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Kaliprasad Das and anr. Vs. Gadadhar Sahu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 191 of 1976
Judge
Reported inAIR1978Ori8; 44(1977)CLT113
ActsSpecific Relief Act, 1963 - Sections 41; ;Code of Civil Procedure (CPC) , 1908 - Order 39, Rule 1; Code of Criminal Procedure (CrPC) , 1898 - Sections 145
AppellantKaliprasad Das and anr.
RespondentGadadhar Sahu
Appellant AdvocateA.K. Padhi, Adv.
Respondent AdvocateY.S.N. Murty, Adv.
DispositionAppeal allowed
Cases ReferredBhinka v. Charan Singh
Excerpt:
.....(2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - banchha baral, (1967) 33 cut lt 974: (air 1968 ori 36). 6. as i have already indicated, the final order of the learned magistrate clearly found that the third defendant was in possession within sixty days before the date of the preliminary order and the plaintiff had dispossessed him during that period and accordingly the magistrate directed that defendant no. surendranath das, (1971) 37 cut lt 1052: (air 1972 ori 115) is a good authority for both these propositions. ). i do not find anything therein which clearly takes a different view......injunction.2. the respondent has instituted title suit no. 53 of 1976 in the court of the learned subordinate judge at aska for declaration of title, confirmation of possession or in the alternative recovery of possession and for a decree for permanent injunction against defendants 2 & 3. the disputed property is a two-storied house located in village mundamarai within the aska taluk. according to plaintiff, one rama chandra misra was its original owner. in 1955, defendant no. 1 and ignesu patra jointly purchased the property by a registered sale deed dated 2-12-1955. on 9-4-1962 ignesu sold his share in the property in favour of the first defendant and thus the first defendant became the sole owner. plaintiff purchased the property under a registered sale deed dated 18-5-1972.....
Judgment:

R.N. Misra, J.

1. This is an appeal by defendants 2 and 3 in a pending suit against an order of temporary injunction.

2. The respondent has instituted Title Suit No. 53 of 1976 in the court of the learned Subordinate Judge at Aska for declaration of title, confirmation of possession or in the alternative recovery of possession and for a decree for permanent injunction against defendants 2 & 3. The disputed property is a two-storied house located in village Mundamarai within the Aska Taluk. According to plaintiff, one Rama Chandra Misra was its original owner. In 1955, defendant No. 1 and Ignesu Patra jointly purchased the property by a registered sale deed dated 2-12-1955. On 9-4-1962 Ignesu sold his share in the property in favour of the first defendant and thus the first defendant became the sole owner. Plaintiff purchased the property under a registered sale deed dated 18-5-1972 for a consideration of Rs. 8,000/-. The second defendant had no right, title, interest or even possession over the property. The third defendant was a monthly tenant under the first defendant and on 31st of March, 1972, he surrendered possession to defendant No. 1. The first and the third defendants have disputes on account of a joint business which they were previously carrying in the disputed house and coming to know that the first defendant was about to dispose of the property, the third defendant prevailed upon the second defendant who happens to be a divided brother of the first defendant to execute a sale deed in his favour. The second defendant thus executed a sale deed in favour of the third defendant on 12-5-1972 notwithstanding the fact that the second defendant had no right,, title or interest in the property. Plaintiff has been put into possession by his vendor. The third defendant maliciously instituted a proceeding under Section 145 of the Cr.P.C. by his application dated 11-7-1972. The learned Magistrate passed the final order in the following terms:--

'I, therefore, declare possession of the disputed house in favour of the 1st party within two months immediately preceding the date of preliminary order. The 2nd party members are dispossessed and are directed to surrender possession of the disputed house to the 1st party who should be allowed to keep the same in his possession without any disturbance until of course evicted therefrom in due course of law.'

Plaintiff, therefore, filed the suit on 20th of Sept. 1976, for the reliefs already indicated and applied for temporary injunction pending suit.

3. Defendants 2 and 3 filed a joint written statement claiming anterior title in second defendant and present title in the third defendant on the basis of the sale deed. The third defendant filed an affidavit in opposition to the prayer for temporary injunction but therein admitted that plaintiff was still in possession of the property.

4. The learned Subordinate Judge on the basis of materials placed before him has come to hold that the plaintiff has a prima facie case and his present possession should be protected. Accordingly temporary injunction pending suit has been granted. Defendants 2 and 3 assail this order of injunction in the present appeal.

5. Mrs. Padhi for the appellants raises three contentions in support of the appeal, namely:--

(i) The intunction granted by the Subordinate Judge is really against the criminal court. The learned Magistrate who has disposed of the proceeding under Section 145 of Cr. P. C. and is to put the successful party in possession is not a court subordinate to the learned Subordinate Judge and, therefore, injunction cannot be granted under Section 41(b) of the Specific Relief Act;

(ii) Defendants cannot be injuncted from prosecuting the proceeding before the learned Magistrate for being put in possession and the grant of injunction in such a matter would also contravene Section 41(d) of the Specific Relief Act, in view of the Proviso in Order 39, Rule 1 of the Civil P. C. as amended in this Court, namely.

'Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 (now Section 41) of the Specific Relief Act (Act I of 1877).' The learned Subordinate Judge was not competent to grant the injunction; and

(iii) The life of the final order in the proceeding under Section 145 of the Cr. P. C. being conterminous with the passing of a decree, until the decree is obtained, the order of the learned Magistrate must operate, as has been held by this Court in the case of Nata Padhan v. Banchha Baral, (1967) 33 Cut LT 974: (AIR 1968 Ori 36).

6. As I have already indicated, the final order of the learned Magistrate clearly found that the third defendant was in possession within sixty days before the date of the preliminary order and the plaintiff had dispossessed him during that period and accordingly the Magistrate directed that defendant No. 3 should be out in possession and his possession should not be disturbed until he was evicted in due course of law. In view of such a finding, the learned Magistrate had to restore defendant No. 3 to possession as contemplated under Section 145(6) of the Cr. P. C. Soon after the termination of the revision proceeding arising out of the learned Magistrate's order, the suit has been instituted. Therefore, there has been no occasion yet for the defendant No. 3 to obtain possession from the Magistrate. It is true that in the application for injunction, there is no prayer to restrain the learned Magistrate from putting the third defendant into possession, but plaintiff's real prayer is to defer that action. The position, therefore, is clear that to grant injunction in the matter would amount to restraining defendants from prosecuting the proceeding in the criminal matter and moving the learned Magistrate for being put into possession in the proceeding under Section 145 of the Code of Criminal Procedure. It would also amount to restraining the defendants from prosecuting any proceeding in a court which is not subordinate to the learned Subordinate Judge, because admittedly, the learned Magistrate is not a court subordinate to the learned Subordinate Judge. The Bench decision of this Court in the case of Narayan Misra v. Surendranath Das, (1971) 37 Cut LT 1052: (AIR 1972 Ori 115) is a good authority for both these propositions.

7. There is no force in Mrs. Padhi's third contention, namely that the final order in a proceeding under Section 145 of the Cr. P. C. being conterminous with the decree of the competent court, no interlocutory order can affect the final order. In fact, analytically examined, the decision of this Court in (1967) 33 Cut LT 974 : (AIR 1968 Ori 36) nowhere supports that view. The decision of the Supreme Court in the case of Bhinka v. Charan Singh, AIR 1959 SC 960, which was the basis for the Orissa decision referred to above also did not indicate the law in the manner Mrs. Padhi contends. In para. 16 of the judgment, the Supreme Court indicated:--

'......Under Section 145(6) of the Code, a Magistrate is authorised to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the partiesv which will have to be agitated and disposed of in the manner provided by law. The life of the said order is conterminous with the passing of a decree ty a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. ......'

I am inclined to hold that in suitable cases, the Civil Court would have jurisdiction to make appropriate arrangements for preserving the property. In fact, the Bench decision in the Allahabad High Court in the case of Barkat-Un-Nissa v Abdul Aziz, (1900) ILR 22 All 214, which had been followed in a series of precedents is to that effect.

8. Mr. Murty for the plaintiff-respondent relied upon the comment given under Section 41(d) of the Specific Relief Act in the Reprint of Banerjee on Specific Relief (T.L.L.). I do not find anything therein which clearly takes a different view.

9. In view of the possession that grant of injunction in this case would run contrary to the Proviso to Order 39, Rule 1 as brought in by Orissa Amendment, I must hold that the learned Subordinate Judge had no jurisdiction to grant injunction and the grant of temporary injunction accordigly cannot be sustained.

10. The appeal is allowed and the order granting temporary injunction pending suit is vacated. The trial of the pending suit be expedited. No costs.


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