Nandi is neither a resident nor an elector of Part No. 75 under 139 Canning East Assembly Constituency. It is not the case of the plaintiffs that Bodra, Bhangore, 24 Paraganas (South) does not fall within 139 Canning East Assembly Constituency.
2.8. This apart, what is before this Court, at present? The person referred by the defendant no. 3 as Harimohan Nandi is said to have died on 16.07.1956. The documents produced by the defendant no. 3 prima-facie speak volume over this fact. It is also the case of the plaintiffs that Harimohan Nandi, whom they referred, was an inhabitant of Jamnagar, Pandua, Hooghly. What the plaintiffs could do? By producing any document as to the existence of their Harimohan Nandi after 1956 till 2016, they can prima-facie prove their case to the effect that 'Harimohan Nandi' of the defendant no. 3 is not the person whom they bring up. The plaintiffs failed to do so. The defendant no. 3 has also contended that one Sarojini Nandi was the wife of Harimohan Nandi. The certificate of death of said Sarojini Nandi also speaks that at the time of her death (1973), Harimohan Nandi, her husband, was dead. Curiously, even in their affidavit-in-reply the plaintiffs have not ventured to disclose the name of wife of Harimohan Nandi whom they suggest. Was the wife of plaintiffs' Harimohan Nandi predeceased her husband? It is curious enough that the plaintiffs remain completely silent, in this regard, even in the event of deriving their interest from their 'Harimohan Nandi'." (quoted verbatim)
12. Elaborate argument was advanced by Mr. Mukherjee on Gour Mohan having acquired title to the property on the basis of extinguishment of title of the successors of Harimohan and Gour Mohan's continuous possession since the year 1957, through self and his successors. First Mr. Mukherjee has taken us through the decision in the two suits instituted in 1958 and 1959 by the learned Single Judge of this Court. Possession of Gour Mohan stood established in the said two suits. The case of defendant no. 3 is that such possession subsequently got perfected into title on the basis of the aforesaid memorandum from which we have quoted, before Gour Mohan's possession was conveyed in the year 2010. The alternative submission of Mr. Mukherjee is that Gour Mohan otherwise also acquired title by adverse possession after completion of 12 years from 1363 B.S., which would correspond to 1956-57 C.E., with effect from the date of commencement of his act of trespass. In this regard Mr. Mukherjee has referred to Section 27 of the Limitation Act, 1963 which stipulates:-
"27 Extinguishment of right of property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
13. Referring to these provisions, contention of Mr. Mukherjee is that the extinguishment of title under Section 27 of the 1963 Act simultaneously creates title in favour of the person in adverse possession with effect from the date of trespass. He has relied on the following passage from Rustomji on "The Law of Limitation and Adverse Possession, (8th Edition of 2001)":-
"The extinguishment of right under sec. 27 takes effect retrospectively, so as to preclude the quondam true owner from suing for recovery of any rents and profits derived by the trespasser from the property before the extinguishment of right, though within the ordinary period of limitation. When the statutory period for acquiring title by adverse possession has completely run, the title thereby acquired is deemed to have been acquired as from date when adverse possession commenced, and not from the last day of the statutory period of limitation."
14. Mr. Bhattacharya, on the other hand argued relying on a judgment of the Supreme Court in the case of Bhudan Singh & Anr. Vs. Nabi Bux & anr. (AIR 1970 SC 1880) to contend that to come within the ambit of holding, it should mean lawfully held, with actual possession and legal title. According to him, Gour Mohan's right cannot accrue on the basis of Section 3A of the 1955 Act as his was not lawfully held title with actual possession. On the question of vesting of the suit land under Section 3A of the 1955 Act, Mr. Bhattacharya has submitted that Section 14V of the West Bengal Land Reforms Act 1955 has been held to be ultra vires by a Division Bench of this Court in the case of Paschimbanga Bhumijibi Krishak Samity Vs. State of West Bengal & Ors. [(1996)2 CALLT 183] and though there is an order of the Hon'ble Supreme Court staying the operation of order passed in the aforesaid decision, the Bench decision of this Court still holds the field. On this point, he has cited a judgment of a Coordinate Bench of this Court in the case of Pijush Kanti Chowdhury Vs. State of West Bengal & Ors. [(2007)2 CALLT 577]. According to him, vesting of the estate of Harimohan could not have had taken effect because of said decision in Paschimbanga Bhumijibi Krishak Samity (supra). In support of this contention he has also relied on an unreported Bench judgment of this Court in S.A. 543-44 of 1971 decided on 11th June, 2002, Shrimati Ayesha Khatoon & Anr. Vs. M/s. Sanganeria & Company Pvt. Ltd. & Anr. as also decisions of this Court in the cases of Niranjan Chatterjee & Ors. Vs. State of West Bengal & Ors. [(2007)3 CHN 683], Krishna Mitra Chowdhury & Ors. Vs. State of West Bengal (unreported, dated 26.11.2013) and Prafulla Kumar Maity Vs. Amal Krishna Mishra & Ors. [(1998)1 CALLT 104].
15. Mr. Bhattacharya, has also submitted that State is not a party to this litigation and in absence of State from the suit, this point ought not to be determined. We accept Mr. Bhattacharya's submission on this count that at this stage we cannot decide the question as to whether Gour Mohan had acquired title over the property because of vesting of the subject land in State. We cannot hold a mini trial at this stage, as held in the decision of the Hon'ble Supreme Court in Anand Prasad Agarwalla Vs. Tarkeshwar Prasad (AIR 2001 SC 2367). State's presence would be necessary, in our opinion, for determining the question as to whether the suit land stood vested in terms of Section 3A of the 1955 Act or not. In an appeal against a decision refusing to grant interim injunction, we decline to address the question of vesting of land in question and acquisition of title by Gour Mohan or his successors on the basis of operation of Section 3A of the 1955 Act. For this reason, we also do not consider it necessary to deal with various decisions cited as regards present status of vesting in terms of the aforesaid provision of the 1955 Act.
16. Now we shall test the comparative strength of the cases of the plaintiffs and defendant no. 3 at the interim stage. Our scope of enquiry specifically would be on the question as to whether the Trial Court has rightly exercised its discretion in refusing to grant interim injunction. The plaintiffs are claiming through Harimohan Nandy, and it is admitted that a person by that name was the original owner of the suit-property. The defendant no. 3 also accepts Harimohan as the original owner thereof and the claim of the defendant no. 3 has its root in the acts or omissions of Harimohan and his successors, but this is not the same Harimohan through whom plaintiffs are claiming title to the suit land. The successors of plaintiffs' Harimohan surfaced in the year 2016 in public records with a 'notarial deed of surrender' which is dated 2nd July, 2009. We find from the judgment of the Trial Court that the Government rent receipt and municipal tax receipt produced by the plaintiffs were for the last part of the month of June 2016. The defendant no. 3, however, produced Government rent receipts and municipal tax receipts for the year 2009 onwards, as is recorded in the judgment of the Trial Court.
17. The Trial Court also examined the aspect of plaintiffs' claim that the municipal register showed recording of separate holding in their names under holding no. 4964 whereas the defendant no. 3 had produced the relevant document showing holding no. 1312. It was also demonstrated by defendant no. 3 prima facie that holding no. 4964 had been cancelled by the municipal authority, though that question, we are informed by Mr. Bhattacharya, is still pending for adjudication in a writ proceeding instituted in this Court. The Trial Court made following observations as regards quality of the documents produced by the respective parties as well as their conduct. The following passage of the judgment of the Trial Court is relevant in this regard:-
"2.1. At the risk of repetition this Court reiterates that the documents produced by the plaintiffs do not show their effort in enjoying the suit property since 02.07.2009 till June 2016. The suit was filed on 01.07.2016. The dormancy on the part of Harimohan Nandi (who was allegedly alive till
18.05.2016) for near about 07 years (July 2009 to May 2016)and the story of sudden vigil attitude of the plaintiffs, within a very short period of alleged death of Harimohan Nandi, is, no doubt, better to taste but bitter to swallow.
What they did during July 2007 to May 2016?
Had they been vigil about the suit property they could have paid rents/taxes to the concerned authority even during the alleged lifetime of Harimohan Nandi. On the contrary, the receipts showing the payments of Municipal taxes & Government rents, during that period, are forthcoming from the side of the defendant no. 3.
The plaintiffs, who claimed to be the owners of the suit property, sat completely idle over their alleged claim during that period and allowed another pay the rents and/or taxes, for reasons best known to them."
18. There was dispute in the two suits filed in 1958 and 1959 as to whether Harimohan was also known as Haricharan Nandy or not. The learned Single Judge in the judgment in Second Appeal did not accept that they were the same person. But that fact is not of material significance so far as this proceeding is concerned. It is not in dispute that Gour Mohan was in occupation of the land involved in those suits. Claim of defendant no. 3 is primarily founded on said Gour Mohan's rights. The doubt expressed by the Trial Court in the above quoted passage from its judgment appears to be legitimate to us. The Trial Court had considered the prima facie evidentiary value of the competing documents produced before it and found the case weighed in favour of the defendant no. 3 on that count. To prove that the plaintiffs are descendants of Harimohan, the voter identity cards of plaintiff nos. 3 and 4 were produced showing the name of their father as Harimohan. The Trial Court, while considering these identity cards observed:-
"Therefore, the documents remain in the hands of the plaintiffs are the voter identity cards of plaintiff nos. 3& 4 showing the names of their father as Harimohan Nandi. Are those voter identity cards sufficient to prove their strong prima facie case to go for trial? If the answer comes in an 'affirmative' then, in all cases, the grant of temporary injunction should be a matter of course; but the law does say otherwise. This Court also asked Learned Advocate for the plaintiffs as to whether his client is ready & willing to make any security deposit so that the defendant no. 3 can be compensated if his clients' case is found baseless at the end. Learned Advocate for the plaintiffs answered in the negative."
19. We are satisfied with the Trial Court's underlying reasoning that the weight of evidence produced at this stage is in favour of the defendant no. 3. Conduct of the parties is relevant material for considering a case for injunction, as held in Mandali Ranganna & Ors. Vs. T. Ramachandra & Ors. [(2008)11 SCC 1], and we have already referred to the observation of the Trial Court as regards conduct of the parties. But Mr. Bhattacharya has argued that in the event a triable case is made out, particularly in relation to immovable property in respect of which effect of not granting an order of injunction would result in change of character of the land, an order of status quo for preserving the nature and character of the land should automatically follow. Mr. Bhattacharya has laid stress on irreversibility of the situation in the event construction is allowed to be continued.
20. But none of the authorities referred to by him lay down in absolute term that in any dispute relating to immovable property, temporary injunction would automatically follow to preserve the nature and character of the property. The plaintiff in such a situation will have to muster the test of having built up a prima facie case. In a case of this nature, where the evidence produced weighs heavily in favour of the person who intends to change the nature and character of land, the quality of evidentiary materials produced at the interim stage has to be examined. In our opinion the evidence of defendant no. 3 is of far better quality than that of the plaintiffs and the plaintiffs have failed to make out a prima facie case. On the question of balance of convenience and/or inconvenience, we will have to consider potential injury that may be caused to the 3rd defendant if he is not permitted to enjoy the suit property. In this respect, ratio of the decision in the case of ECE Industries Ltd. Vs. S.P. Real Estates Developers P. Ltd. [2009(12) SCC 773] is relevant. We are of opinion that the Trial Court had adopted the correct approach in asking the plaintiffs as to whether they were ready and willing to make any security deposit while considering the question of granting of temporary injunction. We have reproduced the observations of the Trial Court on this point in preceding part of this judgment. As the plaintiffs were not willing to make security deposit the prayer for interim order was refused. We do not find any fault in the order of the Trial Court, in taking such a course.
21. We are also of the view that the plaintiffs' interest in the suit property has to be protected pending final outcome of the suit and in the event the plaintiffs ultimately succeed in proving their title, the defendant no. 3 should restore the property to the plaintiffs in its original condition as it existed on the date of institution of the suit. This direction would address the point of irreversible loss and injury being caused to the suit-land if the defendant no. 3 is permitted to carry on construction. The defendant no. 3 shall not be entitled to claim any equity in his favour if the plaintiffs ultimately succeed in the suit. We accordingly dispose of the stay petition sustaining the Trial Court's order to the extent the prayer for interim injunction was refused. We, however, direct that any construction made by the defendant no. 3 during pendency of the suit shall be subject to final outcome thereof and in the event the defendant no. 3 seeks to alienate or create third party right in any form whatsoever in respect of the suit property during the interim period, pending disposal of the suit, he shall intimate in writing to the person in whose favour such right is being created or sought to be created about pendency of the suit and such written communication must also specify the directions contained in this judgment. We also direct the State of West Bengal to be added as a defendant in the suit as in our opinion, their presence is required for effective adjudication of the suit. The judgment and order of the Trial Court stands modified to the above extent. As we have not called for any affidavit in the stay petition, the allegations made therein shall be deemed to have not been admitted.
22. As we have already observed, the first two defendants have not been served notice of this proceeding. Mr. Bhattacharya submits that the plaintiffs are not claiming any relief against these two defendants and they do not want to proceed against them so far as the present proceeding is concerned. These two defendants did not appear before the Trial Court. Mr. Bhattacharya seeks dispensation of service of notice of appeal as against them. Mr. Mukherjee, learned Senior Counsel appearing for the defendant no.3 has waived service of notice of appeal. The said two defendants have not appeared in the Trial Court, we are apprised by Mr. Bhattacharya. We are also informed by Mr. Bhattacharya that the defendant nos. 1 and 2 have not appeared in the Court of First instance. In such circumstances, as the plaintiffs/appellants have prayed for dispensation of service upon the defendant nos.1 and 2, the appeal became ready for hearing. We accordingly dispose of the appeal itself as no purpose would be served in keeping the appeal pending.
23. We request the Trial Court to conclude hearing of the suit within a period of six months. The department shall communicate this order to the Trial Court forthwith.
24. There shall be no order as to costs.
25. Urgent photoshat certified copy be given to the parties expeditiously, if applied for.
(ANIRUDDHA BOSE, J.) I agree:
(ARINDAM SINHA, J.)