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2019 Supreme(Cal) 469
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
BISWAJIT BASU, J.
Badal Chandra Kundu & Another - Appellant
Versus
Netai Mahato & Others - Respondent
Civil Order No. 3813 of 2017
Decided On : 15-05-2019
Rwitendra Banerjee, Sougata Mitra, Sanjib Bandyopadhyay, Advocates.
The main legal point established in the judgment is that a party, having prima facie possession and title over the property, may be entitled to an order of injunction to prevent disturbance during construction work, based on the balance of convenience and inconvenience.
Headnote:
specific performance - suit property - West Bengal Land Reforms Act, 1955 - Rule 59 of West Bengal Land Reforms Manual, 1991 - The defendants sought an order of injunction against the plaintiffs to prevent disturbance during construction work on the suit property. The plaintiffs contested the application, denying the defendants' possession of the property. The Court found that the defendants had prima facie possession and title over the property, supported by a mutation certificate and Grampanchayat permission. The Court held that the balance of convenience and inconvenience favored the defendants, granting the order of injunction. The defendants' application was allowed, setting aside the appeal court's decision and restoring the trial court's order.
Fact of the Case:
The plaintiffs sought specific performance of an agreement for the transfer of the suit property, alleging that the defendants had illegally transferred the property to defendant no. 2. The defendants filed an application for injunction, claiming possession and permission for construction on the property. The trial court granted the injunction, which was later set aside by the appeal court. The defendants filed a revisional application under Article 227 of the Constitution of India.
Finding of the Court:
The Court found that the defendants had prima facie possession and title over the suit property, supported by a mutation certificate and Grampanchayat permission. The Court held that the balance of convenience and inconvenience favored the defendants, granting the order of injunction. The appeal court's decision was set aside, and the trial court's order was restored.
Issues: The main issue was whether the defendants were entitled to an order of injunction against the plaintiffs, given the dispute over possession and construction on the suit property.
Ratio Decidendi: The Court held that the defendants, having prima facie possession and title over the suit property, were entitled to the order of injunction. The balance of convenience and inconvenience favored the defendants, justifying the grant of the injunction.
Final Decision: The Court allowed the defendants' revisional application, setting aside the appeal court's decision and restoring the trial court's order. The defendants were granted the order of injunction against the plaintiffs.
JUDGMENT :
1. The present revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for specific performance of agreement and is directed against the judgment and order dated September 16, 2017 passed by the 3rd Court of learned Additional District Judge, Purulia, in Miscellaneous Appeal No. 50 of 2016.
2. The opposite parties filed a suit being Title Suit No. 88 of 2016 in the Court of learned Civil Judge(Junior Division), at Purulia for the following reliefs:-
"a. A decree for specific performance of the contract dated 21.04.2019 including agreement dated 26.03.1981 for execution and registration of a proper deed of conveyance by the Defendants no. 1 and 2 in favour of the plaintiffs being the descendents of Methila Mahatani in respect of the suit property within a time to be fixed by the Ld. Court filing which liberty may be given to the plaintiffs to get the same executed and registered through court, be passed in favour of the plaintiffs and against the defendants.
b. A decree for cost of the suit be passed in favour of the plaintiffs.
c. A decree for any other relief or reliefs to which the plaintiffs would be found entitled under the law and equity be also passed in favour of the plaintiffs and against the defendants."
3. The plaint case of the said suit in brief is that the predecessor-in-interest of the plaintiffs namely Mithila Mahatani @ Mithila Mahato was the absolute owner of the suit property. She proposed to transfer the suit property to the defendant no. 1 on condition that the defendant no. 1 would retransfer the same to her and the defendant no. 1 accepted the said proposal. The said Mithila Mahatani @ Mithila Mahato then by a registered deed of sale dated March 26, 1981 transferred the suit property to the defendant no. 1 on a consideration price of Rs. 1999/-. The defendant no. 1 by a registered agreement executed on the same date i.e. on March 26, 1981 agreed to retransfer the suit property to said Mithila Mahatani @ Mithila Mahato within seven years from the said date of execution of the said agreement on a consideration price of Rs. 1999/-.
The said Mithila Mahatani @ Mithila Mahato on April 21, 1985 corresponding to 10th Chitra, 1351 B.S.' paid the consideration price of Rs. 1999/- to the defendant no. 1 and demanded execution and registration of proper deed of reconveyance in her favour, in terms of the said agreement dated March 26, 1981 but the defendant no. 1 avoided to do so, instead executed an agreement on April 21, 1985. The defendant no. 1 by the said agreement agreed to retransfer the suit property in favour of said Mithila Mahatani @ Mithila Mahato and acknowledged delivery of possession of the suit property in her favour and also the acceptance of the said consideration price.
The said Mithila Mahatani @ Mithila Mahato after coming into the possession started cultivating the suit property and after her death on March 7, 1986 the plaintiffs inherited the suit property being her heirs and legal representatives. The plaintiffs from a notice of a proceeding under Section 144 of the Code of Criminal Procedure, initiated by the defendant no. 2 came to learn that defendant no. 1 taking advantage of non-execution and non-registration of the deed of retransfer of the suit property in terms of the agreement dated April 21, 1985 and March 26, 1981 has transferred the suit property in favour of his son, the defendant no. 2. The plaintiffs under such circumstances sent the notice dated February 15, 2016 demanding execution and registration of proper sale deed in respect of the suit property in their favour in terms of the said agreement dated April 21, 1985 but the defendants denied the existence of the said agreement dated April 21, 1985. Hence the suit.
4. The defendants in the suit filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'said application for injunction' in s
