Calcutta High Court (Appellete Side)
Sanal Sk & Ors vs Jahangir Alam & Ors on 2 July, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
1 July 02, 2019 R.C. C.O.3568 OF 2018 Sanal Sk & Ors.
Vs. Jahangir Alam & Ors =-=-==-=-=-
Lutful Haw, ...for Petitioner Mr.Sanjib Seth, ...for O.P.Nos.1 to 4 The impugned order dated 25th May, 2017 passed by the learned Additional District Judge, Kandi, Murshidabad in Misc. Appeal no.4 of 2016, setting aside the order dated 16th November, 2015, passed by the learned Civil Judge, (Senior Division), Kandi, in Title Suit no.152 of 2015 rejecting the application under Order 39 Rule 1 and 2 read with Section 151 C.P.C. is the subject of challenge in this revisional application under Article 227 of the Constitution of India.
Admittedly, by the order dated 16th November, 2015, the learned Civil Judge (Senior Division) 1st Court, Kandi, in Title Suit no.152 of 2015 refused to grant injunction. The refusal, as regards injunction was challenged in appeal preferred by the opposite party-appellant in Misc. Appeal no.4 of 2016. The learned Lower Appellate Court reversed the order of the Court below and granted injunction directing both parties to maintain status quo with respect to the possession, enjoyment, nature and character of the suit property till the disposal of the suit.
The petitioner/defendants took a plea at the time of disposal of the injunction petition by the learned Court below that they were in possession by way of adverse possession for the last 40 years, and they started making plantation in the suit property with the knowledge of the plaintiffs having obtained approval from the concerned Gram 2 Panchayat. It was raised by the defendants further that in view of the provisions contained in Section 36 and 47 of the Indian Trust Act, 1882, the trust property cannot be subjected to a lease beyond 21 years onwards years except with the leave of the Court of learned Principal Civil Judge of Original jurisdiction and further that the Trust Property cannot be delegated by executing a power of attorney.
Admittedly, the suit property is a trust property and there are four trustees and the moment when the power of attorney was executed, one of the trustees, namely, Tapan Adhikary suffered death. Taking recourse to such facts, the defendants/petitioners wanted to establish before the learned Court below that power of attorney was illegally executed so as to delegate the power of the trustees.
The learned Court below that is, (Trial Court) upon consideration of such points refused to grant temporary injunction.
The Appellate Court came to a finding that since the defendants did not mention in their written statement as to the specific date from which they came into possession of the suit property and started claiming hostile possession to the knowledge of the title holder of land by manifest act of dispossession the claim of possession of Defendants was disbelieved. It was also the point taken before the Trial Court below that the prayer for temporary injunction petition was rejected earlier on the prayer plaintiffs on the self-same cause of action filed in connection with Title Suit no. 134 of 2013, and when the entire suit was allowed to be withdrawn without any liberty to file fresh suit, the institution of the present suit was is in clear departure of the provisions contained in Order 23 Rule 1 and Sub-rule (4). It was thus, attempted to be established that in the absence of any conspicuous liberty being granted by the Court below, while allowing withdrawal of the previous suit on the self-same cause of action present suit is no-longer maintainable.
3The Appellate Court considered the possession of the parties without addressing to the points based on law points raised by the defendants at the time of disposal of the temporary injunction application by the learned Trial Court below.
The learned advocate for the petitioner also submits that for the technicalities, as referred hereinabove, the injunction order ought not to have been granted by the Appellate Court.
The learned advocate for the opposite parties-plaintiff adverting to a copy of the order, passed in C.O. No.1769 of 2018 submits that the prayer for police help having been refused, the refusal order was challenged and the coordinate Bench of this Court in connection with C.O.No. 1769 of 2018 has enforced the order of injunction, passed by the Appellate Court, granting police help necessary for the enforcement of the injunction order. The learned advocate for the opposite party further claims possession of the plaintiffs over the suit property on the strength of a lease Deed, what is specifically disputed by the learned advocate for the opposite parties. True, it is that the point, now raises by the petitioner could not be duly addressed to by the Appellate Court in spite of having made reference in the objection petition filed by the petitioner, while disposing of the temporary injunction application, but the fact is that the parties to this case claimed their possession and counter-possession over a self-same property, which is a disputed question of fact and the same cannot be effectively determined without entering into the evidence to be adduced by the parties to this case. When the coordinate Bench of this Court, in connection with C.O.No.1769 of 2018, passed an order granting police help simply to enforce the order of injunction passed by the Appellate Court, this Court is of the view that though there is good points of law involved in this case as raised by petitioner, but the same cannot be effectively addressed to at this moment because, if that is addressed at this moment by this Court, there is chance of conflicting decisions, and 4 there is possibility of multiplicity of proceedings. In order to prevent multiplicity of proceedings and conflicting decisions, this Court is of the view that whenever there is already direction passed earlier by the learned lower Appellate Court to secure expeditious disposal of the pending suit, the instant revisional application may be disposed of directing the petitioners to raise all such points pertaining to the point of law, as now raises, before the Court below at the time of conducting trial, and if any such points raised that must be specifically addressed to by the Court below to decide the issue in accordance with the provisions of the law.
With this observations and directions, the revisional application stands disposed of. This order is passed without venturing into the merits involved in the suit.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned advocates appearing for the parties.
(Subhasis Dasgupta, J.) 5 6