Anand
Prasad Agarwalla Vs. Tarkeshwar Prasad & Ors [2001] Insc 292 (9 May 2001)
S. Rajendra
Babu & Shivaraj V. Patil Rajendra Babu, J. :
J U D
G M E N T
L.I.T.J
These
appeals arise out of interlocutory applications filed in two suits. A suit was
filed in T.C.No. 2/1996 in the High Court of Calcutta by United Bank of India against Hanuman Foundries Ltd. for
fore closure and sale of hypothecated land. Pursuant to a decree passed by the
Court, the Court receiver sold on 29.8.1990 the hypothecated property which was
subsequently challenged before this Court and the said sale was set aside and
the matter was remanded to the High Court for conduct of the sale in accordance
with the law by auction after due publication of the sale to enable all the
intended bidders to participate in the sale.
It was
also made clear that if any party has got any right or remedy, the same has to
be worked out elsewhere according to law without widening the scope of the suit
and not in this suit. Subject to making of these observations the appeal was
allowed by this court.
A suit
in O.S. No.311 of 1997 was filed
(i) for
a declaration that the plaintiffs therein are purchasers of the entire land
measuring 21.65 acres;
(ii) that
they were raiyats in respect of the land and
(iii) for
permanent injunction restraining Hanuman Foundries Ltd., the appellant and
other guarantors and the United bank of India from interfering with their possession. In the meanwhile an application
was filed in the proceedings arising out of the decree passed in T.C.No.2 of
1996 for a direction of auction of the property measuring 21.65 acres in terms
of the order made by this Court in G.A. No. 3178 of 1997. At this stage an
application for temporary injunction was filed in suit No.311 of 1997 and that
temporary injunction was granted initially. Thereafter the application filed
for bringing the property to auction in proceedings arising out of the decree
in T.C.No.2 of 1996 and the application for grant of temporary injunction in
the other suits were taken up together by the learned Single Judge of the High
Court.
The
learned Single Judge held that the contesting respondents have no manner of
right to the land in question and dismissed the application for interim
injunction and allowed the application directing sale of the mortgaged
properties. Aggrieved by that order appeals were filed before the Division
Bench.
The
properties in question had been mortgaged to Bihar State Finance Corporation
and a Suit had been filed under the provision of Section 31 of the State
Finance Corporation Act, 1951 for recovery of the amount and bringing the
property for sale for recovery of monies lent by it.
Pursuant
to that sale the contesting respondents claim to have purchased the property in
question. It appears the same property had been also mortgaged to United Bank
of India and suit in T.C.No.2 of 1996 had
been filed.
In the
appeals, the Division Bench analysed the matter and is of the view that the
property which had been brought to sale pursuant to a decree passed in favour
of Bihar State Finance Corporation appears prima facie to have been purchased
by the respondents. A sale certificate had been issued in this regard which was
subsequently amended to include within its fold the entire disputed land and
record of rights indicating the possession of the land with the respondents.
The Appellate Court felt that serious questions had been raised for
consideration in the course of the suit and therefore there was a prima facie case
for consideration. Particularly the sale certificate that had been issued
indicated that the appellant had purchased the properties in the auction sale.
A presumption arose in favour of that possession pursuant to the records of
rights.
On
that basis the Division Bench held that the temporary injunction should be
granted subject to certain conditions.
Hence
these appeals.
In
challenging this order, Shri Bhaskar P. Gupta, the learned senior Advocate for
the appellant and Shri Dhruv Mehta and Smt. Shoba, the learned counsel for the
United Bank of India, submitted that the learned Single Judge had examined the
various aspects of the case under which the sale certificate had been issued in
favour of the contesting respondents. The learned Single Judge was, prima
facie, of the view that it was only a lease hold property in respect of which
the sale had been held and it had expired; that the sale certificate stood
amended after a long lapse of time and whether such amendment relates back to
date of original certificate is suspect; that these contesting respondents
acquired lease hold rights only in respect of land measuring 5.36 acres. The
claim of contesting respondents as raiyats was also not justified as the said
land was in possession of the Court on the date of vesting in West Bengal
Government.
It may
not be appropriate for any Court to hold mini trial at the stage of grant of
temporary injunction. As noticed by the Division Bench that there are two
documents which indicated that there was prima facie case to be investigated.
Unless the sale certificate is set aside or declared to be a nullity, the same
has legal validity and force. It cannot be said that no right could be derived
from such certificate. Secondly, when the contesting respondents were in possession
as evidenced by the record of rights, it can not be said that such possession
is by a trespasser. The claim of the contesting respondents is in their own
right. The decisions referred to by the learned counsel for the appellant are
in the context of there being no dispute as to ownership of the land and the
possession was admittedly with a stranger and hence temporary injunction is not
permissible. Therefore, we are of the view that the Division Bench has very
correctly appreciated the matter and come to the conclusion in favour of the
respondents. In these circumstances, we dismiss these appeals. We may notice
that the time bound directions issued by the Division Bench will have to be
adhered to strictly by the parties concerned and the suits should be disposed
of at an early date but not later than six months from the date of the
communication of this order.
The
appeals are accordingly dismissed. There shall be no order as to costs.
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