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Judgment
Heard Mr. Samar Das, learned counsel appearing for the petitioner.
By means of this petition filed under Article 226 of the Constitution of India, the petitioner has urged this court for directing the respondents No. 1, 2 and 3 to not register any instrument of transfer including sale pertaining to the land which is the subject matter of the First Appeal, being RFA 28 of 2017, pending between the respondents No. 4, 5 and the petitioner.
Mr. Das, learned counsel appearing for the petitioner has submitted that the respondent No.4 instituted a title suit, being TS 48 of 2016 against the petitioner seeking the relief that land in dispute as described in the schedule of the plaint belongs to the plaintiff (the respondent No.4). There was prayer for recovery of possession by evicting the defendants including the present petitioner. There was prayer for mesne profits at the rate of Rs.1,00,000 per annum till recovery of possession.
Mr. Das, learned counsel has apprised that the said suit has been dismissed and a first appeal has been preferred against the judgment of dismissal by the plaintiff (the respondent No.4) who has claimed the ownership of the land.
Now, the respondent No.4, having taken the advantage of vacation in the court has entered in the agreement for sale on 17.10.2020. The petitioner apprehends that the agreement would be acted upon and the said land would be transferred in favour of the stranger on creating the third party right and hence, this petition has been filed.
Mr. D. Sharma, learned Addl. GA having appeared for the state-respondents has submitted that this petition is bound to fail inasmuch the dispute is under seison of this court in a separate jurisdiction created by Section 96 of the CPC. As the appeal is pending, an appropriate application could have been filed in the said appeal for giving the required protection under law, if entitled to the petitioner. But without taking resort to such action, the petitioner approached this court by filing this petition under Article 226 of the Constitution of India. This court is completely in agreement with Mr. Sharma, learned Addl. GA that the petitioner's action does not lie under Article 226 of the Constitution of India.
Mr. Das, learned counsel has finally submitted that at least the respondents No. 1, 2 and 3 shall be restrained by an appropriate order from registering any instrument of transfer, including sale as may be presented by the respondent No.4. This court is again constrained to observe that giving such direction would amount to exercising the jurisdiction which is not available to this court in the given circumstances. The petitioner has already apprised the respondent No. 1, 2 and 3 regarding such prospective transaction which, according to the petitioner, cannot be carried out as per law.
The respondents No. 1, 2 and 3 have sufficient jurisdiction to act upon such application, if it is found that a case is pending regarding the title of the land or the respondent No.4 does not have any valid title for sale of the land.
Having observed thus, the petition stands dismissed without prejudice to the action that the petitioner may take in law.
No order as to costs.