Calcutta High Court (Appellete Side)
Ratan Saha & Anr vs M/S. River Bank Holding Pvt. Ltd on 2 March, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
C.O. No. 545 of 2009
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Ratan Saha & anr.
Versus
M/s. River Bank Holding Pvt. Ltd.
For the petitioners: Mr. Swapan Kr. Mallick.
For the opposite party: Mr. Aninda Kr. Mitra, Sr. Adv.,
Mr. Abhijit Mitra,
Ms. Pooja Das Chowdhury,
Mr. Sarvapriya Mukherjee,
Mr. Ozma Naaem.
Heard On:25.02.2011.
Judgement On: March 2, 2011.
Prasenjit Mandal, J.: This application is at the instance of the
plaintiffs/respondents and is directed against the order no.3
dated February 4, 2009 passed by the learned Additional District Judge, Twelfth Court, Alipore in Misc. Appeal No.41 of 2009 reversing the order passed by the learned Civil Judge (Junior 2 Division), Sixth Court, Alipore in Title Suit No.214 of 2009 in relation to an application for injunction filed by the plaintiffs.
The short fact is that the plaintiffs became the absolute owners of the vacant lands as described in the schedule of the plaint by three kobalas upon payment of due valuable consideration. Thereafter, they advertised a public notification in the "Bartaman Patrika" dated August 2, 2005 but nobody came forward to make any claim with respect to any portion of the suit lands. Since then, they are in possession of the suit lands. Previously, some shop owners and shantis attempted to encroach the suit lands and for that reason, the petitioners had to file an earlier suit being Title Suit No.365 of 2005 before the said learned Civil Judge. During the pendency of that suit, M/s Bata India Ltd. suddenly appeared and for the first time, they made a claim to the effect that the suit lands belonged by it. Thereafter, Bata India Ltd. was added as a party defendant in the said suit.
The defendant/opposite party herein made an application for being added as a party in the said title suit being Title Suit No.365 of 2005 under Order 1 Rule 10(2) of the C.P.C. and the learned Trial Judge rejected the said application. Thereafter, the opposite party moved this Hon'ble Court by filing a C.O. No.1026 of 2008 and by an order dated April 8, 2008 the said civil revision was disposed of holding that the order of rejection of 3 the application for addition of party was proper. Then, the opposite party moved the Apex Court and the Hon'ble Apex Court allowed the application under Order 1 Rule 10 of the C.P.C. Thus, the opposite party was added as defendant in the said suit.
The contention of the opposite party is that as per tripartite agreement with the Bata India Ltd. and the Government of West Bengal, the opposite party has an interest in the suit properties for making development of the same.
The petitioners have contended that the opposite party has no right, title and interest in the suit property at all, but they are creating disturbance in the peaceful possession and enjoyment of the suit properties by the plaintiffs. For that reason, this suit was filed by the petitioners under the compelling circumstances. At the time of filing of the suit, the petitioners prayed for ad interim injunction and the learned Trial Judge granted ad interim injunction. Being aggrieved, the opposite party preferred a misc. appeal being Misc. Appeal No.41 of 2009. The learned lower appellate Court stayed the order dated January 20, 2009 over the ad interim injunction passed by the learned Trial Judge. Being aggrieved by such orders, the plaintiffs have come up with this revisional application.
Now, the point that arises for decision is whether the impugned order should be sustained.
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Upon hearing the learned Advocates for the parties and on going through the materials on record, I find that the plaintiffs have filed the suit for permanent injunction against the opposite party stating, inter alia, that they have possession over the suit lands by dint of the 3 deeds of conveyance. The suit was at the stage of issuance of ad interim order. At that stage, the plaintiffs prayed for ad interim injunction. It was granted. Being aggrieved, the opposite party preferred a misc. appeal. In that misc. appeal, prayer for stay was moved and upon hearing both the sides, the learned lower appellate Court stayed the order dated January 20, 2009 for a limited period. Being aggrieved, the plaintiffs have come up with this application.
From the above facts, it is clear that the suit is at the preliminary stage and this revisional application has arisen out of an ad interim ex parte order against the opposite party. This being the position, in disposing of this revisional application, I am to consider whether the documents tendered by the petitioners are sufficient to entertain this revisional application. There is no scope of looking into the objections raised by the opposite party and also the documents filed by the opposite party. So, my observations of this Bench shall be confined only with regard to the plaint case, the application for temporary injunction along with connected papers to consider whether the learned lower appellate Court was justified in passing the impugned orders. 5 From the papers filed by the petitioners as annexures, I find that the Annexure 'D', that is, the order of the Government of West Bengal, Department of Land and Land Reforms dated April 6, 2006 is very much important. From the copy of such order, it is apparent that Bata India Ltd. took a joint venture for development of a modern township on 262 acres of its land out of total land of 309 acres held by it under Section 6(3) of the West Bengal Estates Acquisition Act, 1953. The said quantum of land, that is, 262 acres of land were re-allotted to the Bata India Ltd. as freehold raiyat for the purpose of implementation of their master plan including development of an ultra modern township and other programmes as specified under the terms and conditions held in a tripartite agreement. Government accepted such proposal. During argument, it was submitted that the Bata India Ltd. purchased the lands in the year 1940 when there was no Estates Acquisition Act. Thereafter, when the Estates Acquisition Act came into force, Bata India Ltd. retained 309 acres of land including the suit lands under Section 6(3) of the West Bengal Estates Acquisition Act, 1953. So, from the above facts, it appears that the Bata India Ltd. is in possession of the suit land and it had taken a joint venture for development of its property with the opposite party as per tripartite agreement.
From the Annexure 'J' filed by the petitioners, it appears that the petitioners had to take steps under Section 144(2) of the 6 Cr.P.C. against the opposite party before the learned Executive Magistrate, Alipore and in that matter an S.I. of Police was entrusted to enquire and submit a report on the matter. Mr. Mitra submits that after holding an enquiry, the S.I. of Police submitted a report to the effect that the petitioners are out of possession of the suit lands. This is not disputed. Thus, I find that an independent person held a spot enquiry and upon completion of the enquiry, he submitted a report holding that the petitioners are not in possession of the suit lands.
This being the position, I am of the view that there is hardly any scope for interference with the order of the learned lower appellate Court. The misc. appeal has not yet been disposed of and it shall be disposed of in due course. Thereafter, the application for temporary injunction is yet to be disposed of. So, if this Bench considers the entire matter in dispute in details, the lower courts may be biased by the observations. Since, stay has been granted for a limited period under the circumstances stated above, this Bench is of the view that discretionary power exercised by the learned lower appellate Court upon hearing both the sides, should not be interfered with.
Moreover, it is submitted by Mr. Mitra that the plaintiffs in filing the said suit suppressed the materials of the earlier suit and other facts. When the suppression of fact occurs according to 7 the decision of AIR 2003 Cal 96, the petitioner are not entitled to get any relief.
In view of the above findings, I am of the view that without going into the details of the matter, the impugned order should not be interfered with. This application is, therefore, dismissed.
The learned lower appellate Court is directed to dispose of the said misc. appeal within a period of four months from the date of communication, if not already disposed of in the meantime.
The above observations have been made for the disposal of the application. The lower courts shall not be influenced in any way by the above findings.
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.)