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Haradhan Changdar Vs. Jitendranath Hambir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 896 of 1979
Judge
Reported inAIR1980Cal206,85CWN21
ActsWest Bengal Land Reforms Act, 1956 - Sections 18, 21 and 21(3); ;Specific Relief Act, 1963 - Section 37; ;Code of Civil Procedure (CPC) , 1908 - Section 9 - Order 39, Rules 1 and 2
AppellantHaradhan Changdar
RespondentJitendranath Hambir
Appellant AdvocateR.P. Bagchi and ;Snehansu Deinda, Advs.
Respondent AdvocateBiswajit Ghosh and ;J. Bhattacharya, Advs.
DispositionRevision allowed
Excerpt:
- .....the court has or has not the jurisdiction to pass interlocutory orders on an application for temporary injunction.2. facts relevant for the present purpose are simple. the plaintiffs instituted the suit for declaration and for permanent injunction against the defendant no. 1 upon a claim that the suit lands were in the khas possession of the plaintiffs, that the defendant no. 2 was engaged as a care-taker to supervise the cultivation of the lands from the time of the predecessors-in-interest of the plaintiffs, that the defendant no. 1 who is a nephew of defendant no. 2 managed to have his name recorded as a bargadar in respect of the suit lands in the draft records prepared during the revisional settlement operation and that he on the basis of such entry in the draft record but.....
Judgment:

B.C. Chakrabarti, J.

1. This revisional application at the instance of the plaintiffs is directed against an order dated Feb. 28, 1979 passed in Misc. Appeal No. 52 of 1978, and raises a short though important point of law, viz., whether in a suit where a question arises as to whether a person is of is not a bargadar and the said question is referred to the appropriate Officer mentioned in Section 18(1) of the West Bengal Land Reforms Act for decision, the Court has or has not the jurisdiction to pass interlocutory orders on an application for temporary injunction.

2. Facts relevant for the present purpose are simple. The plaintiffs instituted the suit for declaration and for permanent injunction against the defendant No. 1 upon a claim that the suit lands were in the khas possession of the plaintiffs, that the defendant No. 2 was engaged as a care-taker to supervise the cultivation of the lands from the time of the predecessors-in-interest of the plaintiffs, that the defendant No. 1 who is a nephew of defendant No. 2 managed to have his name recorded as a bargadar in respect of the suit lands in the draft records prepared during the revisional settlement operation and that he on the basis of such entry in the draft record but without having any interest whatsoever in the suit lands, was trying to disturb the possession of the plaintiffs.

3. Defendant No. 1 however, claimed to be a bargadar under the plaintiffs and alleged further that defendant No. 2 was in collusion with the plaintiffs.

4. The plaintiffs made an application for temporary injunction restraining the defendant from interfering with the possession of the plaintiffs. The learned Subordinate Judge before whom the suit was filed, considered the prayer on its merits and found that the defendant was at best a caretaker and not a bargadar. The defendants took an objection that the suit was hit by Section 21 of the West Bengal Land Reforms Act, but the learned Subordinate Judge thought that there was no such dispute between the parties requiring an adjudication by an officer appointed under Section 16 (1) ofthe said Act. On such findings the learned Subordinate Judge allowed the prayer for temporary injunction restraining the defendant from disturbing the plaintiffs' possession till the disposal of the suit.

5. Being aggrieved by such decision the defendants preferred an appeal before the learned District Judge. The learned District Judge while disposing of the appeal incidentally referred to some documents upon which the trial Court had relied and found them to be inadmissible in evidence. But then he did not find that the plaintiffs were not entitled to an order for injunction on the case made out by them and on the materials placed before the Court. Instead he held that the dispute raised by the defendant was required to be referred under Section 21 (3) of the Act to the prescribed authority for determination of the question whether the defendant was a bargadar or not. Ho further observed that the plaintiffs application for temporary injunction should be disposed of in terms of the decision of the prescribed authority. In that view of the matter the appeal was allowed on contest with a direction upon the trial Court for making a reference to the prescribed authority.

6. The plaintiffs have moved this Court in the present revisional application against the said appellate order.

7. Section 21 (1) of the West Bengal Land Reforms Act provides that no order of other proceedings under that Chapter shall be questioned in any Civil Court and no Civil Court shall entertain any suit or proceeding in respect of any matter mentioed in Sections 17 and 18. Sub-section (2) speaks of transfer of all pending proceedings before any Bhag-chas Conciliation Board to the officer or authority appointed under the Act for decision and Sub-section (3) of the said Act provides as follows:--

'(3) If any question as to whether a person is or is not a bargadar arises in course of any proceedings before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in Sub-section (1) of Section 18 for decision.'

Section 18 provides that every dispute between a bargadars and the per-son whose land he cultivates in respect of the division or delivery of the produce, recovery of produce under Section 16-A or termination or cultivation by the bargadar shall be decided by such officer or authority as the State Government may appoint. Sub-section (2) of Section 18 further lays down that if in deciding any dispute referred to in Sub-section (1) or otherwise any question arises as to whether a person is a bargadar or not and to whom the share of the produce is deliverable, such question shall be determined by the officer or authority mentioned in Sub-section (1). Plainly, therefore, every dispute touching the question whether the relationship between the parties is that of owner and bargadar can be decided by the prescribed authority or officer upon a reference being made to it under Section 21 (3). Such being the position in law, Mr. Ghosh in opposing the revisional application contended that the learned Subordinate Judge had no option but to refer the dispute in the instant case to the appropriate authority and that he having failed to do so, the learned Lower Appellate Court had justly directed a reference in that behalf. On behalf of the petitioners on the other hand it was argued that even if the dispute in the instance case be referable to the officer or authority concerned, the Court still has jurisdiction to entertain an application for temporary injunction and pass appropriate orders thereon.

8. In our view the bar of jurisdiction imposed by Section 21 (3) of the West Bengal Land Reforms Act is not an absolute bar. It only bars the jurisdiction of the Court to decide the question whether a person is or is not a bargadar if such question is raised in the suit. In all other respects the Court retains jurisdiction over the suit. Section 21 and Section 18 read together do not indicate either expressly or by implication that the Court would have no jurisdiction to pass an order of temporary injunction if a case in that behalf is made out. In deciding an application for temporary injunction the Court does not adjudicate upon the issue. Before an injunction is granted the question in dispute need not be examined or its decision anticipated. Granting of an injunction does not mean a final adjudication of the dispute nor is the plaintiff required to establish his title before he can legitimately ask for an order of injunction in his favour. In order to succeed on an application for temporary injunction all that he need show is a prima facie case as to the existence of the right alleged and it is but fair that when such a prima facie case is made out the property should be preserved in status quo. In other words in disposing of an application for temporary injunction the Court is to see whether there is a prima facie case, the balance of convenience and inconvenience and the question of irreparable injury etc. In the suit now pending before the learned Subordinate Judge the plaintiffs have raised these questions in their application for temporary injunction. While agreeing with Mr. Ghosh that since the defendant raised a dispute as to his status as a bargadar the learned Subordinate Judge had to refer the same to the appropriate officer for decision on that issue only, we are unable to accept the contention that once such a reference is made the Court would have no jurisdiction to consider an application for temporary injunction for the simple reason that the decision on such an application does not amount to a decision of the disputed issue. There may be cases where it may be necessary in the interest of justice to protect the present possession of either party till the decision is made by the appropriate authority and the Land Reforms Act does not empower the officer to pass any order of temporary injunction. We are, therefore, of the view that the jurisdiction of the Civil Court is not ousted merely because a disputed question as to the status of the defendant who claims to be a bargadar is referred to the competent authority for decision. Even where such a reference is made the Court remains in seisin of the suit and has to dispose of the same after the decision by the authority is received. In the instant suit there is indeed a case for referring the dispute to the appropriate authority and the learned Subordinate Judge went wrong in refusing to do so, The learned District Judge in disposing of the appeal has set the wrong right by directing a reference in that regard but he again went wrong in holding that the application for temporary injunction should be disposed of only after the decision by the appropriate authority is made. If the application for temporary injunction is kept pending till such time the very purpose of the application would be frustrated and that is not what the law provides. A single Bench decision in the case of Kalidas Mukher-ji v. Jori Singh (1978) 1 Cal LJ 390), has held that the jurisdiction of the Civil Court to pass suitable orders on an application for temporary injunction is not ousted by the provisions of Section 21 of the Act, and we are in complete agreement with the view so taken.

9. That being our view of the matter the revisional application ought to succeed. The direction given by the learned lower Appellate Court for making a reference to the appropriate authority for decision of the disputed issue as to the status of the defendant as claimed is affirmed. But his finding that the application for temporary injunction should pend till such decision is made, is liable to be and is hereby set aside. The matter should now go back to the learned lower Appellate Court for consideration whether the application for temporary injunction applied for by the plaintiffs should or should not be granted. We have not heard the learned Advocate on the merits of the prayer for temporary injunction and we accordingly direct that the matter be remitted to the learned lower Appellate Court for re-hearing in accordance with law.

10. The rule is accordingly made absolute. The lower Appellate Court is directed to rehear and dispose of the Misc. Appeal No. 52 of 1978 in accordance with law. There will be no order for costs.

11. Let the records be sent down forthwith.

Anil K. Sen, J.

12. I agree.


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