Allahabad High Court
Suman Singh vs District Magistrate And 7 Others on 20 October, 2022
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 6.9.2022 DELIVERED ON 20.10.2022 Court No. 40 Case :- WRIT - C No. - 12310 of 2022 Petitioner :- Suman Singh Respondent :- District Magistrate And 7 Others Counsel for Petitioner :- Abhishek Kumar,Ashish Kumar Gupta Counsel for Respondent :- C.S.C.,Ajay Kumar Singh,Ashish Kumar Singh,Sudarshan Singh,Tejas Singh :with: Case :- WRIT - C No. - 24798 of 2022 Petitioner :- Smt.Manju Devi And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh,Tejas Singh Counsel for Respondent :- C.S.C. Hon'ble Siddhartha Varma,J.
Hon'ble Vikas Budhwar,J.
(Per: Hon. Vikas Budhwar, J.)
1. The question which arises and falls for consideration before this Court in the present proceeding is with regard to the extent of judicial intervention in matters, where admittedly, parties are litigating their rights under the common law before the competent Civil Courts."
2. To begin with, one Smt. Suman Singh had instituted Writ-C No. 12310 of 2022, Suman Singh vs. District Magistrate, Varanasi and 7 others (hereinafter referred to as the leading petition) before this Court seeking following reliefs: -
"I. To issue a writ, order or direction in the nature of mandamus commanding the respondents to restore the possession of petitioner over her plot No. 446 area 2250 square feet situated at Village Susuwahi, Tehsil Sadar, District Varanasi from which petitioner was dispossessed illegally by the state authorities with connivance of private respondents.
II. To issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
III. To award the cost of petition in favour of the petitioner."
3. Perusal of the relief as sought in the above noted writ petition will clearly reveal that the petitioner herein had sought writ, order or direction in the nature of mandamus commanding the respondents including Smt. Manju Devi w/o Shri Gopal Prasad, Smt. Sunita Devi w/o Lalji Gupta and Sri Gopi Chandra Gupta son of Late Dukhnti Sav, to restore the possession over the plot no.446 are 2250 sq. ft. situate at village Susuwhi, Tahsil Sadar, District Varanasi, from which the petitioner claims to be dispossessed illegally by the State authorities in connivance with the private respondents.
4. So far as Writ-C No. 24798 of 2022 (hereinafter referred to as the 'connected petition') is concerned, the same has been instituted by Smt. Manju Devi w/o Shri Gopal Prasad, Smt. Sunita Devi w/o Lalji Gupta, Smt. Lali Devi w/o Gopichand Gupta and Gopi Chandra Gupta son of Late Dukhnti Sav, in which besides the State and its functionaries, the petitioner in Writ-C No. 12310 of 2022, Suman Singh vs. District Magistrate, Varanasi and 7 others (hereinafter referred to as to as 'the leading petition') has been arrayed as Respondent no.5 seeking the following reliefs: -
"I. Issue a writ, order or direction in the nature of certiorari quashing exparte order dated 13.08.2022 passed by respondent no. 3 along with memo of delivery of possession dated 16.08.2022 (Annexure 1 to the petition).
II. Issue a writ, order or direction in the nature of Mandamus directing respondents-authorities to restore back possession of petitioners over their property being Arazi No. 446 M area 4080 sq. ft., situate in Mauza Susuwahi, Pargana Dehat Amanat, Tehsil and District Varanasi, by directing respondents-authorities to maintain statusquo ante by restoring status of the property of petitioners as stood prior to 16.08.2022 or as existed on 10.08.2022 when the order dated 10.08.2022 was passed by Hon'ble Court in Writ Petition No. 12310 of 2022.
III. Issue an appropriate writ, order or direction in the nature of mandamus directing respondents to pay compensation to the tune of Rs. 10 lakhs towards the mental, physical agony and distress suffered by the petitioner due to wrongful and illegal dispossession of the petitioner from his own property and towards raising of constructions over the property of petitioners by the respondent no. 5.
IV. Issue writ of mandamus, order or direction with this Hon'ble Court deems fit and proper in the facts and circumstances of the case.
V. Award the cost of the writ petition to the petitioners."
5. A close scrutiny of the relief as sought in the connected petition would go to show that writ, order or direction in the nature of certiorari has been sought for quashing ex-parte order dated 13.8.2022 passed by Respondent no.3 (S.D.M. Sadar, District Varanasi) along with the memo of delivery of possession dated 16.8.2022, whereby the private respondent in the connected petition being the petitioner in the leading petition Suman Singh has been handed over the portion, which is owned and possessed by the petitioner in the connected petition, which even in fact is in complete defiance of the interim injunction so passed in the suit so instituted by the petitioners in the connected petition. Further relief has been sought for directing the State respondents to restore back the possession of the petitioner over their property being Arazi no.446 M area 4080 sq. ft., situate in Mauza Susuwahi, Pargana Dehat Amanat, Tehsil and District Varanasi while restoring status quo ante by restoring status of the property of petitioners as it stood prior to 16.08.2022 or as it existed on 10.08.2022 when the order dated 10.08.2022 was passed by Hon'ble Court in the leading petition and to further compensate the petitioners while paying compensation to the tune of Rs.10 lakhs.
6. Factual matrix of the case as worded in the leading and connected petitions are to the extent that Suman Singh w/o Jai Shankar (hereinafter referred to as petitioner in leading petition) claims to have purchased land being plot no. 446 area 2250 sq. ft. situate at Village- Susuwahi, Tahsil Sadar, District Varanasi by virtue of three separate sale deeds dated 29.5.2013, 9.7.2013 and 19.10.2013.
7. The petitioner in the leading petition further claims that consequent to the execution of the above noted three sale deeds, she was put in possession of the aforesaid plot of land being plot no. 446 area 2250 sq. ft. and she was continuing with enjoyment of the said piece of land. According to the petitioner in the leading writ petition, the respondents no. 4, 5 and 6 being Smt. Manju Devi w/o Gopal Prasad, Smt. Sunita Devi w/o Lalji Gupta, Smt. Lali Devi w/o Sri Gopichand Gupta by virtue of the sale deed dated 26.9.2014 purchased a part of the plot no.446 situate at Village- Susuwahi, Tahsil Sadar, District Varanasi admeasuring 2040 sq. ft.
8. Smt. Suman Singh, petitioner in the leading writ petition alleges that the respondents no. 4, 5 and 6 in the leading writ petition started interfering in the peaceful possession of the plot no. 446 (area 2250 sq. ft.) so owned by the petitioner, which compelled the petitioner Suman Singh to institute Original Suit No. 317 of 2018 before the Court of Civil Judge (Junior Division), Hawali, Varanasi titled as Smt. Suman Singh vs. Manju Devi and 2 others seeking relief of permanent injunction to restrain the defendants therein and the private respondents in the leading petition not to illegally dispossess the petitioner from the plot in question and to interfere in the peaceful possession of the property owned by the petitioner.
9. Records reveal that on 6.3.2018, the paper no. 6-C purported to be an application under Order 39 Rule 1 and 2 of CPC came to be decided by the Court of Civil Judge (Junior Division) Hawali, Varanasi in O.S. No. 317 of 2018, Smt. Suman Singh vs. Manju Devi and others, whereby temporary injunction was granted in favour of the petitioner in the leading writ petition restraining the defendant therein and the private respondents in the leading writ petition not to create any obstacles and hindrances over the possession of the petitioner herein till the next date of listing.
10. Pleadings further reveal that the private respondents in the leading writ petition being Smt. Manju Devi w/o Sri Gopal Prasad, Smt. Sunita Devi w/o Laljij Gupta and Smt. Lali Devi w/o Sri Gopichand Gupta instituted proceeding being O.S. No.7 of 2019 before the Court of Civil Judge (Senior Division), Varanasi (Smt. Manju Devi and 2 others vs. Smt. Suman Singh seeking relief of permanent injunction restraining the petitioner in the leading writ petition from interfering in the peaceful possession over the property, which is claimed to have been purchased by them being plot no. 446 (area 4080 sq. ft.) by virtue of sale deeds, which were two in number, dated 26.9.2015 each of 2040 sq. ft. In the said suit, an application under Order 39 Rules 1 and 2 seeking temporary injunction was also filed, in which on 3.1.2019 the Court of Civil Judge (Senior Division), Varanasi granted an ex-parte interim injunction restraining the petitioner in the leading writ petition and defendant in the suit from creating any obstacle / hindrance and restraining them from illegally encroaching and taking possession thereof.
11. On 19.1.2019, it appears that respondent no.4 in the leading writ petition being Smt Manju Devi w/o Sri Gopal Prasad preferred an application before respondent no.3 being Sub-Divisional Magistrate, Sadar, District Varanasi seeking measurement of the plot no.446 admeasuring 2040 sq. ft. situate at Village-Susuwahi, Tahsil Sadar, District Varanasi. On the said application, report was sought and the Revenue Inspector, Chitaipur, Tahsil Sadar, Varanasi submitted its report before the Lekhpal, wherein it was recited that physical inspection had been conducted and it was found that the Arazi No. 446 (area 2040 sq. ft.) is owned by the applicant Smt. Manju Devi and so far as measurement etc. is concerned, same can be done under Section 24 of the under U.P. Revenue Code, 2006.
12. Taking clue from the same, it appears that respondent no.6 in the leading writ petition being Smt. Lali Devi w/o Sri Gopichand Gupta preferred proceedings under Section 24 of the U.P. Revenue Code, 2006 for demarcation, which came to be decided in the proceedings in Case No. 17462 of 2019, Lali Devi Vs. State, wherein proceeding for demarcation under Section 24 of the U.P. Revenue Code, 2006 was forestalled on the ground that the parties had subjected themselves before the Civil Court under Common Law by filing their respective suits. Thereafter respondent no.7 being Gopi Chand Gupta husband of respondent no.6 Lali Devi in the leading petition preferred an application before respondent no.3/ Sub-Divisional Magistrate, Sadar, District Varanasi on 11.7.2020, wherein he has alleged that though they permanently reside in Bihar, however, on 20.6.2020 in the night, the husband of the petitioner herein in the leading writ petition being Jai Shankar got uprooted the gate and even in fact encroached upon the land while committing illegal acts despite the pendency of the civil suits by both the fractions and thus request was made that a suitable direction be issued to the Police Station - Lanka and Chowki Chitaipur to grant protection for undertaking construction activities and the other party be restrained from interfering in any manner whatsoever. The said application is on record as Annexure-8 at page-60 of the paper-book. On the said application, on 23.7.2020, the SDM, Varanasi submitted his report before the District Magistrate, Varanasi dated 23.7.2020 mentioning therein that the parties in question had purchased their respective pieces of plots through sale deeds and civil suit was pending before the Civil Court and a first information report had also been lodged against Jai Shankar and his wife Suman Singh being FIR No. 402 of 2020, under Sections 447, 323, 504, 506 and 427 IPC and was pending along with other criminal cases.
13. It appears from the record that respondent no.1 being the District Magistrate, Varanasi on 30.7.2020 issued a letter under his signatures addressed to SSP, Varanasi reciting the fact that criminal case was pending against the petitioner and her husband in the leading writ petition as referred to above and preventive action be taken to maintain peace and harmony.
14. On 31.8.2020, respondent no.7, Gopi Chandra Gupta son of Dukhanti Sav preferred an application before Respondent no.1/ District Magistrate, Varanasi for providing Police Force and a Team of Revenue Officers in order to remove illegal possession over the plot, which had been illegally encroached upon by the petitioner in the leading writ petition. A copy of the application dated 31.1.2020 is annexed as Annexure-11 at page 69. On the said application, the respondent no.2 being A.D.M, District Varanasi issued a communication addressed to respondent no.3 / S.D.M., Sadar, Varanasi for taking necessary action as per law.
15. Record reveals that on the basis of the application so preferred on 31.8.2020 by Sri Gopi Chandra Gupta (respondent no.7 in the leading writ petition) a communication was sent on 3.9.2020 under the signature of Respondent no.2 (Additional District Magistrate (City), Varanasi) addressed to the Respondent no.3 / S.D.M, Sadar, Varanasi. It appears that on 25.9.2020, the Revenue Inspector, Chitaipur, Sadar, Varanasi tendered his report. Thereafter an order was passed on 19.10.2020, pursuant whereto, the possession of the petitioner over the land so owned and possessed by the petitioner was disturbed and the petitioner in the leading writ petition was dispossessed by the Police officials on 7.11.2021 and the said fact found its presence in D.G. No. 067 dated 7.11.2021, copy whereof is annexed as Annexure-13-A at page 82/83 of the paper-book.
16. The petitioner being aggrieved against her dispossession from the property in question preferred a representation on 9.11.2020 before the District Magistrate, Varanasi/ respondent no.1 and alleging non-cooperation from it, she approached the Commissioner, Varanasi Region, Varanasi on 9.11.2020. Records reveal that on 11.11.2020. The Commissioner, Varanasi Region, Varanasi sent a communication to District Magistrate, Varanasi for taking appropriate action.
17. Alleging dispossession and consequent harassment, the petitioner has filed the leading writ petition.
18. On 14.7.2022, this Court proceeded to pass the following order: -
"Supplementary affidavit filed today is taken on record.
Indisputably, two civil suits are pending between the petitioner and private respondents in respect of plot no. 446. One of the suit was filed by the petitioner against the private respondents wherein an order of ad interim temporary injunction is operating in favour of the petitioner, against the private respondents. Another suit bearing no. 7 of 2019 is pending at the behest of private respondents against the petitioner in which also there is an interim injunction order in their favour.
It seems that while the suits remain pending, private respondent no. 7 filed an application before the administrative authorities alleging violation of injunction order passed in his suit by the petitioner. It was alleged that the petitioner had taken possession of his property in defiance of the injunction order. The prayer made in the application was for ensuring removal of unauthorized possession of the petitioner. On the said application, the Naib Tehsildar made an endorsement that the application was in respect of the grievance of the private respondents relating to a dispute of possession of the subject land. There is another endorsement calling for certain report and then an order by Sub-Divisional Magistrate, Sadar, Varanasi dated 12.10.2020 directing for constitution of a revenue team under Naib Tehsildar with further direction to the police to take action in the matter. The GD entry of 7.11.2020 shows that in pursuance of the direction of Sub-Divisional Magistrate, Sadar the police acting in an adjudicatory role in respect of dispute relating to possession between the parties dispossessed the petitioner thereby seeking to restore status quo ante.
It is vehemently contended by learned counsel for the petitioner that the administrative authorities as well as the police had no jurisdiction in the matter particularly, when the dispute was pending before the civil court.
We find considerable force in the submission of learned counsel for the petitioner. Prima facie, we find that the Sub-Divisional Magistrate who has directed the police force to intervene in the matter and under which direction, the police had dispossessed the petitioner, amounts to a gross abuse of the administrative powers. There is no order of the civil court holding that there was breach of injunction order nor any direction for restoring status quo ante.
We call upon respondent no.3 to remain present in the Court along with entire record and explain by filing his affidavit that under which provision of law he had directed the police to intervene in the matter in absence of any duly constituted proceeding before him, ignoring the fact that the dispute between the parties was pending before the civil court.
We may observe that the only role of the administrative authorities could be in relation to maintenance of law and order as also rightly directed by the District Magistrate in the first instance when the application was put up before him but we find that respondent no.3 has exceeded his authority in issuing the impugned direction and getting the petitioner dispossessed.
Meanwhile, we leave it open to respondent no.3, to revisit the matter and take remedial steps, if he deems fit and proper and in which event his personal appearance will remain dispensed with and an affidavit filed to the above effect will suffice.
List as fresh on 21st July, 2022.
Sri Dilip Kesarwani, learned Additional Chief Standing Counsel will communicate the instant order to respondent no.3 for necessary compliance."
19. An affidavit was filed on behalf of Respondent no.3 being S.D.M, Sadar, District Varanasi (present incumbent), wherein the Respondent no.3 in the leading writ petition had come up with a stand that she had joined the post in question on 1.7.2022 and the order was passed by the predecessor and thus the deponent therein had sought time to revisit the matter in compliance of the above noted order.
20. However, on 21.7.2022, this Court proceeded to pass the following order:
"Sri Sudarshan Singh has entered appearance on behalf of respondents no.4 to 7.
An application supported by affidavit of the incumbent on the post of S.D.M., Sadar, Varanasi has been filed stating that she joined the post on 1.07.2022. The action impugned was taken by her predecessor in office. She has prayed for two weeks further time to revisit the matter.
By our previous order dated 14.07.2022, we had directed respondent no.3 to remain present in the Court alongwith entire record and explain by filing his affidavit that under which provision of law, he had directed the police to intervene in a civil dispute between the parties.
The present incumbent informs the Court that the earlier order was passed by Sri Pramod Kumar Pandey, who is now posted as S.D.M., Lucknow. We direct the District Magistrate, Lucknow to serve a copy of the instant order as well as previous order of this Court dated 14.07.2022 upon Sri Pramod Kumar Pandey so that the orders are duly complied with. The said officer shall file his personal affidavit in compliance of our previous order dated 14.07.2022 and will remain present in Court on the next date.
The present incumbent will file her personal affidavit disclosing therein the decision taken by her in the meantime.
Registrar (Compliance) shall communicate the instant order as well as previous order dated 14.07.2022 to the District Magistrate, Lucknow for the purpose of serving these orders upon Sri Pramod Kumar Pandey posted as S.D.M. in District Lucknow.
List as fresh on 10.08.2022."
21. A personal affidavit was filed on behalf of the SDM, Varanasi / Respondent no.3 (present incumbent) manning the post in question. In the personal affidavit, in paragraphs- 5 to 8, the following averments were made: -
"5. That the deponent in compliance of the order dated 14.07.2022 and 21.07.2022 passed by this Hon'ble Court issued office order dated 01.08.2022 for spot enquiry/ verification in respect of the petitioner Smt. Suman Singh W/o Jaishankar Singh, constituting the team of the Revenue Officers mentioned therein along with the deponent, informing the both parties for spot enquiry/ verification fixing 03.08.2022 at 10 AM and also informed the S.O., Chitaipur, Varanasi to be present on the spot. Copy of the order dated 01.08.2022 passed by the Respondent No.3, is being annexed herewith and is marked as Annexure A-1 to this affidavit.
6. That the notices of the said spot enquiry/verification was duly served to the petitioner, Suman Singh W/o Shri Jaishankar, who refused to take notice thereof on 01.08.2022 and the Notice to Smt. Lali Devi W/o Gopichand Gupta was also informed through telephone and informed to her Karinda at spot, the copies of the said service of the Notices/information dated 01.08.2022 are annexed collectively as Annexure No.A-2 to this affidavit.
7. That the deponent reached at the spot in question on 03.08.2022 along with the Revenue Team with the Police Team and make enquiry/verification of the facts at spot Arazi Plot no. 446, Village-Susuwahi, Pargana-Dehat Amanat, Tahsil-Sadar, District-Varanasi and the spot inspection/ measurement was conducted in the presence of the petitioner and the representative of other respondents no. 4 to 6 namely, Gopichandra and in presence of the Revenue Team referred to above and the Police Team, PS-Chitaipur, Varanasi. The content of the spot inquiry report reveals the following facts:
(a) That as per the record the petitioner Smt. Suman Singh W/o Shri Jaishanker purchased land in Arazi no. 446, area-2250 sq. ft. i.e. 209.10 meter through three different sale deeds each of 750 sq. ft. through Sale Deeds dated 29.05.2013 09.07.2013 and 19.10.2013 from the Vendors thereof. The copy of the aforesaid sale deeds are annexed as Annexure Nos.A-3, A-4 & A-5 to this affidavit.
(b) That similarly the Respondents no. 4, 5 & 6 Smt. Manju Devi, Sunita Devi and Smt. Lali Devi also purchased the land forming S.M. Plot no. 446, area-4080 sq. ft. (379.18 sq. mtr.) situate at Village-Susuwahi, Pargana-Dehat Amanat, Tahsil-Sadar, District-Varanasi, through two different registered sale deeds dated 26.09.2015 each of area-2040 sq ft. i.e. 189.59) sq. mtrs. from the Vendors thereof. The copies of the said sale deeds dated 26.09.2014, are annexed as Annexure No.A-6 & A-7 to this affidavit.
(c) That according to the boundaries mentioned in the said sale deeds, towards the south of the land of petitioner Suman Singh, there is pucca Road (Rasta) and towards east, there is proposed Kachcha Rasta and towards North the land of Respondent nos. 4 to 6 are lying. The sketch Plan of the spot has been prepared at the spot showing the land (A), (B) and (C) along with the constructions.
(d) That it was found on spot enquiry, that the petitioner Smt. Suman Singh, was found in possession of the Plot no 446, area 2321.90 sq. ft. (215.71 Sq. Mtr.) along with the constructions made by her at the said land, whereas her area of the sale deed is total 2250 sq. ft. (209.03 Sq. Mtr.) only which is marked as (A) in the Sketch Plan of the spot enquiry/verification.
(e) That there is land area (610.41 sq. ft. lying towards North adjacent of the land of the Petitioner Smt. Suman Singh, marked with 'B' in the Sketch Plan.
(f) That towards the North of the said vacant land marked with 'B' the land of the Respondents no 4 to 6 along with Boundaries area-3373.59 sq ft. are lying which is marked with 'C' in the Sketch Plan.
(g) That according to the spot enquiry/ verification it has been found that the petitioner Smt. Suman Singh, who has purchased only 2250 sq. ft. (209.03 Sq. Mtr.) but she is in possession over 2321.09 sq. ft. (215.71 Sq. Mtr.) over which she has constructed multi-storied building along with Sahan and towards North of the said multi-storied building the land area 610.41 sq. ft. is lying vacant and towards North of the said land the Respondent Nos. 4 to 6 are in possession over 3373.59 sq.ft. whereas their purchased area is 4080 sq. ft.
(h) That the Petitioner and the Respondents no. 4 to 6 have approached to the Civil Court of competent jurisdiction and they have been granted interim injunctions orders with respect to their respective area of the land vice versa, which is mentioned in the spot inspection Report.
Copies of the injunction orders have already been annexed as Annexure No.2 and 4 to Writ Petition.
The copy of the spot enquiry/verification dated 03.08.2022 is annexed as Annexure No.A-8 to this affidavit.
8. That it is respectfully stated that from the perusal of the interim injunction passed by the Civil Court dated 06.03.2018 in the Suit No.317 of 2018 filed by the petitioner it is evident that the interim injunction was with respect to area of 209.10 sq. mtr., out of the total area of the Arazi No.446 as mentioned in the plaint. Apart from the aforesaid purchased land there is land area 610.41 sq. ft. lying vacant towards North adjacent of the land of the Petitioner Smt. Suman Singh, marked with 'B' in the Sketch Plan. The petitioner is still in possession of the total area of the land in respect of which the interim injunction was granted by the Civil Court. Therefore, there is no violation of the order dated 06.03.2018 passed by the Civil Court in Suit No.317 of 2018. Under the aforesaid circumstances no further action is required by the deponent as remedial measure with regard to the land of the petitioner."
22. On 10.8.2022, the following orders were passed: -
"Sri Ajay Kumar Singh, Advocate has filed his vakalatnama on behalf of respondents no.4 to 7. The same is taken on record.
The earlier incumbent on the post of Sub-Divisional Magistrate on whose direction the petitioner was allegedly dispossessed has filed his personal affidavit. Another affidavit has been filed on behalf of the present incumbent on the said post. Both the affidavits are taken on record.
Sri M.C. Chaturvedi, learned Additional Advocate General on behalf of State Respondents prays for and is granted a week further time to file appropriate affidavits. Accordingly, the matter is adjourned for a week.
List as fresh on 18.8.2022.
In the meantime, respondent no.3 will file a better affidavit.
When the case is listed next, name of Sri Ajay Kumar Singh shall be shown in the cause list as counsel for the respondents."
23. Thereafter in compliance of the order dated 10.8.2022 passed by this Court, the earlier incumbent, who was holding the post of SDM, Sadar, Varanasi submitted a personal affidavit dated 18.8.2022 followed by an affidavit filed on behalf of the present incumbent holding the post of SDM, Sadar, Varanasi, wherein in paragraphs 3 and 4, the following have been averred: -
"3. That it is respectfully stated that in compliance of the order dated 14.07.2022 as well as order dated 21.07.2022 passed by this Hon'bie Court the deponent revisited the matter and passed order dated 13.08.2022 directing the petitioner as well as Respondent No.4 to 6 to restore the status with regard to possession as was existing on 31.08.2020. Copy of order dated 13.08.2022 passed by the deponent, is being annexed herewith and is marked as Annexure A-1 to this affidavit.
4. That the aforesaid order passed by the deponent was duly complied with and the possession of the petitioner was restored on 16.08.2022 in the presence of the Revenue Team. The proceeding of restoration of possession has been duly signed by the petitioner. Copy of the aforesaid proceeding dated 16.08.2022, is being annexed herewith and is marked as Annexure A-2 to this affidavit."
24. As per the affidavit dated 18.8.2022 of Respondent no. 3/ S.D.M., Sadar, Varanasi, a stand has been taken that Respondent no.3 has revisited the matter while passing the order dated 13.8.2022 directing the petitioner herein and the respondent nos. 4 and 6 in the leading petition to restore status quo ante with regard to the possession as existed on 31.8.2020 and the parties were also put to liberty to get their individual rights decided under Common Law in the pending suits. Further, it has also been narrated that on spot inquiry, it was found that the petitioner in the leading petition, Smt. Suman Singh was found in possession of plot no. 446 (area 2321.90 sq. ft.) along with constructions made by her, whereas her area of sale deed is total 2250 sq. ft. (209.10 sq. meter) and thus she was in possession of excess land.
25. We have heard Shri Abhishek Kumar, learned counsel for the petitioner in the leading petition and for Respondent no.5 in the connected writ petition, Sri M.C. Chaturvedi, learned Addl. Advocate General assisted by Ms. Akanksha Sharma, Advocate for State-respondent as well as Sri Ajay Kumar Singh along with Shri Tejas Singh appearing for Respondents no. 4 to 7 in the leading petition and petitioners in the connected writ petition.
26. Since the parties in question are represented through their counsel and they have given their consent for disposal of the writ petition at the admission stage on the basis of the affidavits so exchanged between them, thus this Court is proceedings to finally decide the issue in question.
27. Undisputedly the petitioner in leading writ petition claims to be the owner of the land admeasuring 225.06 sq. mt. being plot no. 446 situate at Village Sushwahi, Tehsil Sadar, District Varanasi by virtue of three separate sale deeds dated 29.5.2013, 9.7.2013 and 19.10.2015 for an area of 750 sq. ft. each. Similarly, so far as respondent nos. 4 and 6 in the leading writ petition are concerned, they claim to have been in possession and recorded title holders of an area of 4080 sq. ft. of the aforesaid Arazi/ plot of land by virtue of two registered sale deeds dated 26.9.2015.
28. It is not under dispute that the petitioner in the leading writ petition being Suman Singh had instituted Original Suit no.317 of 2018 before the Court of Civil Judge (Senior Division), Varanasi, Smt. Suman Singh vs. Smt. Manju Devi and 2 others, in which she had obtained the interim injunction dated 06.3.2018, so much so, respondent nos. 4 to 6 in the leading writ petition had also instituted O.S. No.7 of 2019 before the Court of Civil Judge (Senior Division), Varanasi, Smt. Manju Devi and 2 others vs. Smt. Suman Singh, in which injunction had been granted on 3.1.2019 by Civil Judge (Senior Division), Varanasi.
29. As per the pleadings so set forth in both the writ petitions, it is explicitly clear that both the parties are litigating their rights before the competent court of law and as per their own saying they are possessed with injunction orders in their respective suits. Notably as discussed above at first instance, Respondent no.4 in the leading petition and petitioner no.1 in the connected writ petition sought administrative intervention before Respondent no.3 for measurement of her plot on 19.1.2019 and on 29.1.2019, Respondent no.3 informed Respondent no.4 in the leading petition and the petitioner in the connected writ petition that she should undertake proceedings for demarcation under Section 24 of the U.P. Revenue Code. Thereafter Respondent no.6 in the leading writ petition and petitioner no.3 in the connected writ petition took recourse to demarcation, however Respondent no.3 forestalled the claim for demarcation vide order dated 22.6.2022 on the ground that the matter was pending before the competent civil court and thus it was not possible to conduct the demarcation. Being unsuccessful on two occasions, Respondent no.7 in the leading writ petition, who happens to be the husband of Respondent no.6 proceeded to make an application before Respondent no.3 on 11.7.2020 with regard to grant of security to raise construction, as according to him the gates had been uprooted and encroachment had been made by the petitioners in the leading writ petition. Sub-Divisional Magistrate on the basis of the application so preferred by Respondent no.7 in the leading writ petition directed the Tahsil Authorities to submit a report and on 23.7.2020, Tehsil Authorities tendered their comments and a letter was thereafter issued by Respondent no.3 which was addressed to Respondent no.1. In the meantime, on 30.7.2020 Respondent no.1 requested the SSP, Varanasi to take preventive action against the petitioner in the leading petition, in case they had occupied and raised construction over the land owned by others. Being not satisfied with the above noted actions, the respondent no.7 again preferred an application before Respondent no.3 with a request to provide police force and a team of police officials to remove illegal possession over the land so claimed to be possessed by Respondents no. 4 to 7. Thereafter proceedings were drawn and it is being alleged that the possession of the land in question, which is claimed to be possessed by the petitioner in the leading writ petition stands delivered to the respondents. The other side of the story which is being sought to be erected by Respondent no.4 to 7 in the leading writ petition and petitioners no. 1 to 4 in the connected petition is that now in the garb of the orders passed by this Court on 14.7.2021 and 21.7.2021, the possession of the land in question was being taken away from them and was being handed over to the petitioners in the leading writ petition, putting them in possession over land which was in excess of their ownership.
30. Sri Abhishek Kumar, learned counsel for the petitioner in the leading writ petition and Respondent no.5 in the connected petition has sought to argue that the taking over of the possession on 7.11.2020 by the district administration pursuant to the application so preferred by the private respondents in the leading writ petition was without any authority of law, as once the matter itself was engaging the attention of the Civil Court in appropriate proceedings by way of suits and injunction orders were operating, then the District Administration could not have intervened in between and played an adjudicatory role. To elaborate his submission, Sri Abhishek Kumar argued that the district administration was well aware about the factum of the institution of the suit, pendency and operation of injunction orders and thus while taking resort to the proceedings of handing over the possession not only the orders of the Civil Courts were circumvented, but the administrative authorities interfered with and obstructed judicial proceedings.
31. According to Sri Abhishek Kumar, pursuant to the orders passed by this Court on 14.7.2021 and 21.7.2021, now possession had been delivered to the petitioner while passing the orders dated 13.8.2022 and 16.8.2022 and as per his instructions, the petitioner in the leading writ petition and Respondent no.5 in the connected writ petition had neither encroached nor was in possession of even a single inch of land in excess, which was claimed to be possessed by Respondents no. 4 to 7 in the leading writ petition and petitioner in the connected writ petition.
32. Sri Ajay Singh assisted by Sri Tejas Singh who appears for Respondents no. 4 to 7 in the leading writ petition and petitioners in the connected petition have argued that the writ petition so framed and instituted by the petitioner herein is not maintainable as once, admittedly, civil suits are pending inter se between the parties and injunction orders are operating, then the proper recourse for the petitioner herein was to move an appropriate application in the pending suit either by way of amendment or impleadment in that regard.
33. Sri Singh has further argued that in the guise of the orders dated 14.7.2021 and 21.7.2021 passed by this Court, now the State authorities have dispossessed Respondents no. 4 to 7 in the leading petition and the petitioners in the connected petition, while handing over the possession of the entire land so owned by them to the petitioner in the leading petition. He thus seeks not only quashing of the order dated 13.8.2022 passed by Respondent no.3 followed by delivery of possession but also seeks compensation to the tune of Rs.10 lakhs for illegal dispossession.
34. Sri M.C. Chaturvedi, learned Addl. Advocate General assisted by Ms. Akanksha Sharma has argued that consequent to the passing of order dated 14.7.2021 and 21.7.2021, possession had been delivered back to the petitioner in the leading petition as appropriate orders had been passed on 13.8.2022 and as per his instructions the petitioner in the leading petition was possessing excess land. However, now the parties in question had been directed to get their rights adjudicated in the Civil Courts.
35. This Court is conscious of the fact that in the past also contingencies had arisen wherein despite pendency of suits before the Civil Courts and operation of injunction orders at the instance of private parties in relation to a private party, the District Administration intervened in the matter. Taking serious note of the same in Writ-C No. 4362 of 2014, Sayeed Khan vs. State of U.P, certain directions were issued on 3.11.2014 and 1.12.2014, and the State Government therefore proceeded to issue a Government Order dated 1.12.2014 clearly restraining the administrative authorities in interfering or adjudicating matters, which were within the domain of the civil courts. The Government Order dated 10.9.2014 is quoted hereinunder: -
"संख्या-491रिट / छः-पु-3-2014-2(94)पी /2014 प्रेषक, आलोक रंजन, मुख्य सचिव, उत्तर प्रदेश शासन सेवा में, समस्त जिला मैजिस्ट्रेट, उ०प्र०, समस्त वरिष्ठ पुलिस अधीक्षक / पुलिस अधीक्षक, उ०प्र० ।
गृह (पुलिस) अनुभाग-3 लखनऊ : दिनांक : 01 दिसम्बर, 2014 विषय :- निजी पक्षों (private parties) के मध्य अचल सम्पत्ति विवाद से संबंधित प्रकरणों पर प्रशासनिक अधिकारियों द्वारा विधि अनुसार कार्यवाही किये जाने के सम्बन्ध में।
महोदय, यह संज्ञान में आया है कि निजी पक्षों (private parties) के मध्य अंचल सम्पत्ति के विवादों के कतिपय प्रकरणों, जो सम्बन्धित न्यायालय में लम्बित हैं / विचाराधीन थे तथा जिनमें न्यायालय द्वारा अंतरिम आदेश पारित है, में प्रशासनिक एवं पुलिस अधिकारियों द्वारा अपने क्षेत्राधिकार के परे जाकर आदेश पारित कर दिया गया है तथा कब्जा हस्तान्तरण भी कर दिया गया है। इस प्रकार से निर्णय लिये जाने पर मा० उच्च न्यायालय द्वारा अत्यन्त रोष व्यक्त किया गया है। इस सम्बन्ध में मा० न्यायालय ने रिट याचिका संख्या - 43827 / 2014 सईद खान बनाम् उ०प्र० राज्य व 03 अन्य (जनपद बरेली) के प्रकरण. में दिनांक 3-11-2014 को निम्नवत् आवेश पारित किया है :
Additional City Magistrate in his Affidavit has referred to the Government Orders dated 15.5.2012, 30.4.2013 and 7.6.2014 as the source of power for entering into the dispute between two private. persons in respect of immovable property and in interpreting the interim order passed by the Civil Court.
Prima facie, we are of the opinion that such reading of the Government Order by the Additional City Magistrate is wholly perverse. A Government Order deals with the removal of difficulties of citizens of this country, which they face in the matter of getting their work done in various government Organizations/Departments of Uttar Pradesh. These Government Orders do not authorize any authority of the state to enter into any private dispute of two persons.
Learned Standing Counsel is directed to obtain instructions from Chief Secretary, Government of U.P., as to whether the Additional City Magistrate in the garb of Government Orders referred to above is permitted to enter into private disputes during the "Janata Darshan" etc. or not."
2- इसके अतिरिक्त एक अन्य रिट याचिका संख्या-55049 / 2014 गौरव यादव बनाम् कमिश्नर, कानपुर भण्डल एवं 04 अन्य के प्रकरण में भी मा० न्यायालय द्वारा दिनांक 14-10-2014 को इसी प्रकार रोष प्रकट किया गया है।
3- जन समस्याओं का निराकरण शासन की सर्वोच्च प्राथमिकता है, जिसके लिए समय-समय पर दिशा-निर्देश भी निर्गत किये गये हैं। इस सम्बन्ध में यह स्पष्ट किया जाता है कि निजी व्यक्तियों के मध्य अचल सम्पत्ति के विवाद सम्बन्धी प्रकरण, जो दीवानी न्यायालय मा० उच्च न्यायालय अथवा अन्य न्यायालयों में लम्बित हैं या जिनमें मा० न्यायालय द्वारा अंतरिम आदेश पारित हैं, में प्रशासनिक एवं पुलिस अधिकारियों द्वारा विधि अनुसार ही कार्यवाही की जायेगी और क्षेत्राधिकार से परे कोई आवेश नहीं दिया जायेगा । दीवानी प्रकृति के प्रकरणों में अधिकारिता युक्त न्यायालय ही आदेश पारित करने में सक्षम है।
4- स्पष्ट किया जाता है कि ऐसे प्रकरणों में शांति व्यवस्था बनाये रखने का दायित्व प्रशासनिक एवं पुलिस अधिकारियों पर ही है। यह भी स्पष्ट किया जाता है कि न्यायालय के आदेशों का सम्यक् अनुपालन कराना सुनिश्चित किया जाय, किन्तु सरकारी / सार्वजनिक सम्पत्ति पर अवैध कब्जा, अतिक्रमण या उसका दुरूपयोग कदापि नहीं होने दिया जायेगा । यह सुनिश्चित करने का दायित्व प्रशासनिक एवं पुलिस अधिकारियों व अन्य विभागीय अधिकारियों का होगा।
5- उक्त आदेशों का कड़ाई से अनुपालन सुनिश्चित किया जाय।"
36. Ultimately, this Court in the case of Sayeed Khan (supra), took notice of the Government Order. The order dated 3.12.2014 passed in Writ Petition No.43627 of 2014 is quoted hereinunder: -
"List again with the name of Shri Anil Tiwari, counsel for respondent no.5.
Shri A. K. Goel, learned Additional Chief Standing Counsel has produced the copy of the government order dated 1.12.2014 issued by the Chief Secretary of the State whereby it has been provided that in the matters pertaining to immovable property between private persons where dispute is pending before the competent Civil Court/High Court and other Courts, the Administrative Authorities like the District Magistrates and Senior Superintendents of Police should act within their authority and within the four corners of the law. It has been explained that in such matters only competent Courts have jurisdiction to pass orders. But, this order will not be applicable qua the government and public properties. A copy of the government order dated 1.12.2014 is kept on record.
In view of the order of the State Government referred to above, the Additional City Magistrate shall revisit his order dated 26.4.2014 and do the needful.
List the matter in the 2nd week of January 2015."
37. Entire gamut of the argument of the counsel for the petitioner as well as for the respondents centres around illegal action of the State and its instrumentalilties in taking possession of the land, which is claimed to be owned by it at first instance by the petitioner in the leading petition and at the second instance, the Respondent no.4 to 6 in the leading writ petition, wherein now it is being sought to be alleged that the possession, which has been handed over by virtue of the order dated 13.8.2022 and the possession memo dated 16.8.2022 to the petitioner in the leading petition is in excess of the land claimed to be owned by them.
38. This Court finds that once the parties themselves have taken the recourse to remedy under the Common Law while instituting appropriate suits before the competent court of law and have obtained injunctions, then it is for them to get their rights adjudicated while filing appropriate application under the relevant Code in the pending suit.
39. The Hon'ble Apex Court in the case of Mohan Pandey and another vs. Usha Rani Rajgaria (SMT) and others, reported in (1992) 4 SCC 161 in paragraph 63, the following was observed: -
"It has repeatedly been held by this court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. And in such a case, the court will issue appropriate direction to the authority concerned. If the grievance of the respondent is against the initiation of criminal proceedings, and the orders passed and steps taken thereon, she must avail of the remedy under the general law constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extra-ordinary and should not be exercised casually or lightly. We, therefore, hold that the High Court was in error in issuing the impugned direction against the appellants by their judgement under appeal."
40. The Hon'ble Apex Court in the case of Swetambar Sthanakwasi Jain Samiti and another vs. Alleged Committee of Management Sri R.J.I. College, Agra and others, reported in (1996) 3 SCC 11 in paragraph 8, the following was observed: -
"We are of the view that the High Court not only fell into patent error but also exceeded its jurisdiction under Article 226 of the Constitution of India. Though the jurisdiction or the High Court under Article 226 of the Constitution is not confined to issuing the prerogative writs, there is a consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a civil court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial court - against which the remedy of appeal or revision is available - cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional court and interfere with the interim/miscellaneous orders of the civil court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum."
41. Yet the Hon'ble Apex Court in the case of Roshina T. vs. Abdul Ajeez K.T. and others, (2019) 2 SCC 329 in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19, has held as under: -
"9. In our considered opinion, the writ petition filed by Respondent 1 under Articles 226/227 of the Constitution of India against the appellant before the High Court for grant of relief of restoration of the possession of the flat in question was not maintainable and the same ought to have been dismissed in limine as being not maintainable. In other words, the High Court ought to have declined to entertain the writ petition in exercise of extraordinary jurisdiction under Articles 226/227 of the Constitution for grant of reliefs claimed therein. e 10. It is not in dispute that the reliefs for which the writ petition was filed by Respondent 1 herein against the appellant pertained to possession of the flat. It is also not in dispute that one Civil Suit No. 807 of 2014 between the appellant and Respondent 1 in relation to the flat in question for grant of injunction was pending in the Court of Munsif at Kozhikode. It is also not in dispute that the appellant and Respondent 1 are private individuals and both are claiming their rights of ownership and possession over the flat in question on various factual grounds.
11. In the light of such background facts arising in the case, we are of the considered opinion that the filing of the writ petition by Respondent 1 herein against the appellant herein under Articles 226/227 of the Constitution of India in the High Court, out of which this appeal arises, was wholly misconceived.
12. The question as to who is the owner of the flat in question, whether Respondent 1 was/is in possession of the flat and, if so, from which date, how and in what circumstances, he claimed to be in its possession, whether his possession could be regarded as legal or not qua its real owner, etc. were some of the material questions which arose for consideration in the writ petition.
13. These questions, in our view, were pure questions of fact and could be answered one way or the other only by the civil court in a properly constituted civil suit and on the basis of the evidence adduced by the parties but not in a writ petition filed under Article 226 of the Constitution by the High Court.
14. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.
15. In our view, the writ petition to claim such relief was not, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by Respondent 1 (writ petitioner) in the civil court.
16. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was Respondent 1 (writ petitioner) who was in possession of the flat and, therefore, he be restored with his possession of the flat by the appellant.
17. In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a civil court. In our view, it was not permissible.
18. The learned counsel for Respondent 1, however, strenuously urged that the impugned order¹ does not call for any interference because the High Court has proceeded to decide the writ petition on admitted facts.
19. We do not agree with the submissions of the learned counsel for Respondent 1 for the reasons that first there did exist a dispute between the appellant and Respondent 1 as to who was in possession of the flat in question at the relevant time; second, a dispute regarding possession of the said flat between the two private individuals could be decided only by the civil court in civil suit or by the criminal court in Section 145 CrPC proceedings but not in the writ petition under Article 226 of the Constitution."
42. Moreso,this Court finds that under Article 226 of the Constitution of India disputed questions cannot be gone into, particularly in view of the fact that though one fraction is coming up with a stand that its land has been encroached upon by other fraction, but the other fraction is disputing the same. Meaning thereby the disputed questions of fact arise, which are in fact of complex nature, which require determination through oral and documentary evidence, which is not permissible in writ jurisdiction.
43. In the case of Punjab National Bank and others vs. Atmanand Singh, reported in (2020) 5 SCC 256 in paragraphs 22, 23, 24 and 25, the Hon'ble Apex Court has held as under: -
"22. We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law.
23. In the next reported decision relied upon by the respondent No. 1 in Babubhai (supra), no doubt this Court opined that if need be, it would be open to the High Court to cross-examine the affiants. We may usefully refer to paragraph 10 of the said decision, which reads thus: (SCC pp.715-16) "10. It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality [(1969) 3 SCC 769]. If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect."
(emphasis supplied) This decision has noticed Smt. Gunwant Kaur (supra), which had unmistakably held that when the petition raises complex questions of facts, the High Court may decline to try a petition. It is further observed that if on consideration of the nature of the controversy, the High Court decides to go into the disputed questions of fact, it would be free to do so on sound judicial principles. Despite the factual matrix in the present case, the High Court not only ventured to entertain the writ petition, but dealt with the same in a casual manner without adjudicating the disputed questions of fact by taking into account all aspects of the matter. The manner in which the Court disposed of the writ petition, by no stretch of imagination, can qualify the test of discretion having been exercised on sound judicial principles.
24. In Hyderabad Commercials (supra), on which reliance has been placed, it is clear from paragraph 4 of the said decision that the Bank had admitted its mistake and liability, but took a specious plea about the manner in which the transfer was effected. On that stand, the Court proceeded to grant relief to the appellant therein, the account holder. In the present case, however, the concerned officials of the Bank have denied of being party to the stated agreement and have expressly asserted that the said document is forged and fabricated. It is neither a case of admitted liability nor to proceed against the appellant Bank on the basis of indisputable facts.
25. Even the decision in ABL International Ltd. (supra) will be of no avail to the respondent No. 1. This decision has referred to all the earlier decisions and in paragraph 28, the Court observed as follows:-
"28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."
(emphasis supplied)"
44. Applying the principles of law, so culled out in the above noted decision, inescapable conclusion stands drawn that once the parties are claiming their right before the Civil Court while taking recourse to the remedies as available under law then proceedings under Article 226 of the Constitution of India are not maintainable, as the only recourse open to the aggrieved party is to approach the civil court in the pending suit for redressal of its grievances.
45. Nonetheless, there is an additional factor, which needs to be noticed at this stage which is relatable to the fact that the question as to who is in the possession and as to what is the extent a matter is to be decided. This obviously presupposes necessary exercise which is to be undertaken while recording finding with respect to not only the three golden principles being prima facie case, balance of convenience and irreparable loss, but also with regard to the factual possession, which exists on the site in order to determine as to which of the parties either plaintiff or defendant is in possession. The aforesaid aspect of the matter was noticed by the Hon'ble Apex Court in the case of Kishore Kumar Khaitan and another vs. Praveen Kumar Singh, reported in (2006) 3 SCC 312, wherein in paragraphs 4, 5 and 10, the Hon'ble Apex Court as observed as under: -
"4. It is the case of the plaintiff that the suit property was leased to him by the first defendant on 17.4.1998 and that the transaction was evidenced by writing in the letter-head of Khaitan Paper Machine Limited owned by the first defendant. According to the plaintiff, there was an earlier litigation between the first defendant and one Shivanand Mishra, Shivanand Mishra claiming a tenancy over a portion of the present suit premises and at the instance of the present plaintiff, that suit was compromised, as part of the compromise a sum of Rs.2 lakhs was paid to Shivanand Mishra and Shivanand Mishra gave up his claim of tenancy. According to the plaintiff, the said sum of Rs.2 lakhs which was paid to Shivanand Mishra was advanced by him to the first defendant and it was in consideration of the same and the help rendered by the plaintiff in the matter of settling the dispute with Shivanand Mishra, that the first defendant agreed to handover possession of the suit premises to the plaintiff immediately after recovering possession from Shivanand Mishra and it was in furtherance of the promise that the tenancy agreement was executed on 17.4.1998. Thus, the plaintiff claimed that he had been put in possession of the suit property as a tenant. In derogation of the tenancy thus created in his favour, the defendants were attempting to dispossess the plaintiff forcibly and it was in that situation that the plaintiff was filing the suit for a declaration of his tenancy rights over the suit property and for a perpetual injunction restraining the defendants from interfering with his possession as a tenant. As already noticed, though the plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Code for an interim injunction restraining the defendants from interfering with his possession, the trial court did not pass an ad interim order of injunction, but only issued notices to the defendants calling upon them to show cause why the prayer for injunction shall not be granted. It is against this refusal of ad interim injunction ex parte, that the plaintiff filed the appeal before the District Court in which, on 19.6.1998, the Additional District Judge passed an ad interim ex parte order directing both the parties to maintain status quo.
5. It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one court had found no reason to grant an ex parte order of injunction and the appellate court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial court, since the appeal was only against the refusal of an ad interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdiction.
.....
10. It is seen that after the remand, the parties produced some evidence. The Additional District Court set out the arguments on the side of both the parties. Then it referred to certain decisions cited by the parties. It observed that there was at least some prima facie foundation in the claim of the plaintiff that the tenancy agreement was executed by defendant No.1 and whether it was concocted out of a signed blank letter head and whether it had legal force could only be decided in the suit. It did not discuss the oral evidence that was taken pursuant to the order of remand and merely stated that it has perused the evidence. After referring to some cash memos and money receipts produced by the plaintiff, it held that they prima facie showed that the plaintiff was in possession. Then it abruptly observed that at least prima facie it is proved that the plaintiff was in possession of the suit property on 19.6.1998, the date of the passing of the order of status quo. It stated that as such his possession must be restored and it was a fit case where the court should invoke its inherent jurisdiction to order restoration of possession."
46. The above noted judgment itself clearly mandates that the courts while granting temporary injunction under Order 39 Rules 1 and 2 of CPC are not only to adhere to the commonly known legal principles of prima facie case, balance of convenience and irreparable loss, but also to take note of the fact that while directing maintenance of status quo, finding should be recorded as to what would be the status quo while also reciting and recording the satisfaction that too prima facie with relation to the basis as well as the factors, which entitled the plaintiff to be bestowed with the benefit of the status quo. To put it otherwise, simplicitor status quo is not permissible in law, however, not only satisfaction is to be attached while granting status quo, basis has also to be indicated.
47. Now, a question arises whether in the present proceedings, adjudication can be done with relation to disputed question of facts involved when one party asserts that the other party is in excess of the possession of the land vis-a-vis the area earmarked in the sale deed and the other party is claiming that it has not encroached upon the land and constructions of the other party. Allegations also find their presence that the State and its functionaries have delivered excess possession. In the opinion of the Court, writ jurisdiction is not the appropriate remedy for resolving the said disputes as the parties can assert their claim in the pending suits.
48. In view of the provisions contained under Order 1 Rule 10 of the C.P.C. 1908, it is always open to respondent nos. 4 and 7 in the leading writ petition and the plaintiff in the Original Suit No. 7 of 2009 to file appropriate application for not only impleading the State and instrumentalities but also preferring appropriate application under Order 6 Rule 17 of C.P.C. for amending plaint while seeking relief of recovery of possession of their claimed land/premises. As a matter of fact, the plantiff is the dominus litis of the suit.
49. The Hon'ble Supreme Court in the case of Ramesh Hirachand Kundanwal Vs. Municipal Corporation Greater Bombay and others reported in (1992) 2 SCC 524 in paragraphs 5, 6, 7 and 8, observed as under:
"It was argued that the Court cannot direct addition of parties against the wishes of the plaintiff who cannot be compelled to proceed against a person against whom he does not claim any relief. Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though under Order I Rule 3, to avoid multiplicity of suit and needless expenses, all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendent even though the plaintiff does not think that he has any cause of action against him. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit.
Sub-rule(2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.
The respondents do not seriously dispute the position that the second respondent is not a necessary party to the suit in the sense that without their presence an effective order cannot be passed. However, they support the view that respondent No. 2 is a proper party whose presence is necessary for a complete adjudication on the controversy. In the light of the clear language of the Rule, it is not open to the appellant to contend that a person cannot be added as defendant even in a case where his presence is necessary to enable the Court to decide the matter effectively.
The case really turns on the true construction of the Rule in particular the meaning of the words "whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit." The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the Rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions."
50. Recently in Civil Appeal No. 5522 to 5523 of 2019, Gurmit Singh Bhatia Vs. Kiran Kant Robinson and others decided on 17.07.2019, the Hon'ble Apex Court in paragarph 5.2, Page 8 has observed as under:
"5.2 An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character. In paragraphs 15 and 16, this Court observed and held as under:
"15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed.
Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha [(1996) 10 SCC 53] this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.
16. That apart, from a plain reading of the expression used in subrule (2) Order 1 Rule 10 CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale."
That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi(supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs."
51. In view of the aforesaid legal proposition, it is explicitly clear that respondent nos. 4 to 7 being the plaintiffs in Original Suit No. 7 of 2019 are dominus litis and it is always open for them to make appropriate application to implead State and its instrumentalities against whom cause of action has arisen, coupled with the fact that there action tantamounted to legal injury but also to file appropriate application seeking amendment in plaint and in the reliefs in that regard.
52. Cumulatively analyzing the present case from four corners of law, this Court finds that the present proceedings which is being sought to be invoked for the direction to grant relief in toto cannot be proceeded with in the factual backdrop of the fact that the parties being the petitioner and the respondents are themselves litigating their legal right before the competent court of law while drawing proceeding in civil suit and the proceedings admittedly are pending before the competent Civil Court. The injuctions being operative and on top of it serious disputed questions of fact are involved which not only requires deeper scrutiny into factual aspects but also requires recording of oral and documentary evidence which in the present proceedings is not permissible in view of the contested claim of the parties.
53. Accordingly, both the writ petitions are dismissed at the stage leaving it open to the parties to get their rights adjudicated in the respective suit so preferred by them, while preferring appropriate applications for impleadment of the parties and seeking amendment in the plaint or in the written statement as the case may be as per law. This Court has no reason to disbelieve that in case the parties prefer impleadment application in consonance with Order 1 Rule 10 of CPC and amendment under Order 6 Rule 17 of CPC for amending their pleadings, then the same shall be decided with utmost expedition, obviously subject to the roaster so maintained by the court below and subject to any legal impediment.
55. Passing of the order today may not be construed to an expression that this Court has gone into the merit of the lis, as it is always open for the competent court of law to decide the matter without being influenced or obsessed by any of the observations made hereinabove.
Order Date :- 20.10.2022 N.S.Rathour