Shivakant Prasad, J@mdashThis revisional application is directed against the order being No. 13 dated 23rd December, 2013 passed by the Learned Additional District Judge, 1st Court, Siliguri dismissing the Misc. Appeal No. 6(7) 2013 on contest and affirming the order dated 31st May, 2013 passed by the learned Civil Judge (Senior Division) at Siliguri in Title (Declaration) Suit No. 40 of 2012.
2. The petitioner as the plaintiff instituted a suit for partition, separate possession and perpetual injunction before the learned Civil Judge (Senior Division) at Siliguri, which was numbered as Title (Partition) Suit No. 55 of 2002.
3. Sri Kanhaiyalal Parakh, the father of the plaintiff, Sri Bhanwarlal Parakh, the uncle of the plaintiff, Sri Prakash Chand Parakh, the cousin of the plaintiff, Sri Moolchand Parakh, the cousin of the plaintiff, Sri Pannalal Parakh, the uncle of the plaintiff, Sri Paras Parakh, the cousin of the plaintiff have been impleaded as the defendants in the said suit.
4. The plaintiff''s case in the said suit in brief is as follows:
(i) One Mangal Chand Parakh, the great grandfather of Subhash Candra Parakh, the plaintiff and Sri Prakash Chand Parakh, the defendant No. 3, Sri Moolchand Parakh, the defendant No. 4, Sri Paras Parakh, the defendant No. 6 and the grandfather of Sri Kanhaiyalal Parakh, the defendant No. 1, Sri Bhanwarilal Parakh, the defendant No. 2, Sri Pannalal Parakh, the defendant No. 5 were the absolute owner of the suit property.
(ii) The plaintiff and the defendants are governed by Mitakshra School of Hindu Law.
(iii) Sri Mandal Chand Parakh transferred the suit property to his son namely Jai Chand Lal Parakh by a Registered Deed of Gift.
(iv) Jai Chand Lal Parakh died leaving behind the plaintiff as well as the defendants as his male descendents.
(v) The plaintiff as well as the defendants being the coparceners are the joint owners of the suit property.
5. In the said plaint, the plaintiff prayed for a decree for perpetual injunction restraining the defendant Nos. 1 to 6 from changing the nature and character of the suit land and also from transferring the suit property or any portion thereof to anybody whomsoever in any manner whatsoever.
6. In connection with the aforesaid suit, the plaintiff filed an application under Order 39, Rule 1 and 2 of the Civil Procedure Code for a temporary and ad-interim injunction restraining the defendants from transferring the suit property or any part thereof to anybody and also restraining the defendants from changing the nature and character of the scheduled property.
7. By an order dated 27th August, 2002, the learned Civil Judge (Senior Division) at Siliguri directed both the parties to maintain status quo in respect of transferring the suit property or any part thereof in any manner to anybody and from changing the nature and character of the suit property as on the date till 15.11.2002.
8. It is depicted from Order No. 14 dated 20th March, 2004 that the learned Civil Judge extended the ad interim order of injunction till disposal of the injunction petition, but, it is revealed from the Order No. 18 dated 7th August, 2004 that the learned Judge rejected the petition for extension of ad interim order of injunction.
9. On being aggrieved by and dissatisfied with the said Order dated 7th August, 2004 the plaintiff/revisionist filed a revisional application before the learned Additional District Judge, 1st Court at Siliguri which is numbered as Civil Revision Case No. 28/S/2004.
10. The learned Appellate Court in the Court below by an Order No. 4 dated 1st September, 2004 admitted the aforesaid Civil Revisional Application and stayed the operation of the impugned order dated 7th August, 2004 of Title (Partition) Suit No. 55 of 2002 of the learned Civil Judge (Senior Division) at Siliguri which case is still pending.
11. Consequent upon such stay of the operation of the order No. 18 dated 7th August, 2004 passed by the learned Civil Judge (Senior Division) at Siliguri rejecting the petition for extension of ad interim order of injunction in Title (Partition) suit No. 55 of 2002 by an order No. 4 dated 1st September, 2004 in the civil revision case No. 28/S/2004 till date, ad interim order of injunction, passed by the learned Civil Judge (Senior Division) at Siliguri directing both the parties to maintain status quo in respect of transferring the suit property or any part thereof in any manner to anybody and from changing the nature and character of the said property, which has been extended till disposal of the injunction petition by an order No. 14 dated 20th March, 2004 revives and remains in force till date.
12. During subsistence of the specific order of injunction, as indicated hereinabove, Sri Kanhaiyalal Parakh, father of the petitioner, Sri Bhanwarilal Parakh and Sri Pannalal Parakh, the uncles of the petitioner/the plaintiff who are the parties/defendants in Title (Partition) Suit No. 55 of 2002, in collusion with Smt. Kiran Devi Bothra, Smt. Mohini Devi Dhariwal and Smt. Shanti Devi Surana, the aunts (Pishi) of the petitioner/the plaintiff sold out the suit property in the following manner:
(i) Sri Kanhaiyalal Parakh in execution and presentation of a registered deed of conveyance being No. 1-860 for the year 2011 at the office of the Additional Registrar of Assurance -III, Kolkata sold out his proportionate share i.e. his undivided one sixth share i.e. 2 Cottahs 2 Chittacks 30 sq. ft. in the aforesaid land measuring 13 Cottahs or about 0.21 acres, comprised in Dag No. 7113 and 7114 D.I. Fund Plot No. 30 and Portion of Plot No. 31, appertaining to and recorded in Khatian No. 51 of Mouza - Siliguri, in favour of one Ghanashyam Das Agarwal, and its registration was completed on 17th May, 2011.
(ii) (1) Sri Bhanwarlal Parakh, (2) Sri Panna Lal Parakh, (3) Smt. Kiran Devi Bothra, (4) Smt. Mohani Devi Dhariwal and (5) Smt. Shanti Devi Surana jointly in execution and presentation of registered deed of conveyance being No. 1-861 for the year 2011 at the office of the Additional Registrar of Assurance-III. Kolkata, sold out their proportionate share i.e. 5/6th share i.e. 10 Cottahs 13 Chittacks 15 sq. ft. more or less out of the aforesaid land measuring 13 Cottahs or about 0.21 acres, comprised in Dag Nos. 7113 and 7114, D.I. Fund Plot No. 30 and portion of Plot No. 31, appertaining to and recorded in Khatian No. 52 of Mouza - Siliguri in favour of one Ghanshyamdas Agarwal and its registration was completed on 17th May, 2011.
(iii) Ghanshyamdas Agarwal subsequently sold and transferred the entire suit property i.e. 13 Cottahs recorded in Khatian No. 52 in D.I. Fund Plot No. 30 and part of plot No. 31, Dag Nos. 7113 and 7114, Mouza-Siliguri in favour of Sananda Construction Private Limited in execution of 3 registered deeds of conveyance bearing Nos. 1 -2407, 1-2411 and 1-2412, all for the year 2011 at the office of the Additional District Sub-Registrar, Siliguri.
13. The petitioner being the plaintiff, as advised, has taken necessary steps in Title (Partition) Suit No. 55 of 2002. In furtherance the petitioner being the plaintiff filed a suit for declaration, perpetual injunction and consequential reliefs before the learned Civil Judge (Senior Division), which is numbered as Title (Declaration) Suit No. 40 of 2012.
14. Sananda Construction Private Limited, Sri Ghanshyamdas Agarwal, the father of the petitioner/the plaintiff, the uncle of the petitioner/plaintiff and the aunts of the petitioner/the plaintiff have been impleaded as the defendants in the Title (Declaration) Suit No. 40 of 2012.
15. In connection with the aforesaid Title (Declaration) Suit No. 40 of 2012, the petitioner/the plaintiff filed an application under Order 39, Rule 1 and 2 of the Civil Procedure Code for temporary injunction restraining the defendant No. 1 i.e. Sananda Construction Private Limited from creating any 3rd party interest over the said property by way of transfer of the suit property to any person/persons whomsoever.
16. The learned Civil Judge (Senior Division) at Siliguri by an order dated 27th March, 2012 granted an ad interim order of injunction in Title (Declaration) Suit No. 40 of 2012.
17. The defendant No. 1 filed an application under Order 39, Rule 4 of the Civil Procedure Code before the learned Court for vacating the ad interim order of injunction, granted on 27th March, 2012.
18. The learned Court by an Order No. 21 dated 31st May, 2013 rejected the application under Order 39 Rule 1 and 2 of the Civil Procedure Code, filed by the petitioner/the plaintiff and vacated the ad interim order of injunction, so granted by an order dated 27th March, 2012, by allowing the application under Order 39 Rule 4 of the Civil Procedure Code in Title (Declaration) Suit No. 40 of 2012 against which the petitioner/plaintiff preferred the Misc. Appeal No. 6(7) of 2013 before the learned Additional District Judge (1st Court) at Siliguri.
19. The petitioner/the plaintiff filed an application under Order 39 Rule 1 and 2 of the Civil Procedure Code in the said Misc. Appeal No. 6(7) of 2013 and by an order No. 13 dated 23rd December, 2013 the learned Appellate Court dismissed the Misc. Appeal No. 6(7) 2013 on contest affirming the order dated 31st May, 2013 passed by the learned Civil Judge (Senior Division) at Siliguri in Title (Declaration) Suit No. 40 of 2012.
20. This is the Order impugned which is under challenge in this Revisional Application on the grounds inter-alia that the learned Court erred both in law and fact in refusing to grant ad interim order of injunction, as prayed for in the independent Title (Declaration) Suit No. 40 of 2012 on the ground that the question of creation of 3rd party interest in the suit property due to prolongation of litigation is to be agitated in the proper Court having jurisdiction, meaning thereby, in Title (Partition) Suit No. 55 of 2002 inasmuch as the learned Court failed to appreciate that the opposite party No. 1/the defendant No. 1 and the opposite party No. 2/the defendant No. 2 who may create any 3rd party interest in the suit property are not the parties/defendants or may not be impleaded as parties/defendants in the Title (Partition) Suit No. 55 of 2002.
21. It is contended that inasmuch as the strong prima facie case has been made out by the petitioner/the plaintiff in the plaint of Title (Declaration) Suit No. 40 of 2012 that other coparceners and the defendants in Title (Partition) Suit No. 55 of 2002 sold out the entire suit property to the 3rd party in execution of the registered deeds of conveyances in spite of knowing fully well about the subsistence of an appropriate order in civil revisional case No. 28/S/2014 or alternatively without taking leave from the Hon''ble Court and thereby the petitioner/the plaintiff prayed for cancellation of those deeds of conveyance in the present Title (Declaration) Suit No. 40 of 2012, the learned Appellate Court below ought to have granted an order of injunction restraining the opposite party No. 1/the defendant No. 1 from creating any 3rd party interest in the suit property.
22. In the context above, the question which falls for consideration is as to whether the learned Appellate Court below was justified in passing order impugned in Misc. Appeal No. 6(7) of 2013.
23. By impugned order the learned Additional District Judge, 1st Court, Siliguri dismissed the Misc. Appeal on contest without costs by affirming the Order dated 31st May, 2013 passed by the learned Civil Judge (Senior Division) at Siliguri with the observation that there was obviously some sorts of vilification on the part of the father of his son resulting in the taking steps like sale of property. Obviously if the appellant prays before the learned Trial Court dealing with the partition suit that he is governed by Mitakshra School of Hindu Law but he cannot get any advantage.
24. It is true that a partition suit being Title Suit No. 55/2002 was filed on 27.8.2002 and an order of ad interim injunction was passed. The said order of injunction was vacated and names of the defendant Nos. 3, 4 and 6 were expunged and not having complied with the Court order for services of notice/summons upon them. On 01.9.2004 Additional District Judge in the revisional application in C.R. No. 28/S/2004 while admitting the revision was pleased to stay the order dated 07.8.2004.
25. In this context, the learned Counsel for the petitioner submits that during subsistence of the interim order of injunction in Title Suit No. 55/02 his father, uncles and aunts and cousin have transferred the suit property by deeds of sale in favour of Ghanashyam Das Agarwal defying the Courts order. Another Title Suit for declaration and injunction being Title Suit No. 40/2012 was filed by the plaintiff before the learned Civil Judge (Senior Division), Siliguri and order of injunction was refused which was challenged in Misc. Appeal No. 6(7)/2013 and the said appeal was dismissed by the impugned order. On meaningful reading of the plaint in Title Suit No. 55/2002, it will appear that Mangal Chand Parakh was the original owner of the suit property who by a deed of gift dated 16.6.1961 transferred his property in favour of his only son Jai Chand Lal Parakh. After the demise of Jai Chand Lal Parakh his property devolved upon the defendant Nos. 1, 2 and 5. So, they inherited 1/3rd share in the suit property. The plaintiff happens to be the son of defendant No. 1, defendant No. 3 and 4 are the sons of defendant No. 2 whereas defendant No. 6 is the son of defendant No. 5. Thus, the plaintiff claimed 1/6th share in the suit property as a coparcener.
26. The learned Counsel for the opposite party submits that there are two modes of devolution under the Mitakshra School of Hindu Law namely, survivorship and succession. The rule of survivorship applied to joint family property, and the rule of succession applied to the self-acquired property of a coparcener and to the property held in absolute severalty by the last owner. So the petitioner could not claim his share in the joint family property by a coparcenership. The fact remains that the father of the plaintiff has undoubtedly transferred his share to the respondent No. 2 and the respondent No. 2 in turn has transferred the same to Sananda Construction Pvt. Ltd.
27. Learned Counsel has relied on a case of
"Held: While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto viz. existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the property exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively."
28. In Title Suit No. 40/2012 the petitioner claimed that the plaintiff being one of the coparcener co-sharers in respect of the suit property has been using, enjoying and possessing the suit property in respect of the possession of no part and parcel of the suit property has ever been delivered either to the defendant No. 2 or defendant 1. Accordingly, the petitioner prayed for a decree of perpetual injunction restraining the defendant No. 1 and their associate, men and agents from entering into the suit property and also from creating any sort of obstruction, interference and annoyance to the quite and peaceful use and enjoyment of the suit property by the plaintiff and has challenged the purported Deeds of Conveyance being Nos. 1-860, 1-861 both the year 2011, purported Deeds of Conveyance being Nos. 1-2407, 1-2411 and 1-2412 all for the year 2011, purported Deeds of Conveyance being Nos. 1-860, 1-861 both the year 2011, purported Deeds of Conveyance being Nos. 1-2407, 1-2411 and 1-2412 all for the year 2011, purported Deeds of Conveyance being Nos. 1-860, 1-861, 1-2407, 1-2411 and 1-2412 all for the year 2011.
29. It appears from the conduct of the parties mainly the defendants that there has been creation of interest in the suit property by way of transfer of the suit property by the plaintiff''s father, uncle and all inmates of his family in favour of the third party. It is not understood as to why this petitioner kept on waiting for a considerable period of time without taking proper steps in partition suit and he was enjoying an ad interim order of injunction which was extended time to time and ultimately it got vacated for non-compliance of the Court''s order. The petitioner at the best can take a stand relating to doctrine of Lis Pendens.
30. It is pointed out by the learned Counsel for the opposite party that petitioner did not take any steps against his father and uncles allegedly who transferred the entire property during pendency of partition suit as per provisions of Order 39 Rule 2A of CPC and adverted my attention to the conduct of the petitioner relying on the observation in the above cited decision.
31. It is contended on behalf of the opposite parties that the defendant No. 1 is the absolute owner in physical possession of the suit property by virtue of purchase through three separate deed of convenience as mentioned in the foregoing paragraph.
32. In the above conspectus and having respectfully considered the principle decided in the cited decision (Supra), this Court does not find any ground to interfere with the findings in the order impugned.
33. Ergo, the C.O. No. 1235 of 2014 is devoid of merit and hereby dismissed on contest, however, without any order as to costs.
34. The Office to supply Photostat certified copy of this order to applicant, if applied for, on urgent basis.
