Calcutta High Court (Appellete Side)
Soumen Sengupta & Ors vs Asia Heart Foundation & Ors on 30 April, 2018
Author: Aniruddha Bose
Bench: Aniruddha Bose, Arindam Sinha
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Aniruddha Bose
The Hon'ble Justice Arindam Sinha
F.M.A. No. 4802 of 2016
C.A.N, 9691 of 2016
C.A.N. 5404 of 2017
Soumen Sengupta & Ors.
Vs
Asia Heart Foundation & Ors.
For the Appellants : Mr. S.P. Roy Chowdhury, Sr. Adv.
Mr. Dibakar Bhattacharya, Adv.
Ms. Shohini Chakraborty, Adv.
For the Respondent nos.1 and 2 : Mr. S.N. Mookerjee, Sr. Adv.
Ms. Debamita Adhikari, Adv.
Mr. Biswaroop Bhattacharya, Adv.
Ms. Sharmistha Ghosh, Adv.
Mr. Rahul Karmakar, Adv.
Ms. Anindita Mukherjee, Adv.
Mr. Sarbanu Bhattacharya, Adv.
For the respondent no.3 : Mr. Saptangshu Basu, Sr. Adv.
Ms. Gargi Goswami, Adv.
Heard on : 02.08.2017, 08.08.2017, 09.08.2017,
10,08.2017,
16.11.2017, 21.11.2017, 28.11.2017 &
20.12.2017.
Judgment on : 30th April, 2018.
Arindam Sinha, J.: Plaintiffs filed suit for declaration and permanent injunction in respect of land measuring 78 decimal within district 24 Parganas (South) in Sonarpur, RS Dag no.2661 to 2664 and 2676 as described in schedule A to the plaint. Asia Heart Foundation was named defendant no.1. A partnership firm called BDCON, State and Rajpur Sonarpur Municipality, were named proforma defendants. By order dated 24th August, 2016, director of Moz Export Private Limited was added as party-defendant. Plaintiffs' application for temporary injunction under Order 39 Rules 1 & 2 of Code of Civil Procedure was rejected by order dated 6th September, 2016. Plaintiffs are in appeal before us. In the appeal defendant no.1 is respondent no.1 and added defendant respondent no.2. The other respondents are the proforma defendants. CAN 9691 of 2016 is plaintiffs' application for injunction made in the appeal.
Mr. Roy Chowdhury, learned senior advocate appeared for plaintiffs and referred us to the plaint. He submitted, schedule A property, being the suit property, was conveyed by Ramakrishna Mission Belur Math to the said partnership firm by virtue of sale deeds registered with District Registrar, Alipore and recorded in Book no.1 serial nos.7331, 7333 and 7966 for the year 1989. Two persons representing themselves as sole partners of the said partnership firm had executed and registered a General Power of Attorney on 10th September, 2014 in favour of one Fajejul Islam Saiyad, authorising him, inter alia, to transfer the suit property. Plaintiffs purchased suit property from BDCON, the said partnership, through its constituted attorney by four deeds executed and registered in the year 2014 and got peaceful vacant physical possession thereof. They then got mutated their names in respect of suit property.
He submitted, on 16th July, 2016 persons claiming themselves to be men and agents of defendant no.1 tried to forcibly dispossess plaintiffs from suit property. They failed but disclosed they had purchased part of the suit property by deeds of 2015. Plaintiffs, going on information supplied by the said persons, applied and obtained certified copies of deeds showing defendant no.1 to have purchased land, as alleged ultimate transferee, from the said partnership. Such deeds have been described in schedule C of the plaint. They are sham, paper transactions, without consideration and manufactured collusively with ulterior motive to defraud plaintiffs as transferees of the said partnership. On 6th August, 2016 there was another attempt by defendant no.1 to dispossess plaintiffs, to forcibly and illegally take possession of suit property. Hence plaintiff's suit for declaration that they are absolute owners and possessors of suit property, that deeds mentioned in schedule C with all subsequent deeds are invalid and not binding on them, that defendant no.1 has not acquired any right, title, interest or possession in suit property on the basis of its alleged purchase and permanent injunction restraining said defendant from disturbing plaintiffs' peaceful possession in respect of suit property.
Mr. Roy Chowdhury submitted, his clients had made out a prima facie case for the Court, upon grant of temporary injunction, to adjudicate in trial. Prima facie case is not to be confused with prima facie title. His clients have a registered power of attorney and registered conveyances, executed pursuant to such power of attorney, in respect of suit property. That was prima facie case made out. Setting up registered deeds to resist plaintiffs' prima facie case gave rise to disputed questions of fact which could only be adjudicated on trial. Once prima facie case had been made out pending trial, the requirements for an order of temporary injunction provided under Rules 1 and 2 in Order 39 of Code of Civil Procedure stood fulfilled as balance of convenience was in making such order failing which plaintiffs would suffer irreparable injury. Plaintiffs had asserted their prima facie case by injunction application. Affidavit objections were put in by defendants nos. 1 and 2. Thereby disputes were before Trial Court which erroneously sought to adjudicate the same against plaintiffs since they had not filed affidavit in reply. Plaintiffs by not having filed reply to the objections cannot be deemed to have impliedly admitted case made out by objecting defendants. Moment dispute was raised, it is only at trial the same could be adjudicated. The said Court, upon holding mini trial at the injunction stage, did not pass order of injunction. Court was clearly wrong in rejecting plaintiffs' injunction application. Prima facie case of plaintiffs to go for trial required temporary injunction to maintain status quo in the mean time. He relied upon a judgement of Supreme Court in Gangubai Bablya Chaudhary Vs Sitaram Bhalchandra Sukhtankar, reported in AIR 1983 SC 742, on paragraph 4 which is reproduced below:-
"4. This Court is called upon to examine the proceeding at the stage when it is necessary to find out whether plaintiffs have a prima facie case to enable them to obtain an interim injunction restraining the respondents from interfering with their possession as also restraining the respondents from using the F.S.I. for the whole of the land? The whole plot is around 17,000 sq. Metres. Plaintiffs claimed title to and possession of an area admeasuring 8006.04 sq. Metres. The use of the F.S.I. is granted to the respondents on the footing that they are entitled to put up construction over the entire area admeasuring 17,000 sq. Metres. It is also necessary to examine where the balance of convenience lies".
Reliance was placed on another judgement of the said Court in Dalpat Kumar Vs Prahlad Singh reported in AIR 1993 SC 276, paragraph 5 which is reproduced below:-
"5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience"
must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
Next he relied on a decision of the said Court in Aanand Prasad Agarwalla Vs Tarkeshwar Prasad reported in AIR 2001 SC 2367. Paragraph 6 therein, is reproduced below:-
"6. It may not be appropriate for any Court to hold mini trial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser. The claim of the contesting respondents is in their own right. The decisions referred to by the learned counsel for the appellant are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents. In these circumstances, we dismiss these appeals. We may notice that the time bound directions issued by the Division Bench will have to be adhered to strictly by the parties concerned and the suits should be disposed of at an early date but not later than six months from the date of the communication of this order."
Mr. Roy Chowdhury submitted, during pendency of the suit defendant no.1 wrongfully and illegally commenced construction on suit property. He submitted, this was a case where the Court should, if necessary, proceed not only to grant temporary injunction to restrain further construction but also to direct the construction already erected, be broken down. For this submission, he relied upon a judgment of a Division Bench of this Court in Israil Vs Samser Rahaman reported in (1914) ILR 41 Cal 436. In this regard, he also relied on a judgement of Supreme Court in Mandali Ranganna Vs T. Ramachandra reported in (2008) 11 SCC 1, paragraphs 26 and 27 which are reproduced below:-
"26. Rightly or wrongly constructions have come up. They cannot be directed to be demolished at least at this stage. Respondent 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions.
27. We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The trial court is requested to hear out and dispose of the suit as early as possible. If any third-party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is sub judice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit. The respondents must also furnish sufficient security before the learned trial Judge within four weeks from the date which, for the time being, is assessed at rupees one crore."
Mr. Roy Chowdhury submitted further, defendant no.1 had not been able to make out case of irreparable loss and damage. In like situation Supreme Court had thought that it would be unjustified to permit such party to change the nature of property by putting up construction as also alienating the same. In the event his clients' claim was ultimately found to be baseless, it would be open to defendant no.1 to claim damages or in an appropriate case, the Court may itself award damages for the loss suffered in that regard. For this submission he relied on Maharwal Khewaji Trust (Regd) Vs Baldev Dass reported in (2004) 8 SCC
488. Lastly he submitted, schedule C deeds of 1989, purportedly executed by the said partnership, were in effect benami transactions where the said partnership, as owner of suit property, had executed conveyances in favour of others without intention of transferring title to the property thereunder. For this submission he relied on a judgment of Supreme Court in the case Bhim Singh Vs Kan Singh reported in AIR 1980 SC 727. He submitted, plaintiffs were entitled to injunction.
Mr. S. N. Mukherjee learned senior advocate appeared on behalf of respondent nos. 1 and 2. He relied on the following statement in the written objection of respondent/defendant no.1 filed in the court below.
"That deeds which have been described in schedule -C all are prior registered deeds, of the alleged purchase deeds of the plaintiffs, so question of defraud does not arise at all, on the contrary plaintiff's alleged purchase deeds are sham paper transaction without consideration money and manufactured collusively with the ulterior motive to defraud the real owner. "
He submitted, plaintiffs do not have possession so question of dispossession, trespass, obstruction or hindrances to peaceful enjoyment by plaintiffs over suit property does not arise at all. Plaintiffs purportedly obtained mutation in their favour in respect of suit property behind the back of his clients. Khazna in respect of suit property was paid by plaintiffs on 5th August, 2016 and suit filed immediately thereafter on 18th August, 2016. The plaint does not disclose how plaintiffs obtained possession since the purported power of attorney dated 10th September, 2014 neither says possession was with the alleged attorney nor that he could duly deliver the same in dealing with suit property thereunder.
During the hearing Mr. Mukherjee moved CAN 5404 of 2017 by which respondent no.2 wanted to produce order dated 6th September, 2016 passed by District Land and Land Reforms Officer in proceedings instituted for cancellation of mutation made in favour of plaintiffs, order dated 27th September, 2016 passed by West Bengal Land Reforms and Tenancy Tribunal and charge sheet dated 17th February, 2017 (erroneously mentioned as dated 26th August, 2016 in the said application) filed in Sonarpur P.S. case no.1977 of 2016. He submitted, there can be no dispute regarding the existence and contents of these documents. By order dated 6th September, 2016 plaintiffs' mutation was set aside and case remanded for hearing his client. Said order was not interfered with by Land Reforms and Tenancy Tribunal as would appear from order dated 27th September, 2016. Amongst others, appellants have all been charge sheeted in the said police case. He relied on, inter alia, the following in the charge sheet.
"After making judicial statement of Jayanta Das and verification of signature of Madhuri Bose and from other evidences so far collected it is transpired that all the FIR named accused sold most of the lands by forgery. Hence a prima facie charge u/s 168/169/471/420 IPC has well been established against all of the FIR named accused persons in c/w this case."
These documents could not be produced in the court below as had come into existence on and after the date of impugned judgment. According to him these documents would be required by this court to pronounce judgment in this appeal. Mr. Mukherjee relied on several decisions.
i. Suraj Lamp and Industries Private Limited (2) vs. State of Haryana and another reported in (2012) 1 SCC 656, to paragraph 15 therein where it was said that registration of documents makes the process of verification and certification of title easier and simpler. It reduces disputes and litigations to a large extent. This was a Constitution Bench judgment in which an earlier judgment explaining the objects and benefits of registration were extracted.
ii. The earlier judgment referred to above was also in the case of Suraj Lamp and Industries Private Limited vs. State of Haryana and another reported in (2009) 7 SCC 363, Paragraphs 15, 17 and 18 were relied upon as are reproduced below:
"15. The Registration Act, 1908 was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-
registration.
17. Section 49 of the said Act provides that no document required by section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affecting such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.
18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified."
iii. Radhika Devi vs. Bajrangi Singh and others reported in (1996) 7 SCC
486. He submitted, in this case appellant had contended he had no knowledge of execution of gift deed. By amendment of plaint the appellant was not defeating the right of respondents but merely seeking to avoid the gift deed executed which was detrimental to appellant's right, title and interest in the property. Supreme Court dismissed the appeal by saying, inter alia, the gift deed was executed and registered which is notice to everyone.
iv. Jayaram Mudaliar vs. Ayyaswami and others reported in (1972) 2 SCC 200, paragraph 13 for interpretation of rule of lis pendens. v. Nagubai Ammal and others vs. B. Shama Rao and Others reported in AIR 1956 SC 593, paragraph 22 which is reproduced below.
"But it is argued for the appellants that having regard to the words of section 52 that pendente lite "the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be non est, that in consequence Keshavananda must, for purposes of lis pendens be regarded as the owner of the properties, notwithstanding that he had transferred them, and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action. This contention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto. It will be inconsistent to hold that the sale deed dated 30-1- 1920 is effective to convey the title to the properties to Dr. Nanjunda Rao, and that, at the same time, it was Keshavananda who must be deemed to possess that title. We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of section 52, be treated as still retaining title to the properties. "
vi. Basant Kumar Kejriwal vs. Suman Kejriwal and others reported in AIR 2005 Cal 260 (DB), paragraphs 12 and 15. Mr. Mukherjee submitted, section 52 of Transfer of Property Act, 1872 is sufficient protection for plaintiffs, the suit not being a suit for specific performance where alteration in nature and character of property might render discretionary relief being refused. The transactions his clients have had are good transactions.
Plaintiffs should not be allowed to cause any objection or hindrance regarding them by their suit.
vii. Union of India vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148, paragraphs 49 and 52. This authority was cited in support of his submission made for production of additional evidence. viii. Unity Reality and Developers Ltd. vs. Shri Amit Kumar Mitra and others reported in 2010 (1) CHN (Cal) 597 (DB). He submitted, the views expressed in this judgment were on fact situation similar if not exactly the same. There was allegation of tampering of power of attorney. Irrevocable power of attorney was executed upon payment of paltry amount stamp duty of Rs.60/- when stamp duty payable on the same is similar to deed of conveyance. In this case the power of attorney does not talk about possession and hence omission of plaintiff to explain how possession was obtained is fatal to purported prima facie case made out. He relied on, inter alia, paragraphs 22 and 24 of this judgment. Mr. Mukherjee submitted, the impugned order deserved to be confirmed and the appeal dismissed.
Mr. Saptangshu Basu learned senior advocate appeared on behalf of respondent no.3, the said partnership firm and submitted that in the year 1989 his client had duly sold the properties, described in the deeds mentioned in schedule C, which included suit property, to persons who are predecessors-in-interest of respondent nos. 1 and 2. The sales were duly made for consideration. No prima facie case for cancellation of those documents had been made out. Plaintiffs' case is based on a purported power of attorney under which they got executed their purported conveyances. There are serious disputes on facts relating to the purported power of attorney which was executed by alleged daughter of Jayanta Das, one of the partners and Madhuri Basu the other partner. He submitted on instruction, Jayanta Das is continuing as a partner and does not have a daughter. The partners never executed said purported power of attorney. All this had been stated on affidavit by Madhuri Basu, one of the partners of the existing firm. Plaintiffs, therefore, did not have a basis for their prima facie case. Furthermore, plaintiffs could not show that any part of consideration alleged to have been paid by them was received by the said partnership. He relied on clause 7 of General Power of Attorney dated 10th September, 2014. The said clause is reproduced below:
"To negotiate sell and make agreement and fix price with the intended purchasor and take money from them as advance and or consideration and deposit the same in the Owner's Account."
He demonstrated from particulars of cheques for consideration, as recorded in the memos of consideration of plaintiffs' deeds, there was no indication therein nor any averment made to show that such consideration had been deposited in the account of the said partnership. He submitted, plaintiffs practised fraud, inter alia, on his client to achieve their object of grabbing suit property. Plaintiffs in paragraph 9 of their plaint stated as follows: "9. That on 16-07-2016 some persons claiming themselves to be the men and agents of the defendant no.1 tried to dispossess the plaintiffs forcibly from the suit property on a claim that they have purchased the suit property. On the resistance of these plaintiffs they failed, but they disclosed that they have purchased the suit property vide Sale Deed dated 25-04- 2015 being Deed no.3337 of 2015. After getting the certificated copy of the said purported Sale Deed it appeared that 08 dec. land of R.S. dag 2661, 07 dec. land of R.S. dag 2662 and 13 dec. land of R.S. dag 2663 are included in the Schedule of the said purported Sale Deed which are described in the Schedule-B hereunder. It further appears that the defendant no.1 appears to have purchased the same as the alleged ultimate transferee from Proforma-Defendant no.2. The purported sale deeds allegedly claimed to have executed by the Proforma- Defendant no.2 are being described in the Schedule 'C' below. The purported sale deeds as described in the Schedule 'C' below are sham, paper transaction, without consideration and manufactured collusively with the ulterior motive to defraud the transferees of the Proforma-Defendant no.2, i.e. the plaintiffs herein. The said purported Deeds described in the Schedule 'c' hereunder were never acted upon and no delivery of possession was ever made by proforma Defendant no.2 BDCON to the so called purchasers of the said purported sale deeds which are described in the Schedule-C hereunder."
In claiming declaration that plaintiffs are absolute owners and possessors of suit property they have also claimed declaration that, inter alia, schedule C deeds are invalid, inoperative and not binding upon them. It is thus an admitted position that schedule C deeds are in respect of part, if not the whole of suit property since plaintiffs upon discovery, on disclosure made by defendant no.1, obtained certified copies of schedule C deeds and want invalidation of the same. Therefore, it is also a fact schedule C deeds were duly registered.
Buyers must beware. In Suraj Lamp and Industries [(2009) 7 SCC 363] Supreme Court had said that registration of a document gives notice to the world that such a document has been executed. Plaintiffs having had been interested to purchase suit property are deemed to be on notice that the said partnership had already dealt with the same in the year 1989.
It is difficult for us to accept a prima facie case based on registered conveyances executed pursuant to a registered general power of attorney, all of them executed long after the said partnership had executed conveyances that were duly registered. There is nothing in the plaint for us to accept the contention that for the purpose of defrauding plaintiffs on a future date, sham paper transactions, without consideration would have been manufactured collusively between the parties to schedule C deeds. No connection between plaintiffs and the said partnership has even been alleged to have existed in the year 1989. Submissions made on behalf of plaintiffs that schedule C deeds represent benami transactions were also not supported by the plaintiffs having claimed relief against the said partnership.
Rule 1 in Order 39 of the Code of Civil Procedure provides as follows;
"Order XXXIX Rule 1. Cases in which temporary injunction may be granted. Where in any suit it is proved by affidavit or otherwise-
(a)that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders."
Thus far we have not been impressed by submissions made on behalf of plaintiffs, in support of claims on suit property, for appreciation of a prima facie case. So it is that we must direct our attention to whether plaintiffs are in possession of suit property and defendants or any of them are threatening to dispossess or otherwise cause injury to plaintiffs. Prima facie appreciation of plaintiffs' claim of possession cannot be made without taking cognizance of additional affidavit evidence produced before us by respondent no.2. Additional affidavit evidence produced are order dated 6th September, 2016 passed by District Land and Land Reforms Officer in proceedings instituted for cancellation of mutation made in favour of plaintiffs, order dated 27th September, 2016 passed by West Bengal Land Reforms and Tenancy Tribunal on the said order dated 6th September, 2016 having been impugned before it and charge sheet dated 17th February, 2017 filed in Sonarpur P.S case no.1977 of 2016. In CAN 5404 of 2017, being application made under Order 41 Rule 27 read with section 151 of Code of Civil Procedure, these three documents were introduced in paragraphs 6 to 8 and copies thereof annexed. On perusal of paragraphs 7 and 8 of the affidavit- in-opposition thereto filed by plaintiffs, we find there is no dispute regarding the existence or contents of the said documents. The contents of the said documents comprise of views expressed and allegations made both of which may or may not be correct but that they have been made in those documents appears to be admitted. Plaintiffs' prima facie case of possession was based on mutation in their favour in respect of suit property. That stands set aside. Taking into consideration these additional evidence we are able to pronounce judgment that plaintiffs do not have a prima facie case of possession in respect of suit property.
In view of our reasoning, the authorities relied upon by plaintiffs do not come to their aid. Plaintiffs, if they succeed at trial, stand protected by rule of lis pendens, if it applies to plaintiffs' case proved at trial. In adjudicating appeal from interlocutory order it would not be proper to say anything further.
The impugned order is confirmed but for the reasons we have given. Interim order passed in CAN 9691 of 2016 is vacated, appeal and CAN 9691 of 2016 are dismissed. CAN 5404 of 2017 is allowed on the documentary evidence produced taken by this court.
(Aniruddha Bose, J.) (Arindam Sinha, J.)