Calcutta High Court (Appellete Side)
Sri Sita Ram Shaw vs Sri Radheshyam Shaw & Anr on 23 August, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 711 of 2011 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Sri Sita Ram Shaw.
Versus
Sri Radheshyam Shaw & anr.
For the petitioner: Mr. Hiranmoy Bhattacharyya, Mr. Kaushik Roy.
For the opposite party no.1: Mr. Aniruddha Chatterjee, Mr. Kushal Chatterjee.
For the opposite party no.2: Mr. Somnath Bose, Mr. Utpal Maitra.
Heard On: 17.08.2011 & 18.08.2011.
Judgement On: August 23, 2011.
Prasenjit Mandal, J.: This application is directed against the Order No.8 dated September 24, 2010 passed by the learned Additional District Judge, Barrackpore in Misc. Appeal No.36 of 2010 thereby affirming an Order No.1 dated March 10, 2010 passed by the learned Civil Judge (Junior Division), 4th Court, Sealdah in Title Suit No.69 of 2010.
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The plaintiff / opposite party no.1 herein instituted a suit for declaration and permanent injunction. The defendant / petitioner herein is contesting the said suit. At the time of filing of the said title suit, the plaintiff filed an application for temporary injunction. The learned Trial Judge granted interim order of temporary injunction. Thereafter, the defendant / petitioner herein filed a misc. appeal being Misc. Appeal No.36 of 2010 and the learned Appellate Court disposed of such misc. appeal affirming the order of the learned Trial Judge. Being aggrieved, this application has been preferred by the defendant no.1 / petitioner herein.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff / opposite party herein instituted the said Title Suit No.69 of 2010 praying for the following reliefs:-
a) A decree of declaration that the plaintiff and defendant no.1 are the joint owners of the suit property;
b) A decree for permanent injunction restraining the defendant no.1 and his men and agents from transferring by demarcating and/or handing over the possession of the suit property to any third party in any manner whatsoever;
c) For all costs;3
d) Any other relief/reliefs.
At the time of filing of the said suit, the plaintiff prayed for temporary injunction and he also prayed for ad interim injunction. The learned Trial Judge granted ad interim order restraining the defendant no.1 from transferring any defined and demarcated portion of the suit property till March 26, 2010. Being aggrieved by that order, the defendant no.1 preferred the misc. appeal being Misc. Appeal No.36 of 2010 and while disposing of the said misc. appeal, the learned Appellate Court has passed the following orders:-
"At this stage I find nothing to interfere with the order impugned. So the order no.1 dated 10-03-2010 in TS 69/10 passed by learned Civil Judge (JD), 4th Court Sealdah, restraining the appellant from transferring any defined and demarcated portion of the suit property as ad-interim injunction is hereby affirmed. But learned Court below shall dispose of the temporary injunction petition after giving opportunity to the defendant/appellant to file w/o, on its own merit. The Misc. appeal stands dismissed on contest. No order as to costs. LCR be sent down at once along with a copy of this order."
The short fact of the plaint case is that the plaintiff and the defendant no.1 are the grantees in respect of the ground as mentioned in the schedule of the plaint under the defendant no.2 under certain terms and conditions. Amongst other terms, the grantees were given the right over the ground jointly and they might possess the ground as per their convenience and even 4 partition might be done. But the grant is redeemable on one month's notice upon payment of compensation for the structure, if any and that the provisions of the Transfer of Property Act shall not apply in respect of the grant so granted in favour of the plaintiff and the defendant no.1. Accordingly, the plaintiff and the defendant no.1 possessed the property. The defendant no.1 intended to sell his portion to a third party and at that time, the plaintiff filed the said suit for the reliefs already stated. There is no doubt that the plaintiff and defendant no.1 are possessing the ground under a grant by the defendant no.1 and so, as per terms of the grant, the plaintiff and the defendant no.1 have no absolute right to the property. But they may possess the same according to their convenience subject to the terms of the grant governing the land.
Under the circumstances, when the defendant no.1 wanted to sell his portion to a third party, the plaintiff filed the suit. Thus, I find that the plaintiff has shown, prima facie, case to go for trial with the suit property. The object of granting injunction is to keep the property in status quo till the disposal of the suit. The plaintiff has shown, prima facie, cause of action to file the suit and so, if no order of injunction as prayed for is granted and if the property is transferred the interest of the plaintiff in respect of the ground in suit may be prejudiced. The status of the plaintiff and the defendant with 5 regard to the ground is nothing but co-owners subject to the grant as stated above. There is, prima facie, no evidence that the property in suit has been partitioned as yet.
Under the circumstances, the plaintiff has the right, title and interest to every inch of the ground as mentioned in the schedule to the plaint.
Therefore, I am of the view that the temporary injunction as prayed for is, prima facie, appropriate in the instant situation. The Appellate Court affirmed the order passed by the learned Trial Judge restraining the defendant no.1 from transferring any defined and demarcated portion of the suit property. The Appellate Court has also directed to dispose of the application for temporary injunction after giving an opportunity to the defendant / appellant to file a written objection, on its own merits.
Upon perusal of the plaint, it appears that the order passed is justified in consideration of the urgency as made out in the plaint case.
Mr. Somnath Bose appearing for the opposite party no.2 has contended that the grant was allowed to the plaintiff and the defendant no.1 over the ground and the grant is redeemable of one month's notice and if there is any structure, compensation may be paid as determined by the appropriate authority. He also submits that the provisions of the Transfer of Property Act, 1963 do not apply in the case of Government grant in respect of the property 6 as mentioned in the schedule to the plaint and as such, the property cannot be transferred by either of the grantees to any third party. He has referred to the provisions of Paragraph No.2.2 of the Government Grant Act, 1895 and thus, he submits that the defendant has no right to transfer the suit property. Prima facie, it appears that the plaintiff and the defendant cannot transfer the suit property to any third party and the said property is subject to the grant under the provisions of the said Act.
Mr. Somnath Bose has also referred to the decision of Chief Executive Officer v. Surendra Kumar Vakil & ors. reported in (1999) 3 SCC 555 and thus, he submits that if the property under a grant is sold to a third party without prior sanction, the opposite party no.2 is entitled to resume the property.
He has also referred to the decision of Union of India v. Harish Chand Anand reported in 1996 SC 203 and thus, he submits that the Government may take possession of the suit property after expiry of one month's notice in view of the Rules of the Grant. Thus, he submits that the grantees have no right to transfer the suit property under the provisions of the Transfer of Property Act.
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Having considered the submissions of the learned Advocates of both the sides and in view of the averment in the plaint, I am of the, prima facie, view that the plaintiff has shown prima facie case to go for trial and that there is urgency in passing the impugned order. So, the concurrent findings of the two courts below based on materials and reasoning should not be disturbed. I do not find any perversity in the impugned order. Therefore, there is nothing to interfere with the impugned order. The application fails to succeed.
It is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)