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2003 Supreme(Cal) 427
High Court Of Calcutta
Arun Kumar Mitra
USHABALA ADHIKARI - Appellant
Versus
MANASHI GHOSH - Respondent
S. A. 197 Of 1976
Decided On : 08/25/2003
AMAL KANTI GHOSHAL, SUBHASISH CHAKRABORTY
A suit for injunction without prayer for recovery of possession and/or declaration of title is not maintainable under the Specific Relief Act, 1963, and the courts below erred in interpreting the law and passing the judgments and decrees.
Headnote:
ADVERSE POSSESSION - SPECIFIC RELIEF ACT, 1963 - SECTION 34, 38 and 42 - Interpretation - Plaintiff claiming ownership of the suit property through adverse possession - Whether the suit for injunction without prayer for recovery of possession and/or declaration of title is maintainable under the Specific Relief Act, 1963 - Whether the courts below erred in interpreting the law and passing the judgments and decrees.
Fact of the Case:
The plaintiff filed a suit for injunction claiming to be the owner of the suit property through adverse possession. The defendants contested the suit, claiming that they purchased the property from the original owner and that the plaintiff's predecessors-in-interest had acquired the same by accepting a tenancy on execution of an Amalnama. The trial court and the appellate court decreed the suit in favor of the plaintiff.
Finding of the Court:
The High Court held that the courts below erred in interpreting the law and passing the judgments and decrees. It held that the suit for injunction without prayer for recovery of possession and/or declaration of title is not maintainable under the Specific Relief Act, 1963, and that the courts below failed to consider the evidence on record and passed perverse judgments and decrees.
Issues: 1. Whether the suit for injunction without prayer for recovery of possession and/or declaration of title is maintainable under the Specific Relief Act, 1963? 2. Whether the courts below erred in interpreting the law and passing the judgments and decrees?
Ratio Decidendi: 1. Section 38(3) of the Specific Relief Act, 1963 cannot be made applicable in the facts and circumstances of the case. 2. The courts below did not consider the evidence on record and passed perverse judgments and decrees. 3. The appellate court below did not comply with the statutory mandate passed on it by section 96 of the CP Code by critically analyzing the judgment and decree of the trial court.
Final Decision: The High Court allowed the appeal and set aside the judgments and decrees passed by the courts below.
( 1 ) - This Second appeal has been preferred challenging the judgment and decree dated 4. 4. 1975 passed by the learned Additional District Judge, 4th Court at Alipore in Title Appeal No. 1050 of 1971 affirming the judgment and decree dated 14. 10. 1974 passed by the learned Munsif, 1st Court, Alipore in Title Suit No. 35 of 1975.
( 2 ) THIS appeal originates from suit for injunction. The case as has been made out by the plaintiff is that the plaintiff is the owner of. 03 acres of land and the structure thereon which is the suit property. According to the plaintiff, one Nachu Dhali was the owner and he wanted to settle the suit property in tenancy right to Baroda Adhikari who was a neighbour of the said Nachu Dhali. Adhikari took settlement of the same at a rental of Rs. 6. 00 per annum and on payment of a premium of Rs. 15. 00. The condition was that said Shri Adhikari would pay Rs. 5. 00 to the landlord of said Nachu Dhali and Re. 1. 00 only to Nachu Dhali. The said Baroda Adhikari was solely responsible for making payment of rent to the landlord of Nachu Dhali. Adhikari possessed the same till 1337 B. S. erecting house thereon. About 10 to 11 years back the defendant No. 2 Shri Subal Chandra Adhikari tried to dispossess forcibly but failed. The defendant No. 2 then filed a criminal case on the plea that the suit property has been purchased by the defendant No. 2 in the name of defendant No. 1. Ultimately the defendant No. 2 lost the criminal case. Thereafter the defendant No. 2 filed Title Suit No. 230 of 1963 but the same was dismissed. The defendant No. 2 then preferred an appeal but the said appeal was also dismissed on 17. 2. 1967. In the plaint the plaintiff averred that in 1374 B. S. i. e. on 13. 11. 1967 Baroda Adhikary sold it to Naren Ghosh. Naren Ghosh then sold it to the plaintiff by registered Deed of sale on 6. 12. 1972 and since then the plaintiff is in possession. Defendants are disturbing the possession of the plaintiff and hence this suit.
( 3 ) THE defendants contested the suit by filing Written Statement. In the written statement the defendants took a stand that the suit is barred by limitation and it is also barred by section 34 of this SPECIFIC RELIEF ACT, 1963. The defendants also stated that the defendant No. 2 purchased a property from Nachu Dhali by a Registered Deed of Conveyance on 20. 12. 1962 and since then they are in possession. According to the defendants, the transaction between Baroda Adhikary and Naren Ghosh was a sham transaction and in fact, no consideration passed. The defendant No. 2 also averred that he is paying rent to the Government and payment has already been made upto 1379 B. S. Defendants also claimed that the said Nachu Dhali recorded his name in the District Settlement Record of Right as well as Revisional Settlement Record of Right.
( 4 ) ON the above pleadings, the learned trial Judge framed the following Issues:1. Is the suit maintained in its present form? 2. Is the suit barred by limitation? 3. Is the suit barred under section 34 of the SPECIFIC RELIEF ACT, 1963? 4. Is the plaintiff entitled to get a decree for injunction as prayed for
( 5 ) TO what relief, if any, is the plaintiff entitled?5. The learned trial Judge after hearing the parties decreed the suit on contest without costs and restrained the defendants by an order of perpetual injunction from disturbing the possession of the plaintiff.
( 6 ) THE learned Munsif basically relied on Exhibit-3 from which it appeared that the learned appellate Court in Title Appeal No. 1639 of 1966 held that there cannot be any controversy that Baroda Adhikary has been an exclusive possession of the suit property for last 35 years prior to 17. 2. 1967. Though any settlement on the basis of the Amalnama had not been proved. It is implied, in the circumstances that Baroda Adhikari got a title at least by adverse possession even if other factors showing his such title are not taken into consideration.
( 7 ) THE
