Amitava Roy, J.@mdashWhereas the appeal registers a challenge to the order dated 9.4.2007 passed by the learned Civil Judge (Senior Division), Jorhat in Misc (J) Case No. 102/2007 arising out of Title Suit No. 1/2007 granting ad interim injunction in favour of the respondents/plaintiffs restraining the petitioner, his men, agents etc. from dispossessing them (respondents-plaintiffs) from the suit property pending disposal of the suit, the revision petition is directed against an order of the same date passed in Misc (J) Case No. 4/2007 registered on an application filed under Order 21, Rule 29 of the CPC (hereinafter referred to as the ''Code'') in Title Execution Case No. 1/2007 by the respondent-plaintiff, thereby staying the proceeding till disposal of the aforementioned suit. By the said order, the application u/s 47 of the Code submitted for stay of the execution proceeding by the Opposite party/judgment debtor was also allowed.
2. Misc Case No. 1916/2007 is registered on an application under Order 41, Rule 5 read with Section 151 of the Code filed by the appellant/petitioner seeking suspension of the order dated 9.4.2007 passed in Misc (J) Case No. 1/2007. The parties being the same, the subject matter common and the issue seeking determination by this Court being co-related, the appeal and the revision petition were taken up analogously and a common order would essentially dispose of the same.
3. The facts comprising the background of the present litigations have to be stated. The petitioner claims to be engaged in the business of tea plantation. The Jogibheta Tea Estate situated at Mouza-Pollogapara, P.O. Chengajan in the district of Jorhat (hereinafter referred to as the ''tea estate'') belongs to the Dakhinpat Satra, Majuli and is a Devottar property administered by its Satradhikar who represents the interest of the Satra and its properties for all intents and purposes. The tea estate was taken on lease for a period of 30 years with effect from 1.1.1965 by the appellant/petitioner along with three others on the strength of a registered deed of lease. The term of the above lease expired on 31.12.1995. According to the petitioner, thereafter the then Satradhikar Sri Sri Ramananda Deva Goswami agreed to lease out afresh the tea estate to him on annual rent for a period of 15 years with effect from 1.1.1996. Execution of the registered lease deed in favour of the petitioner in due time was also assured. Pending execution thereof, the petitioner claims that he was put in possession of the tea estate and was allowed to manage and administer its garden as a lessee of the Satra upon payment of the lease rent. The petitioner has insisted that he duly took over the possession of the tea estate on 1.1.1996 on the condition of paying lease rent which was initially fixed at Rs. 1,50,000/- only per annum and has since then been administering the same as a lessee under the aforenamed Satra. Inspite of his repeated requests to the Satradhikar the lease deed, however, was not executed, though the latter accepted the lease rent from him by issuing receipts acknowledging him as the lessee in respect of the tea estate. On the demise of the Satradhikar Sri Sri Ramananda Deva Goswami the execution of the lease deed got further delayed and the same remains pending as on date. The appellant/petitioner has alleged that towards the end of the year 2003 the Tea Industry in general, witnessed a slump plunging it into a deep financial crisis affecting all tea gardens in the State resultantly prompting the State authorities to initiate various measures to retrieve the industry. Being similarly caught in the vertex the petitioner was compelled to defer the payment of labour wages and other statutory dues in the tea estate. A labour unrest surfaced, a common phenomenon which then plagued all small tea growers including the tea gardens selling green tea leaves. The petitioner has alleged that by exploiting the situation to their advantage the successor to the Satradhikar Sri Sri Nanigopal Deva Goswami hatched a conspiracy to dispossess him from the management of the tea estate dehors the process of law. It was thereafter that while the petitioner was runnning from pillar to post to tide over the sudden crisis crippling the garden, the said Satradhikar by his letter dated 20.2.2004 intimated the decision to take over the management of the tea estate from the appellant/petitioner. Though in his reply on 21.2.2004, the petitioner protested against the move contending that during the subsistence of the lease it was illegal and arbitrary, on that day itself (21.2.2004), he was forcibly dispossessed from the tea estate by the abovenamed Satradhikar. Being aggrieved he instituted Title Suit No. 43/2004 in the Court of the Civil Judge (Senior Division), Jorhat u/s 6 of the Specific Relief Act, 1963 praying for a decree for recovery of possession of the tea estate. The said Satradhikar contested the suit by filing his written statement and adduced evidence. The learned court below by judgment and order dated 4.12.2006 decreed the suit in favour of the appellant/petitioner.
4. The defendant/respondent preferred a Civil Revision petition before this Court being CRP No. 112/2006 which was allowed to be withdrawn on 3.1.2007 as prayed for by the revision petitioner in view of the decision of the Supreme Court in
5. Simultaneously, the Satradhikar also filed an application u/s 47 read with Section 151 of the Code in the execution case mentioning inter alia that the judgment and decree dated 4.12.2006 passed in Title Suit No. 43/2004 had been impeached in Title Suit No. 1/2007 and is pending adjudication. It was contended that the execution of the said decree was thus impermissible in law. The challenge to the orders dated 9.1.2007 and 11.1.2007 passed by the Executing Court in Title Execution Case No. 1/2007 laid before this Court by the Satradhikar in Civil Revision Petition No. 87/2007, however was negated on 21.3.2007. The Satradhikar/judgment debtor also filed an application under Order 21, Rule 29 of the Code registered as Misc (J) Case No. 4/2007 in Title Execution Case No. 1/2007 praying for stay of the execution of the decree dated 4.12.2006 pending adjudication in Title Suit No. 1/2007. The appellant/petitioner also contested the said application by filing his written objection.
6. The application for temporary injunction and stay of the execution of the appeal came up for consideration before the learned court below, which upon hearing the parties, by separate orders dated 9.4.2007 granted the prayers made.
7. The pleaded averment of the respondent/Opposite Party in the proceeding in hand is that on the expiry of the earlier lease on 31.12.1995, no fresh deed of the tea estate between the lessees and the respondent No. 1 was executed and the then Satradhikar had not leased out the tea estate to the appellant/petitioner on 1.1.1996. On the other hand, after culmination of the earlier lease the lessees were asked to hand over the possession of the tea estate to the respondent No. 1, deity Sri Jadav Rai Idol and the Respondent No. 2, Satradhikar Sri Sri Nani Gopal Deva Goswami. While stoutly denying the allegation of forceful and illegal dispossession of the appellant/petitioner from the said tea estate, the respondents have urged that the present deity, the actual owner of the tea estate not having been impleaded as one of the defendants in Title Suit No. 43/2004, the suit was not maintainable and therefore the judgment and decree was a nullity. The respondents have maintained that the application for stay (Misc Case No. 1916/2007) is not maintainable as the affidavit accompanying the same is not verified as required in law. While accusing the appellant/petitioner of being guilty of suppressing material facts, the respondents have asserted that the deity is the owner in possession of the tea estate which is administered by its spiritual head, the Satradhikar with the assistance of the respondent No. 4 Bup Bar Bayan. They admitted that the tea estate had been leased out to the appellant/petitioner and three others by the registered deed No. 2322 dated 26.3.1966 for the period 1.1.66 to 31.12.1995 at an annual rent of Rs. 55,000/- and that on the expiry of the term, the lessees delivered back the possession thereof to the Satradhikar whereafter the respondents Nos. 1 and 2 conducted the administration, maintenance and management thereof with effect from 1.1.1996. They denied of a fresh agreement between the lessees or the respondent No. 1 with the Satradhikar, but admitted that for the effective management of the tea estate, the appellant/petitioner was engaged for and on behalf of the deity on commission basis and accordingly he assisted and acted for an on behalf of the respondent No. 1 for the maintenance, management, accounts works etc. The respondents have alleged that the appellant/petitioner taking advantage of the situation caused huge financial anomalies and consequential losses to the tea estate besides representing himself to be the lessee thereof. The financial loss and other irregularities of the appellant/petitioner came to such a pass that the labour wages and rations could not be released in the year 2003 leading to labour unrest and agitation threatening the closure of the tea estate. As the appellant/petitioner abandoned the tea estate then in turmoil, in November, 2003 the Labour Union and the Assistant Labour Commissioner, Jorhat including the local administration urged the Satradhikar to take over the management thereof to protect, preserve and maintain the same and having no other alternative, the respondents/plaintiffs took over the reins of the tea estate after due information to the appellant/petitioner by letter dated 20.2.2004, to avert an imminent disaster.
The appellant/petitioner while withholding the above fact instituted Title Suit No. 43/2004 by stating inter alia that on the expiry of the earlier lease on 31.12.1995 the then Satradhikar Sri Sri Ramananda Deva Goswami agreed to lease out the tea estate to him for a period of 15 years on the condition of payment of annual rent and that pending execution of the lease deed he was put in possession thereof and permitted to administer the same. The respondents have contended that the case of the appellant/petitioner is based on fraud and in any view of the matter, the claimed lease being of an immovable property in absence of any registered deed evidencing the same, no such transaction is comprehensible in law and hence he has no semblance of right as a lessee in the tea estate.
8. Mr. Choudhury has emphatically urged that the decree in Title Suit No. 43/2004 having attained finality, the impugned order of injunction has the potential of protecting illegal possession of the respondents/opposite parties in derogation thereof which, on the face of the records, being illegal and indefensible in law is liable to be interfered with. The earlier suit being u/s 6 of the Specific Relief Act, 1963 considering the scope of enquiry contemplated therein, the Satradhikar representing the deity was impleaded as the defendant and the decree passed therein being final and binding on all the respondents, the impugned order of injunction tantamounts to an obstruction to the execution of a lawful decree, he argued.
9. Mr. Choudhury has further urged that the Apex Court in Sanjay Kumar Pandey and Ors. (supra) having propounded that remedy of a person unsuccessful in a suit u/s 6 of the Specific Relief Act, 1963 is to file a regular suit to establish his title to be entitled to recover the possession of the property in the event of the declaration to the said effect, the learned court below acted in excess of its jurisdiction in granting ad interim injunction in the teeth of the decree in Title Suit No. 43/2004. The learned Senior counsel contended that Order 21, Rule 29 of the Code not having comprehended stay of the execution of a decree on mere asking, the learned Court below in the facts and circumstances of the case acted patently in breach of the letter and spirit thereof rendering the order passed in Misc (J) Case No. 4 of 2007 ineffectual, null and void. The order in purported exercise of powers under Order 21, Rule 29 is without any independent evaluation of the attending fact situation. The orders assailed being obviously against the ratio decidendi in Sanjay Kumar Pandey (supra), the mandate of the decree in Title Suit No. 43/2004 and enjoinment of Order 39, Rule 1 and 2 as well as Order 21, Rule 29 of the Code, intervention of this Court in exercise of its appellate as well as supervisory jurisdiction under Article 227 of the Constitution of India is indispensably warranted to uphold the rule of law, he urged. Mr. Choudhury to buttress his arguments placed reliance on the following decisions:
i)
ii) AIR 1976 Gau 39, Quazi Toufiqur Rahman, Petitioner v. Mst. Nurbanu Bibi, Opposite Party;
10. Mr. Roy in reply has contended against the maintainability of the petition under Articles 226/227 of the Constitution of India contending that the order impugned thereunder having disposed of the application u/s 47 of the Code as well as one under Order 21, Rule 29 the challenge thereto u/s 115 CPC was the only the permissible legal redress. According to him, the affidavit in Misc Case No. 1916/2007 has not been verified in accordance with law and therefore the application for staying the impugned order of injuction is liable to be rejected on that count alone. The learned Counsel has argued that the respondent Nos. 1,3 and 4 not being parties in Title Suit No. 43/2004 they could neither be comprehended as unsuccessful parties as contemplated in Sanjay Kumar Pandey (supra) nor, could be bound by the decree passed therein and therefore it was open for them to resist the same (decree) either under Order 21, Rule 97 of the Code or by instituting a fresh suit. The decree in Title Suit No. 43/2004 being inapplicable to them, the order of injunction granted by the learned court below being satisfied on the existence of a prima facie case, in the subsequent suit is unassailable in law as well as on facts, he urged. Mr. Roy repudiated the decree passed in Title Suit No. 43/2004 as non est in law as neither the deity, owner of the tea estate nor the other lessees of the tea estate though necessary parties had been impleaded therein as defendants. The learned Counsel was emphatic in contending that the lease of the tea estate as claimed by the appellant-petitioner for a period of 15 years in absence of a registered deed witnessing the same being not cognizable in law, the learned court below on a correct assessment of the materials on record rightly passed the order of injunction. The learned Counsel urged that not only in absence of a lawful lease, the appellant-petitioner''s possession of the tea estate would be that of a trespasser, the learned trial Court having stayed the execution of the decree in Title Suit No. 43/2004 on an exhaustive consideration of all relevant factors safeguarding the interest of tea estate and the interest of the labour force, the same is in valid exercise of its jurisdiction. No case whatsoever having been made out justifying the exercise of this Court''s extra ordinary powers under Articles 226 and/or 227 of the Constitution of India, the appeal and the revision petition are liable to be rejected, he urged. The following decisions were relied upon.
i) AIR (1999) SCW 1878, Ram Tankijee Deities, Appellant v. State of Bihar.
ii) AIR 2003 SCW 5700, Shanti Kumar Panda, Appellant v. Shakuntala Devi, Respondent;
iii) (2000) 3 CSS 442, Midnapur Zamindary Co. Ltd. Appellant v. Kumar Naresh Narayan Ray and Ors. Respondents.
iv) (2004) 13 SCC 667 , Dinesh Prabhulal Barat and Anr., Appellants v. Sai Palace Hotels (P) Ltd. and Ors. Respondents.
v)
vi)
vii)
viii) (1987) 1 GLR 394, Sri Sri Radha Govinda Jew Bigraha, Appellant v. Kailash Dubey and Ors. Respondents.
ix) 1998 (2) GLT193: (1998) 2 GLR 221, Matadin Mow, Appellants v. Prahlad Kumar Mour, Respondents.
x)
11. Mr. Choudhury in reply has maintained that the fresh lease having been awarded only in favour of the appellant/petitioner, other lessees in Title Suit No. 43/2004 were not necessary parties. He insisted that having regard to the nature of the suit and the reliefs prayed for therein, neither the deity nor the tea estate was needed to be impleaded as defendant therein. According to him, the necessity of impleadment as a party in a judicial proceeding is contingent on the nature thereof and the relief prayed for. The respondent/opposite party neither having alleged fraud in the subsequent suit nor denounced the decree passed therein on any legally tenable ground, the impugned orders besides being ex facie illegal constitute an abuse of the process of the court.
12. Before entering into the thicket of the competing assertions, the fringe contentions bearing on the maintainability of the writ petition as well as the miscellaneous case deserve attention. A plain reading of the order dated 9.4.2007 passed in Misc. Case (J) No. 4/2007 arising out of Title Execution Case No. 1/2007 reveals that thereby the application u/s 47 as well as one under Order 21, Rule 29 of the Code had been disposed of. Unmistakably therefore, the same could have been impugned u/s 115 of the Code. In other words, alternative statutorily prescribed remedy was available to the appellant-petitioner to assail the said order. Incidentally the revision petition if filed u/s 115 of the Code would have been before this Court as well. By applying under Articles 226/227 of the Constitution of India the appellant/petitioner has invited a relatively more constricted scrutiny. The fact that an appeal has also been preferred against the order of ad interim injunction passed in Misc (J) Case No. 102/2007 arising out of Title Suit No. 1/2007 between the same parties and involving the common subject matter is also of considerable relevance. The pleadings of the parties and the rival contentions alluded hereinabove establish a unerring co-relation between the issues in the two proceedings.
The Apex Court in Surja Dev Rai (supra) while dwelling of the effect of amendment of Section 115 of the Code (after amendment by Act 46 of 1999) declared that the same cannot and did not in any manner affect the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India being a part of its basic structure. After dilating on the characteristic features of the jurisdiction under Articles 226 and 227 it concluded that the parameters to issue a writ of certiorari and to exercise the supervisory jurisdiction are almost similar with the constraint that in wielding the same the High Court cannot convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors by drawing inferences or correct errors of mere formal or technical character. It further declared that the power to issue a writ of certiorari or the exercise of supervisory jurisdiction is to be invoked sparingly and only in appropriate cases where the judicial conscience dictates to act lest a gross failure of justice or grave injustice should occasion. The Apex Court therefore in emphatic and categorical terms exalted the jurisdiction under Articles 226 and 227 of the Constitution of India beyond the fetters of any statutory provision prescribing an alternative remedy. The invocation of the jurisdiction however, is to be circumscriptive to essentially prevent a failure of justice, occasioned by any transgression of law or rule of procedure. Tested in the above touchstone, considering the affinity of the issues and the identicalness of the parties and the subject matter in the two proceedings, I do not feel persuaded to sustain the objection.
13. A close reading of the averments in the Misc Case No. 1916/2007 does not warrant a conclusion that the affidavit thereof has not been affirmed as required in law. The affidavit demonstrates that the deponent has cautiously segregated the statements to be sworn to be true to his knowledge and/or records as the case may be. The compartmentalization of the pleadings thereunder as made by the respondent/opposite party is too broad. Considering the nature of the facts involved and the background of the earlier litigation, the affidavit cannot be dismissed as vague or ineffectual. As it is, the principal objective of an affidavit is to hold the deponent to the facts affirmed or sworn thereby and the acceptability thereof would essentially be dependant on the facts sought to be established and/or proved. The affidavit to the Misc Case No. 1916/2007 cannot in face of the facts endorsed thereby be discarded being lacking in proper verification. The decision of this Court in Matadin More turns on its own facts and is thus of no avail to the respondents/Opposite parties.
14. A bare perusal of the plaint in Title Suit No. 43/2004 demonstrates that the relief prayed for therein was founded on the claim of a fresh lease of the tea estate accorded by the Satradhikar in favour of the appellant/petitioner and not on renewal of the earlier lease granted in his favour along with three others which had spent its force on 31.12.1995. The appellant-petitioner''s assertion therein was that pending execution of a registered deed of lease, he was delivered the possession of the tea estate on the condition of payment of annual rent of Rs. 1,50,000/-. It is thus evident that the pleaded case of the appellant-petitioner was of a fresh lease of the tea estate only in his favour and not one of renewal of the earlier lease. The allegation of his illegal dispossession from the tea estate was also exclusively against the then Satradhikar who was impleaded as the sole defendant in the suit. In view of the unambiguous and categorical plea as above and considering the nature of the suit and the reliefs prayed for therein, the appellant-petitioner''s co-lessees in the earlier transaction cannot be construed to be necessary parties in the suit. The contention to the contrary cannot be sustained.
15. The decision of the Patna High Court in Yellayi Sannaya (supra) that a Court in a suit u/s 9 of the Specific Relief Act, 1877 has no jurisdiction to pass a decree in favour of the plaintiff who claims an undivided share in a property from which he and his cosharers were ousted has no application to the facts of the instant case.
16. Admittedly the respondent Nos. 1, 3 and 4 did not figure as defendants in the earlier suit. The respondent No. 2 in the capacity of the Satradhikar was the sole defendant. The common case of the parties is that the tea estate is owned by the Dakhinpat Satra and the Satradhikar respondent No. 2 administered the affairs thereof and as claimed by the respondents with the assistance of the respondent No. 4. Considering the inter se orientation of the respondents, the Satradhikar by no means can be estranged either from the other respondents or from the tea estate involved, for all intents and purposes. He represented the interest of the deity, the tea estate as well as of the respondent No. 4 in the earlier suit. The pleadings of the parties as available from the records proclaim that their assertions are in essence identical in both the suits. Significantly enough, in the plaint of Title Suit No. 1/2007 no fraud vitiating the decree has been alleged except dismissing the judgment and order dated 4,12.2006 in Title Suit No. 43/2004 to be a nullity. No grievance as such has been projected against any conclusion recorded therein to be either perverse or illogical or absurd being against the weight of the pleadings and the evidence adduced. No complaint against non impleadment of the deity has been made either.
It is for the first time in his application u/s 47 of the Code that the respondent No. 2 contended suppression of material facts and non-maintainability of the suit in absence of the deity. Noticeably in the suit, the respondent Satradhikar while denying the allegation of appellant-petitioner''s dispossession from the suit land asserted that he had not been in possession of the tea estate after the expiry of the earlier lease, but in the interest of the management thereof, was allowed to conduct the affairs of the garden for and on behalf of the Satra and therefore his role was only of a care taker thereof. He alleged that during the year 2003 and prior thereto, the appellant plaintiff failed to furnish proper accounts and eventually for non- payment of wages and other dues to the labour staff and arrears in government revenue, there was a great upheaval where after the Satra being asked by the concerned labour union and the administration it took over the management of the tea estate. It was alleged that in the meantime the appellant petitioner had quietly vacated the tea estate without informing the Satradhikar in the middle of November, 2003.
17. The Apex Court in A. Jitendernath (supra) ruled that the award therein having been passed in absence of a necessary party, was in violation of the principles of natural justice and thus a nullity. It reiterated that an order passed by an authority without authority need not be set aside as being a nullity, it in the eye of the law never existed.
18. Indubitably the tea estate, subject matter of the protracted litigations between the parties is the property of Dakhinpat Satra of which Sri Sri Jadav Rai Idol is the deity. The earlier suit i.e. Title Suit 43/2004 having been instituted u/s 6 of the Specific Relief Act 1963, the essential pre-requisites for maintainability thereof were illegal and forceful dispossession of the plaintiff from the suit land and institution of the suit within a period of six months therefrom. No question of title was to be decided in the suit and once the possession of the plaintiff of the suit property before being ousted therefrom illegally and forcefully was established and the suit was in time, the plaintiff was entitled to a decree for restoration of his possession thereof. Considering the limited nature of enquiry to be conducted in suit and the appellant petitioner having unambiguously identified his dispossessor, in my opinion, the deity was not a necessary party in the said suit.
19. While elaborating on the scope of Section 6 of the Specific Relief Act, 1963 the Apex Court in
It is trite to say that Section 6 of the Specific Relief Act gives a summary remedy to the plaintiff to seek restoration of possession from the defendant within six months of illegal recovery of possession by the defendant, without referring to the title of the plaintiff and defendant. It is a possessory suit wherein status of the party is irrelevant. In such type of suits the plaintiff is not required to prove his title or a superior right to possession as compared to the defendant and has only to show that he was in possession of the suit immovable property and he was illegally dispossessed within a period of six months prior to the date of the suit. Once the plaintiff proves his case, he becomes entitled to succeed and can get status quo ante and restoration of possession of the suit premises though the assistance of the Court.
This view found reiteration in Sanjoy Kumar Pandey (supra) wherein the Apex Court in addition ruled that the remedy of a person unsuccessful in a suit u/s 6 of the Specific Relief Act is to file a regular suit establishing his title to the suit property and would be entitled to recover the possession of the property in the event of his being successful, notwithstanding the adverse decision u/s 6 of the aforementioned Act. It held that against a decision u/s 6 of the Act, the remedy of the unsuccessful party is to file a suit based on title and that the remedy of a revision u/s 115 of the Code is only by way of an exception as the High Court would not interfere with such a decree, except on the settled parameters for the exercise of its revisional jurisdiction. The plea against the maintainability of the earlier suit for non-impleadment of the deity therefore cannot be upheld.
20. The issues framed in the earlier suit and decisions thereon as would have a bearing on the present adjudication now deserve to be adverted to.
i) Issue No. 3 : Whether the suit is bad for non-joinder of necessary party ?
ii) Issue No. 4: Whether, the plaintiff has been possessing the suit property and he was illegally dispossessed by the Defendant within six months prior to filing of the suit?
iii) Issue No. 5 : Whether the plaintiff is entitled to a decree for recovery of possession of the suit property?
The learned Court below while deciding the Issue No. 4 exhaustively dealt with the oral and documentary evidence of the parties. It took into account the testimony of PW 1 appellant-petitioner in support of his pleaded case and the rent payment receipts Exts. 1 to 25 issued by the Satradhikar and his other agents for the tea estate. It also took on record the letter issued by the jurisdictional Assistant Labour Commissioner, Additional P.F. Commissioner and the workers of the tea garden as well as the resolution of the Satra proved and exhibited by the appellant petitioner. The learned Court below noticed the evidence of PW 2 to the effect that he had managed the garden as the manager under the appellant petitioner till 20.2.2004 and that on the next date the defendants had taken the possession of the same. It discarded the evidence of DW 1 as of no consequence, he having expressed ignorance about the receipts Exts. 1 to 25 and other relevant facts. The evidence of D W 3, Lakhindra Bhumiz an employee of the tea estate that the appellant petitioner had been running the same from 1.1.96 as lessee was taken note of.
On a consideration of the materials on record, the learned court below concluded that on 21.2.2004 the appellant petitioner was in possession of the tea estate. It further concluded that he was construed to be the lessee of the tea estate as discernible from the resolution of the Satra Ext. 28 as well as the letter written by the territorial P.F. Commissioner addressed to him, Exts. 32 and 33. The decision rendered by the learned trial court demonstrates that it was alive to the facts that in absence of a registered deed, no valid lease was in existence, but deduced from the evidence both oral and documentary that he had been in possession of the tea estate from 1.1.96 as a lessee till his dispossession on 21.2.2004. It rejected the contention of the defendant Satradhikar that the appellant petitioner had been possessing the tea estate under the Satra as its employee or a care taker. It concluded from the rent receipts that the possession of the appellant petitioner cannot be dubbed to be that of a trespasser. It also rejected the plea of the defendant Satradhikar that the appellant petitioner had quietly abandoned the tea estate in the middle of November, 2003 to be belied by documentary evidence Exts. 28,30 and 31 in conjunction with the evidence of PW 2 and DW 1. It concluded that the appellant petitioner was illegally dispossessed on 21.2.2004. Observing that the question of title to the property was irrelevant in the suit u/s 6 of the Specific Relief Act, 1963, the learned Court below also negated the objection against the non-maintainability of the suit on the ground of non-joinder of Jogibheta tea estate and Dakhinpat Satra as defendants. It recorded that the owner of the tea estate was not a necessary party in the suit. It therefore declared the appellant petitioner to be entitled to recover the possession of the suit property by evicting the defendants.
21. This verdict admittedly is in tact as on date. Though the respondent Satradhikar had approached this Court with CRP No. 512/2006 assailing the same u/s 115 of the Code, he withdrew the challenge with a liberty to approach the appropriate forum in terms of the Sanjay Kumar Pandey and Ors. (supra). This was a conscious choice made by the respondent Satradhikar, though the above decision of the Apex Court did not totally rule out a Revision petition u/s 115 of the Code under all circumstances.
22. There is no manner of doubt that the suit instituted by the respondents is maintainable in law. However, visibly the averments '' in the plaint are substantially the same with those in the written statement in the earlier suit and rejected/negated by the learned court below on a comprehensive consideration of the pleadings and the evidence adduced therein. The parties are one that the Satradhikar at all relevant time had been administering the affairs of the tea estate on behalf of the Satra. He therefore, represented the Satra in all his dealings with the earlier lessees as well as the appellant petitioner. As observed hereinabove, the plea of non-impleadment of the deity had not been insisted in the subsequent suit in the written statement. Keeping in view the pronounced resemblance of the pleaded assertions of the respondents herein and the respondent Satradhikar in both the suits, I do not feel persuaded to hold that the respondent Nos. 1, 3 and 4 though not impleaded in the earlier suit can permissibly extricate themselves from the judicial determination recorded in Title Suit No. 43/2004. This is more so, as the cause of action therefore was the complaint of illegal dispossession of the appellant petitioner from the tea estate by the respondent Satradhikar acting on behalf of the other respondents. The judgment and decree in Title Suit No. 43/2004 therefore cannot be disregarded while analyzing the prayer for temporary injunction made in the subsequent suit and suspension of the executing proceeding thereby deferring the deceased relief granted in favour of the appellant petitioner. Because of the community in interest and the oneness in the pleaded versions in both the proceedings, the judgment and decree in Title Suit No. 43/2004 cannot be regarded as non est vis-a-vis respondent Nos. 1, 3 and 4 as well.
23. The Allahabad High Court in Chunni and Anr. (supra) while observing that a decree in a suit u/s 6 of the Specific Relief Act, 1963 does not bar or preclude a suit for title praying for consequential relief other than recovery of possession held that in determining whether the plaintiff is entitled to an interim injunction the Court will have to apply its mind whether the plaintiff has a prima facie case and whether the balance of convenience is in his favour. It concluded that the fact a court had granted a decree directing the defendant to be put back in possession would be a relevant circumstance.
24. In Shanti Kumar Panda (supra) the Apex Court while discerning the purport of words ''Competent Court'' as used in Section 146(1) of the Cr.P.C. observed that the party unsuccessful before the Magistrate was at liberty to establish before the Competent Court i.e. in a court having jurisdiction to decide the question of title or right to the property, his entitlement to the possession, that he has not dispossessed the unsuccessful party or that it is he who was actually in possession of the land involved and that the finding to the contrary was erroneous or unsustainable in law.
This accords with the permissibility of a suit based on title by a person aggrieved by any decision in a suit u/s 6 of the Specific Relief Act, 1963. While there cannot be two opinions that an unregistered lease of an immovable property is not comprehended in law, the arrangement by which the appellant petitioner claims to have been occupying the tea estate and the evidence adduced by him in the earlier suit and evaluated by the learned Court below, established his possession thereof for the limited purpose of the relief claimed under the Specific Relief Act, 1963. As noticed hereinabove, the learned trial Court took note of the oral and documentary evidence including the rent paying receipts Exts. 1 to 25 and the fresh agreement with him to be the lessee of the tea estate and had determined his possession to be authorized. The respondents in both the suits have admitted the induction of the appellant petitioner into the affairs of the tea estate after 31.12.1995 though for performing limited activities such as management of the garden, maintenance of accounts, preparation of profit and loss estimate etc.
For the purpose of Section 6 of the Specific Relief Act, 1963 the validity or otherwise of the unregistered lease in the above factual premise was not considered to be material. In any view of the matter, the judicial determination in favour of the appellant petitioner''s authorized possession of the tea estate cannot be ignored till set aside on a fresh adjudication by a Court of competent jurisdiction. Considering the stage of the present suit, this Court for obvious reasons refrains from further elaborating on this issue. The plea of unregistered lease per se, in my opinion would not render the decision in Title Suit No. 43/2004 non est qua the respondents.
25. Though the respondents are vociferous in imputing anomalies and discrepancies in the accounts of the tea estate while the appellant petitioner was incharge thereof leading to non -payment of labour wages and unrest, the learned Court below did not entertain the said plea, considering the contemporaneous materials on record. Though reiterated in their plaint in Title Suit No. 1/2007 no evidence as well has yet been adduced in support thereof by the respondents. The apprehension that on the delivery of the tea estate to the petitioner there is a likelihood of mismanagement thereof by him leading to recurrence of the same state of affairs at this stage appears to be speculative. In the face of the decision in Title Suit No. 43/2004, this allegation ought not to be made a decisive consideration while entertaining the prayer for injunction or stay of the execution of the decree passed in the earlier suit.
26. The power of a Court under Order 21, Rule 29 of the Code to stay the execution of a decree as comprehended therein is not in doubt. Therein while a suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court, instituted by a person against whom the decree was passed, the Court may on such terms as to security or otherwise as it may think fit, stay the execution of the decree until the pending suit is decided. A mere reading of the said provision evinces that the power is discretionary and has to be essentially conditioned by the facts and circumstances of the case and an order suspending the execution of a decree ought not to be passed as a matter of course.
27. The Apex Court in Shaukat Hussain (supra) while dealing with the import of the above provision elucidated that a Court to exercise the power thereunder has to be one which had passed the decree in execution. This is in addition to the requirement that there should be simultaneously two proceedings in one court, one for execution at the instance of the decree holder against the judgment debtor and the other, the suit at the instance of the judgment debtor against the decree holder.
28. In Krishna Singh (supra) the Apex Court emphasized that the jurisdiction under Order 21, Rule 29 has to be exercised with every care and only in special cases.
29. The decision in Dinesh Prabhat Barat and Anr. (supra) and Asish Kumar Das and Anr. (supra) pressed into service on behalf of the respondents are lodged in their own facts and do not record any legal proposition pertinent for the present purpose.
30. This Court in Quazi Toufiqur Rahman (supra) held that the discretion conferred by Order 21, Rule 29 has to be exercised judicially and not mechanically as a matter of course. It propounded that while exercising the discretion the court should duly consider that a party who has obtained a lawful decree is not deprived of the fruits thereof. The following excerpt therefrom being instructive is extracted hereinbelow--
While exercising the discretion conferred under Rule 29 of Order 21 the Court should duly consider that a party who has obtained a lawful decree is not deprived of the fruits of that decree except for good and cogent reasons. So long as the decree is not set aside by a competent Court it stands good and effective and it should not be lightly dealt with so as to deprive the holder of the lawful decree of its fruits. If the judgment-debtor brings a suit for setting aside an earlier decree on ground of fraud and/or collusion or that the decree was not binding on him for some legal grounds, the allegations made in such a suit should be carefully examined by the Court before exercising the discretion conferred under Rule 29, If the subsequent suit is brought for setting aside the earlier decree on ground of fraud and/or collusion etc. Court should also see whether the pleading of the party concerned has complied with the requirements of Rule 4 of Order 6 of the Civil Procudure Code. A party should not be deprived of the fruits of the decree obtained by him from a competent court merely because a suit has subsequently been filed for setting aside that decree. A decree passed by a competent court should be allowed to be executed and unless a strong case is made out on cogent grounds no stay should be granted. Even if stay is granted, it must be on such terms as to security etc. so that the earlier decree is not made ineffective due to lapse of time.
31. The adumbrated judicial opinion thus recognizes the discretion of the Court under Order 21, Rule 29 of the Code to be exercised with diligence care and circumspection, so much so that the conferments of a decree are not denied to the holder thereof unless demanded by compelling and exceptional reasons. The impugned order of injunction does not disclose any discussion in support of the conclusion of prima facie case in favour of the respondent plaintiff. The learned court below seems to have been swayed by the submission bearing on the appellant petitioner''s omissions and commissions in running the tea estate and the induced mayhem necessitating restoration of the administration thereof to the respondents.
Significantly, before holding in favour of the prayer for injunction, the learned court below did not at all examine the impact of the judgment and decree passed in Title Suit No. 43/2004 on the issue. It also omitted to notice the ratio in Sanjoy Kumar Pandey (supra). It overlooked that the order of injunction if granted would have the potential of rendering the decree in the earlier suit otiose. The impugned order in the Misc Case No. 4(J)/2007 is evidently an upshot of the order of injunction granted in the suit. In terms of the decree in Title Suit No. 43/2004 the appellant petitioner is entitled in law to the possession of the tea estate. Non-delivery thereof by the respondents/Opposite parties is in contravention of the directions contained therein. Unless very formidable and weighty considerations exist, any order having an effect of postponing the mandate of the decree cannot receive judicial imprimatur. The impugned orders fail to appreciate the same. While it is perceivable that the annulment of the impugned orders would pave the way for execution of the decree and eventual assumption of the possession of the tea estate by the appellant petitioner, the same in the teeth of the judgment and order in Title Suit No. 43/2004 is an unavoidable consequence envisaged by law.
32. The impugned orders are thus in the opinion of this Court unsustainable in law and are hereby set aside.
33. The appeal and the revision petition are allowed. Misc Case No. 1916/2007 is accordingly disposed of. The above, notwithstanding, if resultantly the appellant petitioner obtains the possession of the tea estate, it would be open for the respondents plaintiffs on fresh facts and materials to approach the learned Court below for appropriate interim relief in the suit depending on the situational demands. No costs.
