Miscellaneous Appeal No. 236 of 2023 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil) Miscellaneous Appeal No. 236 of 2023 1. Robin Roy, S/o Late Dilip Kumar Roy, R/o 30 A Sankari Tola, P.O. and P.S. Shankari Tola, District, Kolkata, 700014 2. Mitra Labanya Kar, W/o Tapan Kumar Kar, Resident of 1G2/D/G20, Lake Garden, P.O. and P.S. Kolkata, Dist-Kolkata 700045 3. Bhaswati Konar, W/o Sri Dev Prassona Konar and D/O Kamla Prasad Roy, Resident of Radhanagar, South Road, P.O. and P.S.-Burdwan, Dist- Burdwan, West Bengal,West Bengal-713101 4. Urmila Roy @ Urmila Gupta Roy, W/o Tilak Pd Roy, R/o 10415A Block No. G, New Alipur, P.O. and P.S.- New Alipur, Dist-24 Paraganas, Kolkata, West Bengal-700024 5. Arati Roy Choudhury, D/o late Kamla Prasad Roy, Resident of Roy Bunglow, Castair Town, PO-B Deoghar, P.S. Deoghar, District-Deoghar … Appellants/Respondents Versus 1. Kiran Singh, W/o Shashi Kumar Singh, R/o Mohalla-Hanuman Tikri, (Kiran Palace), Deoghar Town, P.O.-B, Deoghar, P.S. Subdivision and District-Deoghar 2. Shashi Kumar Singh, R/o Late Shiv Kumar Singh, Mohalla-Hanuman Tikri, (Kiran Palace), Deoghar Town, P.O.-B. Deoghar, P.S. Subdivision and District-Deoghar ……Respondent/Appellant 3. Pinakee Singh Roy @ Pinaki Singh, S/o Late Preeti Singho Roy, R/o 10415A Block No. G, New Alipur, P.O. and P.S.-New Alipur, P.O. and P.S.-New Alipur, Dist-24 Parganas, Kolkata, West Bengal-700024 …..Performa Respondent/Respondent For the Appellants For the Respondents ….. : Mr. Sumeet Gadodia, Advocate Mr. Parth Jalan, Advocate Mr. Prakhas Harit, Advocate Mr. Aditya Tiwari, Advocate : Mr. Lalit Yadav, Advocate ---------- HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA PRESENT ----- JUDGMENT C.A.V. On 04.01.2024 Pronounced On: 22.03.2024 1. Present Miscellaneous Appeal is preferred against the order dated 3rd May, 2023 passed by learned Additional Session Judge-II, Deoghar 2 (Civil) Miscellaneous Appeal No. 236 of 2023 whereby and whereunder the Civil Miscellaneous Application No. 14 of 2023 filed in Civil Appeal No. 37 of 2019 under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure by the
Legal Reasoning
respondents/appellants/defendants seeking temporary injunction in respect of suit scheduled property has been granted. 2. Factual matrix giving rise to this appeal is that the suit property is known as “Roy Bungalow” situated in District Deoghar under Mohalla Castair Town, Mauza Shayamganj, Plot No. 776, Wad No. 18 measuring an area of 40 kathas, belong to late Kamala Prasad Roy. 3. It is alleged that the said Kamala Prasad Roy died on 26th May, 1976 and after his death the said property devolved upon his son Dilip Kumar Roy and three daughters namely, Preeti Sinha Roy, Arati Roy Chowdhury and Baswati Konar. It is alleged that Kamala Prasad Roy prior to his death has executed his will and testament on 21st January, 1970 in favour of his sole son Dilip Kumar Roy, hence, Dilip Kumar Roy after death of his father filed a probate case bearing PLA No. 141 of 1993 which was probated by order of Hon’ble High Court of Calcutta dated 7th March, 1993 and Dilip Kumar Roy was declared as sole executor and administrator of the suit property. It is further alleged that against the order of the Hon’ble Calcutta High Court granting probate of the will allegedly executed by Kamala Prasad Roy revocation case no.141 of 1993 was filed by Preeti Sinha Roy and the probate granted in favour of Dilip Kumar Roy was revoked vide order dated 10th August, 1999. In the meantime, respondent no. 3, Pinakee Singh Roy @ Pinaki Singh introduced himself to Dilip Kumar Roy as Civil Court employee cum 3 (Civil) Miscellaneous Appeal No. 236 of 2023 business man and expressed his desire to purchase a part of the suit property then respondent no. 1, wife of respondent no.2 entered into an agreement with Dilip Kumar Roy on 8th August, 1998 for purchase of two portions of land. One portion consisting of land equivalent to 1,01,240 sq. ft. and the another portion consisting of single storied Block No.4 standing over 1800 sq. ft. for a total consideration amount of Rs. 39,00,000/- (Rs. Thirty-Nine Lakhs), thereafter respondent nos. 1 and 2 claims to have perused all the record to the land including the PLA 141 of 1993 and Title Suit No. 1352 of 1999 filed by three sisters for partition of ancestral property including the suit property and regarding an interim injunction order of status quo was passed in the above cases. It is alleged that citing the pendency of the aforesaid litigation , Respondent Nos. 1 & 3 convinced Dilip Kumar Roy to execute a Power of Attorney in favour of Chiranjeev Kumar Deb (arrayed in Civil (Title) Appeal No. 37 of 2019 since deceased). A registered Power of Attorney dated 22nd June, 1998 was executed by Dilip Kumar Roy wherein Chiranjeev Kumar Deb was appointed as his attorney who was brother of respondent no. 1. It is alleged that all these things have been done under deep rooted conspiracy wherein the respondent nos. 1 & 2 in connivance with Chiranjeeb Kumar Deb hoped to upsurp the entire suit property by obtaining judicial seal by creating false and fabricated document. It is further alleged that using the said Power of Attorney respondent nos. 1 & 2 along with Chiranjeeb Kumar Deb acting as Power of Attorney holder to Dilip Kumar Roy executed two sale deeds, dated 15th July, 1998, thereafter, in pursuance of the of the said conspiracy with respondent nos. 1,2 and Chiranjeeb 4 (Civil) Miscellaneous Appeal No. 236 of 2023 Kumar Deb filed a title suit no. 77 of 1998 praying for specific performance of sale deed dated 15th July, 1998 wherein it was stated by Power of Attorney holder that the entire consideration amount has been paid and the possession of the suit property has been handed over to the Respondent Nos. 1 & 2. 4. The learned trial court considering the joint compromise petition dated 21st December, 1998 decreed the suit and directed the registration of sale deed vide order dated 21st December, 1998 (annexure 1 of this appeal). The respondent nos. 1 & 2 filed an Execution Case No. 03 of 1999 impleading Dilip Kumar Roy through its power of attorney holder i.e. Chiranjeeb Deb. As soon as appellant no.5 came to know about the same, she filed an objection petition dated 3rd May, 1999 wherein she informed the learned Court about the entire conspiracy hatched by respondent no. 5. The learned court vide order dated 7th August, 1999 pleased to hold that the order dated 21st December, 1998 was unexecutable, thereafter, Dilip Kumar Roy filed title suit no. 72 of 2004 for setting aside the judgment dated 21st December, 1998, decree signed on 4th January, 1999 passed in Title Suit No. 77 of 1998 seeking relief for cancellation of the sale deeds dated 15th July, 1998. The learned Civil Judge (Sr. Division)- I, Deoghar was pleased to hold vide his Judgment and decree dated 15th July, 1998 (annexure 2 to the memo of appeal) that the deeds executed by Chiranjeev Kumar Deb are void documents and annulled the sale deed no. 2169 and 2170, dated 15.07.1998. 5. The aforesaid Judgment and decree passed by learned Civil Judge Senior Division I was challenged in Title Appeal No. 37 of 2019 before the 5 (Civil) Miscellaneous Appeal No. 236 of 2023 Principal District Judge, Deoghar which was dismissed for default vide order dated 28th November, 2022 but again restored to its original no. vide order dated 23rd January, 2023. The fraudulent activities of the respondents is very much revealed through order sheet dated 17th July, 2020 in Civil (Appeal) No. 37 of 2019 “wherein the compromise petition filed by the respondent nos. 1 & 2 before the learned Additional District Judge-VIII contained forged signature of Mitra Labanya Kar (appellant no.2). 6. Appellant no.2 via email has stated that her signature on the compromise petition is forged and she has not executed any vakalatnama in favour of Shanti Kumari, Advocate. In respect of above matter of a clue an enquires under Section 340 of the Code of Criminal Procedure is also pending before the concerned appellate court. 7. In the above scenario of fact, during pendency of the Title Appeal No. 37 of 2019 respondent nos. 1 & 2 filed an application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure 1908 before the learned Additional District Judge II, Deoghar who has been pleased to allow the application vide order dated 3rd May 2023 which has been assailed in this appeal. 8. Learned counsel for the appellants has submitted that legal heirs of Kamala Prasad Roy, namely, Dilip Kumar Roy and his three daughters, namely, Preeti Sinha Roy,Arati Roy Chowdhury and Baswati Konar have partitioned the suit property through registered deed of partition after death of late Kamalata Prasad Roy. It is further submitted that the appellants have sold their part of the share to bonafide purchaser during 6 (Civil) Miscellaneous Appeal No. 236 of 2023 the pendency of the appeal. It is further submitted that while considering the application under Order XXXIX Rule 1& 2 of the Code of Civil Procedure, the learned Court below has failed to consider that no primafacie case of the respondents has been made out. The claim of the respondents/appellant is based on forged documents via power of attorney holder of Dilip Kumar Roy. At the appellate stage also the respondents/appellants have committed forgery for which a proceeding under Section 340 of the Code of Criminal Procedure is also initiated and pending for enquiry. The learned court below has also failed to appreciate that Balance of Convenience lies in favour of appellants/respondents. The learned appellate court has also made observation that there is long pending litigation in respect of suit scheduled property and its difficult to ascertain the bonafide owner and that during pendency of proceeding before Hon’ble Calcutta High Court, Dilip Kumar Roy sold property through power of attorney then what empowered the legal representative of Kamala Prasad Roy to sold the suit property. The power of attorney executed by Dilip Kumar Roy was misused by the attorney holder which was adjudicated in Title Suit No. 72 of 2004 wherein the sale deed executed by power of attorney holder Chiranjeev Kumar Deo was held to be void and the same was annulled. Thereafter, legal heir of Dilip Kumar Roy and Sister of Dilip Kumar Roy entered into a registered partition deed on that basis they have transferred their land. The respondents/appellants cannot take advantage of his own fault and he has not approached the court with clean hands but ignoring the maxim of equity that “ he who claims equity must do equity” and come with clean 7 (Civil) Miscellaneous Appeal No. 236 of 2023 hands and no one can take advantage of his own guilt or illegal, immortal conduct. Therefore, grant of status quo by the learned court below is not sustainable under law and fit to be set aside. 9. Per contra, learned counsel for the respondents refuted the aforesaid
Legal Reasoning
argument advanced by learned counsel for the appellants and submitted that first appeal is in continuation of original suit and the learned appellate court is also empowered to safeguard interest of appellants in all respect and manner to prevent from changing the nature of the suit property by way of illegal construction by invoking the provision of injunction. The learned first appellate court has rightly found the primafacie case, balance of connivance and irreparable loss tilted in favour of respondents/appellants/defendants and has passed the impugned order to prevent the suit property from wastage, damage or alienation during the hearing of the appeal and the impugned order was made effective only till the next date of hearing but the appellants have challenged the impugned order only with view to cause delay in the disposal of the said appeal. Therefore, there is no illegality or infirmity in the impugned order calling for any interference by way of this appeal, which is fit to be dismissed. 10. Perused the record along with the impugned order in the light of contention raised on behalf of both parties. It appears from factual background of this case, lis involved between the parties and particularly in view of the fact that during pendency of the appeal before the learned first appellate court some constructions were being raised over the disputed property. The learned appellate court also applied sound 8 (Civil) Miscellaneous Appeal No. 236 of 2023 discretion and in order to preserve the property till hearing of the appeal has passed injunction order only till the next date of hearing, thereafter, present appeal has been filed instead of concluding the trial before the appellate court. 11. Having regard to aforesaid aspects of the case, I don’t find any illegality or infirmity in the impugned order calling for any interference by way of this appeal which stands dismissed. However, both parties are directed to appear before the learned appellate court and conclude their arguments expeditiously, preferably within three months from the date of this order in the interest of speedy disposal of the appeal. 12. Let the copy of this order be sent to Court below through Fax/email for information and needful. Jharkhand High Court, at Ranchi Date: 22/03/2024 Rajnish/- N.A.F.R. (Pradeep Kumar Srivastava, J.)