Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12655 of 2010 ====================================================== Kuldeep Hathi S/O Harilal Hati R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi .... .... Petitioner Versus 1. Umesh Kumar Jha S/O Yogendra Jha R/O Vill.- Dumarbana, P.S. Pupari, Distt.- Sitamarhi 2. Bindh Kala Devi W/O Rajlal Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 3. Ramashray Kapar S/O Late Ugrah Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 4. Shivaji Kapar S/O Late Bhullar Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 5. Jahari Devi W/O Late Ram Charitra Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 6. Baidyanath Kapar S/O Late Ram Charitra Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 7. Raghunath Kapar S/O Late Ram Charitra Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 8. Sumitra Devi W/O Lalbabu Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 9. Amit Kapar S/O Late Lal Babu Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 10. Devanand Kapar S/O Late Raji Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 11. Bhuneshwar Kapar S/O Late Bala Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 12. Jharani Devi W/O Late Dhaneshwar Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 13. Bhogendra Kapar S/O Late Dhaneshwar Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 14. Shanti Devi D/O Late Upendra Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 15. Nageshwar Kapar S/O Late Kuldeep Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 16. Bilash Kapar S/O Late Bhunna Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 17. Punti Devi W/O Late Likhi Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 18. Shambhu Kapar S/O Late Likhi Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 19. Ganesh Kapar S/O Late Likhi Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi 20. Naresh Kapar S/O Late Likhi Kapar R/O Vill.- Jadupatti, P.S. Pupari, Distt.- Sitamarhi .... .... Respondents ====================================================== Patna High Court CWJC No.12655 of 2010 (10) dt.12-03-2013 2 Appearance : For the Petitioner : M/s Bimal Kumar &. Birendra Kumar. Advocates For the Respondent No. 1 : Mr. Ritesh Kumar Narain Singh, Advocate ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 10 12-03-2013 I have heard learned counsel for the petitioner and the respondent no. 1.
Legal Reasoning
The defendant-respondent-petitioner seeks quashing of the judgment dated 12.05.2010 rendered by the Ist Additional District Judge, Sitamarhi, in Miscellaneous Appeal No. 1/07, as contained in Annexure 2, by which he has allowed the Miscellaneous Appeal after setting aside the order dated 19.01.2007 passed by the Sub Judge I, Sitamahri in Title Suit No. 128 of 2006 and has restrained both the parties, i.e., the plaintiff and the defendant from making any further construction over the suit land and they have also been directed to maintain status quo. Learned counsel for the defendant-petitioner submitted that the respondent no. 1, i.e., the plaintiff, has preferred Title Suit No. 128 of 2006 for declaration that the plaintiff had obtained right, title and possession through the sale deed dated 24.01.2005 executed by one Sheoji Kapar in his favour. The plaintiff had sought declaration that the sale deed in favour of the defendant no. 1-petitioner dated 07.10.2005 executed by the defendant second party to be a wrong, fraudulent, illegal and inoperative document 2 Patna High Court CWJC No.12655 of 2010 (10) dt.12-03-2013 3 and so it would not be binding upon the plaintiff. Further declaration sought in the suit is that the defendant first party had illegally dispossessed the plaintiff in the night of 25/26-05-2006 and, thus, a decree for delivery of possession has also been sought apart from seeking permanent injunction against the defendant. It is further submitted on behalf of the petitioner that a written statement has also been filed on his behalf in the suit refuting the allegations made in the plaint. The plaintiff filed a petition under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter to be referred to as “the Code”) for restraining the defendant no. 1-petitioner from raising further construction on the suit land. However, the Sub-Judge I, Sitamarhi, vide Annexure 1 dated 19.01.2007, rejected the petition after finding that the plaintiff is admittedly not in possession of the land so no inconvenience is likely to be caused to him and also, since the present possession of the defendant is admitted, the balance of convenience hinges in favour of the defendant. The aforesaid order was challenged in an appeal upon which the impugned judgment has been passed. Notice was earlier issued to respondent no. 1 vide order dated 28.04.2011 and in response thereto the respondent no. 1 has appeared in this case and filed I.A. No. 8240 of 2012 for vacating 3 Patna High Court CWJC No.12655 of 2010 (10) dt.12-03-2013 4 the interim relief granted vide the aforesaid order, however, the
Decision
parties have been finally heard on merit of the writ petition itself which is being disposed of by this order. Learned counsel for the respondent no. 1has submitted that the plaintiff-respondent no. 1 had purchased a piece of land from one Sheoji Kapar son of late Bhullar Kapar on 07.10.2005 and, thereafter, came in possession of the land and started construction of the boundary wall. However, that was objected by the defendant first party who was claiming on the basis of the sale deed dated 07.10.2005, i.e., about two weeks prior to the sale deed of the plaintiff, executed in his favour by Bind Kala Devi wife of late Raji Lal Kapar. The plaintiff filed a petition before the police and in a proceeding under section 144 of the Code of Criminal Procedure some order in favour of the defendant first party was passed by the Sub Divisional Officer on the basis of his sale deed and in the night of 26/26-05.2006 the defendant first party dispossessed the plaintiff from the purchased land by making construction of a Phoos house on the southern east of the suit land. Thereafter, the plaintiff-respondent got filed the Title Suit No. 128 of 2006 and filed a petition therein for restraining the defendant first party from making any construction over the suit land as the same would change its physical nature. The petition was rejected 4 Patna High Court CWJC No.12655 of 2010 (10) dt.12-03-2013 5 by the trial court but the appellate court has allowed the appeal and directed both the parties to maintain status quo and not to raise any construction during the pendency of the suit. On consideration of the rival contentions, it appears that the plaintiff’s sale deed has been executed two weeks after one having been executed in favour of the defendant no. 1. Though both the sale deeds have been executed by different persons and both the parties claim that their vendors were the valid title holders, the lower appellate court has observed that in the concerned record of right(khatian), though the names of the ancestors of both the vendors stand recorded but so far the possession of the land is concerned, different plots have been shown in the names of different family members. The disputed plot no. 3539 has been shown in the name of Bhullar Kapar who is the father of the vendor of the plaintiff-respondent no. 1. Thus, the lower appellate court has come to the conclusion that such entry in the khatian over different lands of different raiyats prima facie shows the possession of particular khatiani raiyats of those lands, in particular, the possession of the plaintiff-appellant’s vendor of the land in dispute. Both the parties claim to have filled up earth on the suit land and the defendant-respondents have erected a hut over it. However, it has been stated in the judgment that if the 5 Patna High Court CWJC No.12655 of 2010 (10) dt.12-03-2013 6 defendant is permitted to raise further construction it may cause complication in deciding the suit. The lower appellate court has come to the conclusion that if construction is not made by the defendant there would be no inconvenience caused to anyone rather if the construction is made then the difficulty may arise in future. Therefore, he has restrained both the parties from raising any construction over the suit land. The Apex Court in Gangubai Bablya Chaudhary and others v. Sitaram Bhalchandra Sukhtankar and others (AIR 1983 Supreme Court, 742) has held that if the respondents of that case are allowed to put up construction on the whole of the land including the land in dispute, the situation may become irreversible and, thus, preclude fair and just decision of the matter. If, on the contrary, injunction is granted then the respondents are not likely to be inconvenienced because they are already in possession of the land. In this case also, in my view, no inconvenience would be caused to the defendant-petitioner if status quo is maintained by the parties, however, if further pucca construction is allowed to be made, that would definitely change the nature of the suit land and the situation would become irreversible by the time the suit is decided and would preclude the fair and just decision of the matter as has been held by the Apex Court in Gangubai Bablya 6 Patna High Court CWJC No.12655 of 2010 (10) dt.12-03-2013 7 Chaudhary and others (supra). Therefore, in my opinion, learned counsel for the petitioner has not been able to persuade this Court to make any interference in the judgment passed by the lower appellate court. In my considered opinion, the object and purpose of Order 39 Rules 1 and 2 as well as Order XL of the Code is to pass an order to protect the suit property till the lis is finally decided by the court concerned. Accordingly, this writ application stands dismissed. However, in view of the fact that the title suit concerned is of the year 2006 itself, let the court concerned take up the hearing of the title suit on day-to-day basis and take every steps for expeditious disposal of the same preferably within a period of nine months so that the matter of controversy be finally decided. (Dr. Ravi Ranjan, J) SC/- 7