Chhotelal Sao and Others vs Bhim Rabidas and Another

M.Y. Eqbal, J.—This application under Article 227 of the Constitution of India by the defendants-petitioners is directed against the order dated 10.5.2005 passed by the District Judge, Giridih in Misc. Appeal No. 25 of 2004, whereby he has dismissed the appeal filed by the petitioners against the order dated 3.12.2004 passed by the Munsif, Giridih in title suit No. 46 of 2002 refusing to grant injunction.

The facts of the case lie in a narrow compass:

The plaintiffs-respondents filed title suit No. 46 of 2002 for declaration of their right, title, interest and possession over the suit lands and for confirmation of joint possession and, in the alternative, for recovery of possession and further, for a declaration that the deed of exchange dated 7.7.1944 is a forged and fabricated document and void and the same is not binding upon the plaintiffs. Besides, pleadings with regard to their right, title, interest and possession, the plaintiffs have also stated that initially in a proceeding u/s 145. Cr PC between the ancestors of both the parties, possession of the plaintiff so far the suit land, was declared, but the criminal revision filed by the defendants, was allowed and the case was remanded back for deciding afresh and finally possession of the defendants- petitioners over the suit land was declared.

The defendants-petitioners contested the suit claiming their title over the suit land and, further pleaded that if there is any defect in title, the same has been perfected by remaining in possession more than statutory period to the knowledge of all concerned including the plaintiffs. During the pendency of the suit, the. defendants-petitioners filed application under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying therein for grant of injunction restraining the plaintiffs from going over the suit land. It was alleged that the plaintiff in utter violation of the order passed u/s 145, Cr PC, they have unlawfully started digging the suit land for the purpose of cultivation. A rejoinder was filed by the plaintiffs opposing the said application. The Court of Munsif, after hearing the parties, rejected the petition filed by the defendants for the grant of injunction. The defendants-petitioners preferred an appeal being Appeal No. 25 of 2004 before the District Judge, Gtridih, who, by the impugned order, dismissed the appeal.

I have heard the learned Counsels appearing for the parties and perused the impugned orders passed by the trial Court and the appellate Court.

The trial Court after discussing the facts, came to the conclusion that the defendants-petitioners have no prima facie case and the balance of convenience lies in favour of the plaintiffs-respondents. As regard the order passed u/s 145, Cr PC declaring possession of the defendants-petitioners, the trial Court held that the defendants have not stated as to when the plaintiffs started digging the suit land. The Court further held that as regard the order u/s 145, Cr PC in favour of the defendants is concerned, it was a declaration with regard to the factum of possession on the date of order. Hence, the defendants shall not suffer irreparable loss.

In appeal, the appellate Court while affirming the order held that since plaintiffs possession over the suit land was initially declared u/s 145. Cr PC, but on remand, defendants'' possession was declared and, therefore, the defendants have no prima facie case or balance of convenience. Consequently, the appeal was dismissed.

Admittedly, defendants'' possession was declared in a proceeding u/s 145, Cr PC which resulted in filing of the suit, by the plaintiff-respondents for declaration of title, confirmation of possession and in alternative recovery of possession. Plaintiffs also challenged the legality and validity of the order passed by the Magistrate declaring possession of the defendants u/s 145. Cr PC. There is no dispute with regard to legal proposition that there is no bar in exercising discretion to restrain, dispossession merely because proceeding u/s 145, Cr PC for maintaining peace has been initiated. But final order passed u/s 145, Cr PC declaring possession has got some legal sanctity. Normally, by an order of injunction exercising power under Order XXXIX, Rule 1. party to a suit in whose favour possession has been declared u/s 145, Cr PC cannot be restrained from exercising right of possession, unless the Court passing an order of injunction must record reasons of his satisfaction about the prima facie case and also on the point that despite order u/s 145, Cr PC a party seeking injunction is continuing possession of the property. In the instant case, both the Courts have not recorded reasons and thereby failed to exercise jurisdiction.

The impugned order, therefore, cannot be sustained in law. In my considered opinion it would be just and proper to direct the parties to maintain status quo with regard to possession of the suit land till disposal of the suit.

For the reasons aforesaid, the impugned orders are set aside and the writ petition is disposed of with the aforesaid direction. Petition disposed of