Calcutta High Court (Appellete Side)
Sri Sailendra Nath Patra vs Smt. Geetanjali Manna & Ors on 23 December, 2011
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present: The Hon'ble Mr. Justice Subhro Kamal Mukherjee
And
The Hon'ble Mr. Justice Tarun Kumar Gupta
F.M.A. No.1244 of 2010
F. M. A. T. No.1418 of 2010
C.A.N. No.9109 of 2010
Sri Sailendra Nath Patra
Versus
Smt. Geetanjali Manna & Ors.
For the appellant: Mr. S. P. Roy Chowdhury
Mr. Balailal Sahoo
For the plaintiffs/respondents: Mr. Puspendu Bikash Sahoo
Mr. Sudhakar Biswas
Judgment on: December 23, 2011
Tarun Kumar Gupta, J.:-
This appeal is directed against order No.16 dated August 25, 2010 passed by
learned Civil Judge (Senior Division), 1st Court, Contai in Title Suit No.49 of 2010.
By the impugned order learned Trial Court rejected the petition filed by the present
petitioner defendant No.6 under Order 39 Rule 4 of the Code of Civil Procedure
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praying for variation and / or setting aside ex-parte order of status quo passed by the
learned Court vide order No.1 dated February 19, 2010 in Title Suit No.49 of 2010.
Respondent No.1 - 5 being plaintiffs filed said Title Suit No.49 of 2010
praying for declaring those plaintiffs' one-fourth undivided share in both 'ka'and
'kha' Schedule properties with a further prayer for partition by metes and bounds
with other consequential reliefs.
It was the case of those plaintiffs that plaintiffs' predecessor-in-interest
Amulya Manna along with his three brothers namely, Kartick Manna, Hanu Manna
and Paresh Manna purchased 47 decimals of land in plot No.455 and 15 decimals of
land in plot No.455/1074 from their original owner Monnothonath Sarangi through a
registered deed of Kobala dated February 28 of 1970. While those four brothers
were in possession of said property in Ejmal, five decimals of land in plot No.455
vested to the State. Accordingly, they continued to possess in Ejmal 42 decimals in
plot No.455 as described in Schedule 'ka' and 15 decimals of land in plot
No.455/1074 as described in Schedule 'kha' of the plaint. Plaintiffs' predecessor-in-
interest Amulya Manna had one-fourth undivided share in both 'ka' and 'kha'
Schedule properties. He died leaving the present plaintiffs and one daughter Kalpana
Pramanick as his only legal heirs. Said Kalpana Pramanick gifted her share of suit
property in favour of plaintiff No.4 Kalipada Manna through a registered deed of gift
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dated September 29, 2004. Accordingly, present plaintiffs jointly had one-fourth
undivided share in the suit properties. Though there was no partition by metes and
bounds between the co-sharers, but other co-sharers and on their death their heirs and
legal representatives started to transfer specific portion of suit property to different
purchasers, and some of those transfers were in excess of their admitted share in the
suit properties though there was no partition by metes and bounds among the co-
sharers. Some of those purchasers started to possess definite portions of the suit
property and some of them made illegal construction thereupon. Defendant No.6's
vendor Ruma Roy though claimed to purchase from legal heirs of Bhanu Manna but
those legal heirs of Bhanu had no saleable interest in the property as they already
sold out their entire share to other parties. Present defendant No.6 Sailendra Nath
Patra did not acquire any title through said purchase but he and others were trying to
construct houses on valuable portions of the unpartitioned land. As the defendants
also refused the plaintiffs' claim for partition, the present plaintiffs were compelled
to file said suit for partition. At the time of filing of said suit plaintiffs filed a
petition for temporary injunction with a prayer for ad-interim injunction and learned
Trial Court directed the parties to maintain status-quo which was extended from time
to time.
Present appellant being defendant No.6 filed a petition under Order 39 Rule 4
praying for modification of said order of injunction on the ground that while his
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vendor Ruma Roy was in possession of a definite portion of the suit property
surrounded by boundary wall after purchase of the same from one of the co-sharers,
she sold out said specific demarcated portion to said defendant No.6. Many other
purchasers were also in possession of definite portions of suit land surrounded by
boundary wall and were residing there by constructing structures. This petitioner
defendant No.6 was made to believe that there was partition between the co-sharers
and accordingly, he started to construct his building on his purchased portion after
obtaining necessary approval from proper authorities. The order of status-quo was
causing undue hardship to the defendant No.6 as he already collected the building
materials. When his construction went up to the linton level the plaintiffs disclosed
about the suit and the order of status-quo. Defendant No.6 is facing undue hardship
on account of said ex-parte order of status-quo and that the order of status-quo should
be modified so that defendant No.6 may be permitted to complete his construction in
his bounded portion.
The plaintiffs filed written objection against said petition under Order 39 Rule
4 of the Code of Civil Procedure.
After contested hearing learned Trial Court rejected said petition under Order
39 Rule 4 of the Code of Civil Procedure by the order impugned. Learned Trial
Court observed that as there was no partition by metes and bounds in the suit
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property and the purchaser of defendant No.6 was also under cloud, defendant No.6
was not entitled to get any order of modification of the order of status-quo.
Being aggrieved with said order, the instant appeal has been filed by defendant
No.6.
Sri S. P. Roy Chowdhury, learned Senior Advocate for the appellant defendant
No.6 submits that the report of Commissioner dated August 27, 2010 filed in the
Trial Court goes to show that 'ka' and 'kha' Schedule plots were almost
amalgamated with each other having no separate identity and that 'ka' and 'kha'
Schedule lands have been sub-divided into several parcels. Said report also showed
that several residential houses were standing on suit plots surrounded by boundary
walls and that defendant No.6's construction was found to be lying unfinished upto
linton level but within the demarcated portion surrounded by boundary walls.
Sri Roy Chowdhury submits that when appellant defendant No.6 has already
constructed upto linton level within a bounded portion purchased by him and there
are other constructions on the suit lands within specified portions surrounded by
boundary walls, it prima facie goes to show that there was some sort of partition
between co-sharers and that purchasers purchased definite portions of suit property
and were allowed to raise construction in definite portions. Mr. Roy Chowdhury
submits that accordingly present appellant defendant No.6 started to construct with
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necessary sanctioned plan after purchasing of an earmarked portion surrounded by
boundary walls. According to Mr. Roy Chowdhury under these circumstances there
will be undue hardship to this defendant No.6 if he is not permitted to finish his
construction by modifying the order of status-quo. In support of his contention he
has referred case laws reported in 85 CWN page 393 (Bepin Krishna Sur and Ors v.
Gautam Kumar Sur and Ors.), 91 CWN page 1078 (Phani Bhusan Dey v.
Sudhamoyee Roy), 2004 (1) CLJ (Cal) page 430 (Satish Chandra Som and Ors. v.
Tarak Nath Mahapatra & Ors.) and an unreported decision of this Court passed in
F.M.A. No.842 of 2008. It was observed on those reported judgments as referred by
Mr. Roy Chowdhury that if it is found that for continuation of order of injunction one
of the parties is facing great hardship then the Court should modify the order of
injunction accordingly. In the unreported decision also the same principle was
followed and the appellant defendant was permitted in a suit for partition to complete
his construction in the demarcated portion at his risk and without permitting him to
claim any equity for said construction.
Sri Shaw, learned advocate for the contesting respondent plaintiffs, on the
other hand, submits that order of injunction can only be discharged, varied or set
aside under Order 39 Rule 4 of the Code of Civil Procedure if the ingredients of one
of the provisos appended to said rule are fulfilled. According to him, neither the
respondent plaintiffs obtained the order of temporary injunction of status-quo by
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making a false or misleading statement nor there was change of circumstances
justifying variation of said order of status-quo. For proper appreciation of his
argument it is worthy to note down the entire provision of Order 39 Rule 4 of the
Code of Civil Procedure which stands as follows:-
"Any order for an injunction may be discharged or varied, or set aside by the
Court, on application made thereto by any party dissatisfied with such order:
Provided that if in an application for temporary injunction or in any affidavit
supporting such application, a party has knowingly made a false or misleading
statement in relation to a material particular and the injunction was granted without
giving notice to the opposite party, the Court shall vacate the injunction unless, for
reasons to be recorded, it considers that it is not necessary so to do in the interests of
justice:
Provided further that where an order for injunction has been passed after
giving to a party an opportunity of being heard, the order shall not be discharged,
varied or set aside on the application of that party except where such discharge,
variation or setting aside has been necessitated by a change in the circumstances, or
unless the Court is satisfied that the order has caused undue hardship to that party."
Those provisos were inserted by Code of Civil Procedure (Amendment) Act,
104 of 1976 which came into force with effect from 1st of February, 1977. As per
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first proviso, an ex-parte ad-interim injunction obtained by making a false statement
to the knowledge of the party or by misleading statement in relation to material
particulars, should be vacated by the Court granting said injunction.
As per second proviso if an order of injunction is passed after giving a party an
opportunity of being heard, the same shall not be discharged or varied or set aside on
the application of said party except where such discharge, variation or setting aside
has been necessitated by a change in the circumstances or unless the Court is
satisfied that order has caused undue hardship to that party.
But even before incorporating said provisos through Amendment Act of 1976
the main portion of Order 39 Rule 4 of the Code of Civil Procedure remained in the
statute book. It is palpable that even without existence of those provisos the Court
had the power to discharge or to vary or to set aside an order of injunction at the
instance of any party to the suit if situation so demands. In other words, even if the
conditions as laid down in those provisos are absent even then the Court had the
power to vary, to discharge or to set aside an order of injunction at the instance of
any party to said suit. The Court has always the power to discharge or to vary or to
set aside an order of injunction be it ex parte or contested, if the Court is satisfied that
the order requires variation etc. for the interest of justice.
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Sri Shaw has submitted that appellant defendant No.6's title to the suit
property is disputed and that a person having no title to the property which is
unpartitioned one can be evicted therefrom by a co-sharer. According to him even
parties in illegal possession of definite areas of an unpartitioned property can be
evicted therefrom. According to him, learned Trial Court was justified in rejecting
the petition filed by the appellant defendant No.6 under Order 39 Rule 4 of the Code
of Civil Procedure. In support of his contention he referred case laws reported in
(2009) 10 SCC page 654 ( Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble and
others), (2009) 7 SCC page 444 (Ramdas v. Sitabai and others) and 2000 (2) CHN
page 378 (Minor Nantu Bag & Anr. V. Smt. Rasana Bala Dasi & Ors.)
On going through those case laws as referred by Mr. Shaw it appears that all
those case laws were relating to second appeals preferred in connection with partition
suits.
At the time of hearing a petition under Order 39 Rule 4 of the Code of Civil
Procedure there is no scope of deciding a party's title and / or share in the suit
property. The Court has to see whether the ex-parte ad-interim order of status-quo is
causing much hardship to one of the parties justifying variation of the same. There is
no denial that respondent plaintiffs have made out a prima facie case of having one-
fourth share in the suit property. It was alleged that there was no partition by metes
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and bounds amongst co-sharers. But it appears from the report of the learned
Commissioner that several persons were found to reside on suit property by
constructing buildings in demarcated portions. It also came out that appellant
defendant No.6 purchased a demarcated portion through a registered kobala and
started to make construction thereupon and that said construction came up upto linton
height. It is true that at the time of final hearing in the suit it would be decided on
evidence as to whether appellant defendant No.6 and some other defendants who are
admittedly residing on suit land by making construction on a demarcated portions,
had title and / or share in the suit property or not. Prima facie it appears that
appellant defendant No.6 is in occupation of a demarcated portion in the suit property
and that his demarcated portion is surrounded by boundary walls and that he already
constructed upto linton height after obtaining necessary sanction from appropriate
authority. If appellant defendant No.6 is prevented from completing his unfinished
construction but later on it is found that he had the authority to make said
construction then his loss will be irreparable. On the other hand, if appellant
defendant No.6 is permitted to finish his unfinished construction at his risk and
without permitting to claim any equity, and later on it is found that he had no
authority to possess said land then plaintiff will be at liberty to get vacant possession
of said land after demolision of said construction at the cost of the defendant No.6.
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Considering all these facts we are of opinion that learned Trial Court failed to
exercise his discretion vested in him by law under Order 39 Rule 4 of the Code of
Civil Procedure causing injustice to this appellant defendant No.6.
In the result, the appeal succeeds.
The impugned order of rejection of the petition filed by the appellant
defendant No.6 under Order 39 Rule 4 of the Code of Civil Procedure is hereby set
aside. The appellant defendant No.6 is at liberty to complete his unfinished
construction at his risk within his bounded area. However, said construction should
be limited to one storied. The appellant defendant No.6 shall not be entitled to claim
any equity whatsoever for said construction and the same shall be subject to the
result of the suit. The order of status-quo is modified only to this extent. The
appellant defendant No.6 should, however, finish said unfinished construction only
as per rule after obtaining necessary approval from concerned authorities. However,
learned Trial Court is at liberty to appoint an Advocate Commissioner who was
earlier appointed or any other Advocate Commissioner at the cost of the appellant,
for supervising the construction of appellant defendant No.6 and for submitting a
report to the Court on completion of said construction.
The application for stay being C.A.N. No.9109 of 2010 stands disposed of
being infractuous. There would be no order as to costs.
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Urgent photostat certified copy of this judgment, if applied for, be handed over
to the parties at the earliest.
(Tarun Kumar Gupta, J.)
Subhro Kamal Mukherjee, J.
I agree (Subhro Kamal Mukherjee, J.) Later on:
Mr. Sudhakar Biswas, learned advocate appearing for the respondents, prays for stay of operation of this order.
Such prayer is considered and rejected.
(Subhro Kamal Mukherjee, J.) (Tarun Kumar Gupta, J.)