Keya Deb Barman And Others vs Amiya Kumar Sammadder

Both sides are represented in court today.

The present revisional application has been preferred by the defendants in a suit for declaration of title and injunction, against an order whereby the appellate court reversed the refusal of ad interim order of injunction by the trial court, but passed an order of status quo till the final hearing of the suit.

Learned counsel appearing for the petitioners submits that the appellate court acted without jurisdiction in granting status quo till disposal of the suit, since the subject matter of the appeal itself was confined to an ad interim order of injunction and the injunction application was still pending in the trial court.

The second limb of argument of the petitioners is that the petitioners produced several documents as to the Anandapuri Sri Sri Ramakrishna Sarada Sangha, of which the petitioners are members/office bearers, to be in possession of the suit property. It is submitted that those documents were overlooked by the appellate court in granting the order of status quo.

In this context, learned counsel for the petitioner, by placing reliance on several annexures to the present revisional application, submits that the memorandum of the aforesaid Sangha, which was registered under the West Bengal Societies Registration Act in the year 2008, shows the suit property as the registered office of the Sangha. Moreover, documents were produced in the appellate court to show that the present opposite party himself was a Secretary of the society at one point of time.

This apart, several subscription receipts were produced, which were issued by the society to its members, showing the suit property as the registered office of the society.

This apart, it is submitted that the opposite party wrote a letter on behalf of the said society to the Registrar of Societies intimating about the functioning of the society and 'seva pujas' being held by such society.

It is further submitted on behalf of the petitioners that the opposite party and his wife executed a deed of settlement, in effect a Will, as per which the suit property was to devolve upon the said society. However, after the death of the wife of the opposite party, the latter revoked such Will unlawfully.

It is submitted that the said Will was actually executed in favour of Ramakrishna Math and Mission and the present society is an affiliated body of the said legatee. Such facts, it is submitted, were suppressed before the appellate court by the present opposite party in obtaining the status quo order.

Learned counsel for the opposite party, on the other hand, submits that the opposite party produced several documents showing the ownership, as well as the possession of the opposite party in respect of the suit premises, including property tax receipts issued by the Barrackpore Municipality, 'khajna dakhilas', assessment registers in respect of the suit property issued by the concerned authorities, as well as electricity bills showing electric consumption in the name of the opposite party in respect of the suit property.

This apart, the petitioners admitted the initial joint ownership of the opposite party and his wife, but relied on subsequent performance of 'seva pujas' and the formation of the society to claim possession in respect of the suit property.

By placing reliance on Section 2(h) of the West Bengal Societies Registration Act, 1961, it is submitted on behalf of the opposite party that "registered office" under the said Act means the registered office mentioned in the memorandum.

It is argued that Section 5 of the said Act of 1961 also stipulates that the address of the registered office of the association must be given in the memorandum. It is argued that a conjoint reading of the said two provisions of law raises a presumption only to the effect that a particular address is to be given as a registered office of the society-in-question. Such an act as envisaged in the said Act, however, does not raise any presumption of possession of the society in respect of such registered office.

It is further submitted on behalf of the opposite party that, taking advantage of the advanced age of the opposite party and the initial formation of the society and performance of 'seva pujas' at the suit premises on certain occasions, the petitioners are trying to grab the property and oust the opposite party, who is a nonagenarian, from the suit property, which belongs to the opposite party himself.

In such view of the matter, it is submitted that the appellate court was justified in passing the order of status quo.

However, it is fairly conceded on behalf of the opposite party that the status quo might have been passed till disposal of the injunction application instead of till the hearing of the suit.

Upon consideration of the materials on record, it appears that both sides produced certain documents in support of their respective cases. It transpires from the materials on record that the ownership of the opposite party and his wife in respect of the suit premises is not controverted. The petitioners rely on a purported joint Will executed by the opposite party and his wife and submit that the society-in-question is an affiliated body of the legatee of such Will. Such contention, however, is not substantiated by documents, at least at this stage of the proceeding. Hence, the petitioners prima facie do not have a locus standi to rely on such Will, of which they are not beneficiaries.

In any event, the opposite party is admittedly a co-sharer of the suit property from the inception and has right, title and interest in respect of the suit property.

Although the contention as regards the presumption of possession being raised by the provisions of the West Bengal Societies Registration Act, 1961, as advanced by the opposite party, might be a bit doubtful in view of the provisions of Sections 13, 14 and 15 of the said Act of 1961, since the act provides that the register of members of the society-in-question and proper books of account will be maintained at the registered office and the society has to display its name prominently outside such registered office or place of business.

Yet, since the petitioners have failed, at this stage, to specify exactly which portion of the premises comprised of the registered office of the society-in-question and to establish that the memorandum of association was not a mere paper document as far as possession in respect of the registered office at the suit premises is concerned.

Learned counsel for the opposite party places reliance on a judgment reported at (2012) 5 Supreme Court Cases 370 (Maria Margarida Sequeira Fernandes and Others Vs. Erasmo jack De Sequeira (Dead) Through Lrs.) to espouse the proposition that specific particulars and details have to be furnished in support of a claim of possession in a proceeding before court.

In the present case, it is seen that such specific particulars were not furnished by the petitioners in their application under Order XXXIX Rule 4 of the Code of Civil Procedure. Although the ingredients of possession as stipulated in the said decision are not exhaustive, the same give an indication as to the level of pleading and proof required for the purpose of establishing possession in respect of the premises concerned, which requirement was prima facie not met by the petitioners in the present case.

In any event, on a preponderance of probabilities, the appellate court below was free to accept either of the propositions, as advanced by the appellant/opposite party and/or the respondents/petitioners, as the last court of facts. The appellate court, on a judicial exercise of discretion, accepted the proposition advanced by the opposite party as regards ownership and possession of the opposite party in respect of the suit premises and granted the order of status quo. Such a valid exercise of judicial discretion cannot be disturbed by this Court, particularly under Article 227 of the Constitution of India, merely because a different view was possible on the materials on record.

However, it is seen that the prayer for injunction made by the opposite party in the court below was restricted to restraining the present petitioners, their men, agents and acolytes from making any attempt to enter into the room of worship and 'seva puja' in any way on the first floor of the suit building of the petitioner and creating any disturbances to egress and ingress to the said room of worship. As such, the appellate court acted beyond its jurisdiction in granting status quo in respect of the entire suit property, which comprised of a two-storied building.

Moreover, as correctly submitted by both sides, the appellate court ought not to have granted status quo till final hearing of the suit but to have restricted its order to the final disposal of the injunction application.

In such view of the matter, C. O. No. 4187 of 2018 is disposed of by modifying the impugned order of the appellate court dated December 7, 2018, thereby restricting the injunction granted by the appellate court to the worship room situated on the first floor of the suit building, till disposal of the injunction application pending in the trial court. It is made clear that the rest of the impugned order is not interfered with.

Needless to say, the merits of the matter have not been gone into by this Court and the trial court will be free, while adjudicating the injunction application as well as the suit itself, to arrive at its own findings, being uninfluenced by the observations made herein or by the appellate court in the impugned order.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.