Amar Kumar Mukherjee and Others vs Mr. B. Coventry and Others

By consent of the parties the order in this application will be treated as deciding the Miscellaneous Appeal No. 108 of 1924. The application itself is for an injunction upon the respondents third party restraining them from proceeding with certain batwara proceedings. The facts are these:--The appellants who are the plaintiffs in the suit now pending in the Court of the Subordinate Judge of Monghyr are ten-annas proprietors of Touzi No. 1002 which is under Collectorate partition. The defendants third party are the six-annas proprietors of Touzi No. 1002. The defendant second party is the sixteen annas proprietor of Touzi No. 1001 and we are informed that the lands of Touzi No. 1001 are mixed up with the lands of Touzi No. 1002. The defendants first party are the thikadars of Touzi No. 1002 and the question between the plaintiffs-appellants and the defendants first party in the suit is in substance whether the disputed lands in the suit are the bakasht lands of the proprietors of Touzi No. 1002 or the tenancy lands of defendants first party. The defendants first party are not parties to the batwara, although they made an application for being added as parties thereto. The plaintiffs applied for an injunction in the Court below restraining the defendants third party from proceeding with the batwara proceedings. A petition was filed by most of the defendants who had been cited as defendants third party in this action submitting to the injunction prayed for; it appears that defendants Nos. 15, 22, 24 and 67, amongst some there did not join in that application. Mr. B.N. Mitter appears for the defendants first party who are the thikadars of Touzi No. 1002 and for defendants Nos. 15, 22, 24 and 67, who have been cited as defendants third party. As against the order of the learned Subordinate Judge refusing to grant an injunction the plaintiffs have presented an appeal to this Court which is Miscellaneous Appeal Nos. 108 of 1924. The present application has been made in Miscellaneous Appeal No. 108 of 1924 and the application in substance invites this Court to pass an order upon the defendants third party restraining them from proceeding with the batwara proceedings.

Mr. Lachmi Narain Singh appearing on behalf of the defendant second party says that he is only interested in the suit being disposed of as soon as possible as his lands are mixed up with Touzi No. 1002, and he contends that the batwara proceedings should be carried on with all convenient speed.

Mr. Baikuntha Nath Mitter appears on behalf of the defendants first party and defendants Nos. 15, 22, 24 and 67, who are in the category of defendants third party. So far as he represents the defendants first party, obviously he has nothing to do with the application, because his clients are not parties to the batwara proceedings. So far as he represents defendants Nos. 15, 22, 24 and 67 it is to be remembered that it is to the interest of the defendants third party as a whole that the question whether the disputed lands are the bakasht of the maliks or the tenancy of the defendants first party should be disposed of before the batwara proceedings are proceeded with. Mr. Baikuntha Nath Mitter on behalf of defendants Nos. 15, 22, 24 and 67, is prepared to admit the claim of the defendants first party, but we are not concerned with that in this appeal. The important point to be remembered is that most of the defendants constituting the defendants third party did file an application to the Court below, submitting to the injunction prayed for.

It is pointed out by Mr. S.N. Bose on behalf of the plaintiffs that his clients will suffer an irreparable injury if the batwara proceedings are proceeded with. It is doubtful whether the plaintiffs will have any remedy at all if they succeed in the suit which they have filed in the Court of the Subordinate Judge of Monghyr.

Mr. Baikuntha Nath Mitter points out that we have no jurisdiction over the Batwara Court: that is true enough; but we have complete jurisdiction over the parties to the suit, and this Court will always assert its right to act in personam It is contended by Mr. Baikuntha Nath Mitter that his clients will be placed in great difficulty if the Batwara Court should decide to proceed with the batwara proceedings. But we have no right to assume that the Batwara Court will, to quote the words of Sale, J., in Mungle Chand v. Gopal Ram [1907] 34 Cal. 101, take any step unfair to those defendants or compel them to act in any way inconsistent with their duty of obedience to this Court. On the whole we are satisfied that the learned Subordinate Judge should have granted the injunction prayed for. That being our opinion we allow Miscellaneous Appeal No. 108 of 1924 and set aside the order passed in the Court below, and we restrain the defendants third party from proceedings with the batwara proceedings until the determination of the suit pending in the Court of the Subordinate Judge of Monghyr.

It is desirable that the suit pending in the Court of the Subordinate Judge of Monghyr should be disposed of with all convenient speed, and we direct the learned Subordinate Judge to proceed with the suit so that decision in the suit may be arrived at before the end of this year. The costs of this appeal will be cost in the suit itself and will be dealt with by the learned Subordinate Judge.