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Friday, September 25, 2015

Maintainability of suit and exparte interim injunction -The appeals of the appellant Housing Board are allowed by holding that ex parte interim order of temporary injunction passed on 16.06.2006 by the learned Subordinate Judge, Alipore in Title Suit No. 121 of 1962 in respect of the property in question purchased from the legal heirs of the late Gangadas Pal who are declared as intermediaries under Section 6 of the Act of 1953 and therefore the same are not binding on this appellant as it is not a party to the proceedings and the Civil Court did not have the jurisdiction to deal with the said property, as per Section 57 B (2) (a), (b) and (c) of the West Bengal Estates Acquisition Act of 1953. Since the interim order of temporary injunction is not binding on the appellant Housing Board and cannot be operated against them, therefore the question of enforcing the same against the appellant Housing Board or its agents or any person claiming through it, through the jurisdictional police to help the plaintiffs-respondents as has been granted by the learned Subordinate Judge by his orders dated 03.07.2006 and 13.01.2010 at the request of the plaintiffs-respondents, does not arise. In view of the appeals of the appellant Housing Board being allowed, the appeals filed by the Bengal Ambuja Housing Development Ltd. are disposed of as they are unnecessary. All Interlocutory Applications are disposed of.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.7209-7210  OF 2015
               (Arising Out of SLP (C) Nos.5902-5903 of 2015)

BENGAL AMBUJA HOUSING
DEVELOPMENT LTD.                    … APPELLANT
                                     Vs.

PRAMILA SANFUI AND ORS.              …RESPONDENTS

                                    WITH

                    CIVIL APPEAL NOS. 7211-7212  OF 2015
               (Arising Out of SLP (C) Nos.5906-5907 of 2015)

WEST BENGAL HOUSING BOARD           ……APPELLANT

                                     Vs.

PRAMILA SANFUI AND ORS.              …RESPONDENTS



                                 J U D G M E N T



V. GOPALA GOWDA, J.



    Leave granted in all the Special Leave Petitions.



The present appeals, filed separately, arise from the impugned judgment  and
order dated 21.11.2014 passed in R.V.W.  No.78  of  2013  and  judgment  and
final order dated 19.12.2012 passed in C.O. No.709/2010 by  the  High  Court
of judicature at Calcutta, whereby the High Court refused to interfere  with
the impugned judgments therein.  The  appeals  arising  out  of  S.L.P.  (C)
Nos.5902-5903 of 2015 have been  preferred  by  the  Bengal  Ambuja  Housing
Development Ltd., whereas the appeals arising out of S.L.P. (C)  Nos.  5906-
5907 of 2015 have been preferred by the  West  Bengal  Housing  Board.  Both
sets of appeals are being disposed of by this common judgment.



As the facts in both the appeals are common, for the  sake  of  convenience,
we refer to the facts of the appeals arising out of S.L.P.  (C)  Nos.  5906-
5907 of 2015, which are stated in brief hereunder:



     The appellant, West Bengal  Housing  Board  (hereinafter  “the  Housing
Board”) is a statutory body constituted under the West Bengal Housing  Board
Act, 1972 with the objective of providing affordable housing  in  the  State
of West Bengal. The appellant is the current owner of the suit  property  in
question  in  the  present  appeals.  The  predecessor-in-interest  of   the
appellant, late Gangadas Pal was the owner of  suit  land  measuring  20.184
acres of land. A suit for partition being Title Suit  No.  43  of  1956  was
instituted in the land  adjacent  to  the  said  land  among  the  co-owners
namely, Sanfui, Naskar, Mondal and Sardar family in  the  year  1956  before
the learned Civil Judge  (Senior  Division),  Alipore,  the  said  suit  was
renumbered subsequently as Title Suit No. 121 of 1962. Gangadas Pal was  not
a party to the said suit at its inception. He  was  impleaded  as  Defendant
No. 54 vide order of the learned Trial Court dated 14.08.1957. Gangadas  Pal
died in June 1958. One  Mr.  Ranjit  Kumar  Ganguly  was  appointed  as  the
Receiver over the said suit properties and he took possession of the  entire
suit  properties  on  November  30,  1958.  After  Gangadas  Pal  died,  the
defendant No.1 in the suit No. 121 of 1962, filed an application before  the
learned Subordinate Judge, Alipore, intimating that among others,  defendant
no. 54 (Gangadas Pal) had died during the pendency of  the  suit,  following
which the suit had abated against them,  as  per  the  provisions  of  Order
XXII, Rules 3 and 4, Code of Civil Procedure, 1908. The learned  Subordinate
Judge, vide order and judgment dated 30.11.1973 dismissed  the  entire  suit
under Order XXII of the Code of Civil Procedure, 1908 holding that the  suit
had abated as against the deceased defendants (including Gangadas  Pal)  and
the right to sue did not survive as against the other surviving  defendants.
The learned Subordinate Judge held as under:



“There is authority to hold that no formal order of abatement need  be  made
as a suit or appeal abates automatically if no application for  substitution
is made within the prescribed time, i.e. within ninety days  from  the  date
of death and not from the date of knowledge. In that  view  of  the  matter,
the order of abatement as recorded above by order  no.  337,  dated  15.9.73
was a mere formality. Sub-Rule 3 of Rule 4 of Order  22  CPC  provides  that
the  suit  shall  abate  as  against  the  deceased  defendant  in  case  no
application is made under  Sub-Rule  1  within  the  time  allowed  by  law.
Abatement takes place by operation of law and it is this crystal clear  that
the   suit   has   abated   against   the   deceased   defendant   nos.   9,
39,54,55,57,60,62,63 in due course of law....”





    Aggrieved by the same, the plaintiffs therein  filed  Title  Appeal  No.
117 of  1974  before  the  learned  District  Judge,  Alipore.  The  learned
District Judge, vide order dated 20.09.1977 held that the  order  passed  by
learned Subordinate Judge was improper and not justified, and  remanded  the
matter back to be considered afresh. The learned  Civil  Judge  (Sr.  Divn.)
after considering the matter afresh held that the plaintiffs  had  not  made
out any sufficient ground for the delay in filing  of  the  application  and
refused to condone the delay and rejected the application of the  plaintiffs
therein. The learned Civil Judge (Sr. Divn.) held as under:

“It is an established principal of law that the suit abates on and from  the
date of death of a party to the suit. From the order no. 315 dated  28.02.73
it is seen that the petition giving the information  of  the  death  of  the
defendants in question. The petitioners waited without any  lawful  exercise
upon 4.4.73. On 4.4.73 they asked for  letter  particulars  on  the  grounds
mentioned in the  Petition.  By  order  no.  329  dated  18.3.73  the  court
directed the defendant no.1 to furnish particulars as regards the names  and
addresses of the deceased defendants nos. 9,39,40,54,55,57,60,62 and  63  by
11.6.73. From order no. 330 dated 4.6.73, it  is  seen  that  the  defendant
no.1  complied  wih  the  direction  of  the  court,  From  all   of   these
developments, it is palpably clear that the petitioners were in the know  of
the death of the defendants in question right  from  28.2.73.  At  any  rate
when all particulars were furnished to  them  on  11.6.73,  the  petitioners
ought to have filed the application  for  setting  aside  the  abatement  at
least within 60 days from the date of abatement or order  of  the  dismissal
in terms of provisions of articles 171 and 172 of the  old  Limitation  Act.
They filed the petition on 13.11.73 for the lapse of 90 days  plus  60  days
even the period is calculated, from 11.6.73.”





This order of  abatement  has  attained  finality  as  no  appeal  has  been
preferred by the parties against the same.



In the meanwhile, the land of late Gangadas Pal was acquired  by  the  State
Government, and came to be vested  in  them,  vide  order  dated  16.09.1971
passed in Big Raiyat Case No.5 of 1967. In 1991, the order  of  vesting  was
challenged by the heirs of Gangadas Pal, by way of a Writ Petition C.O.  No.
11731 (W) of 1991. The learned single judge allowed the  Writ  Petition  and
quashed the order of  vesting  dated  16.09.1971.  Aggrieved  of  the  order
passed in the above Writ  Petition,  the  State  Government  preferred  Writ
Appeal before the  Hon’ble  Division  Bench  against  the  decision  of  the
learned single judge. The learned Division Bench dismissed  the  appeal  and
affirmed the decision of the learned single judge, vide judgment  and  order
dated 18.04.1996. The State Government then preferred Civil Appeal  No.  442
of 1998 before this Court, which  was  dismissed  vide  judgment  and  order
dated 16.04.2003 in the case of West Bengal Government Employees  (Food  and
Supplies) Cooperative Housing Society Ltd. and Ors. v. Sulekha Pal  (Dey)  &
Ors. reported in (2003) 9 SCC 253, when this Court held as under:

“21. So far as the case on hand is concerned, it is seen from the  materials
on record that effective, actual and physical possession of  the  properties
appears  to  have  continued  with  the   intermediary   in   question   and
subsequently in the  possession  of  his  heirs  and  the  Collector/Revenue
Officer could not be said to have either dispossessed  them  or  taken  over
physical or khas possession of the estate and the rights  comprised  therein
in the manner statutorily mandated and provided for under Section  10(2)  of
the Act and Rule 7 of the Rules made thereunder. The  learned  Single  Judge
and the Division Bench of the High court  recorded  concurrently  that  khas
possession continued with the intermediary and after him his  heirs  and  we
find nothing contra concretely to disturb the  same.  The  professed  taking
over of possession seems to be a mere entry on paper but not  in  conformity
with  the  mandatory  procedure  necessarily  to  be  observed  before  such
possession could be lawfully carried out. We  are  not  concerned  with  the
internal controversy between the Cooperative Housing Society  of  its  claim
to have been given with possession pursuant to the agreement of  sale  since
for  the  purposes  of  the  Act,   it   is   the   dispossession   by   the
Collector/Revenue  Officer  in  the  manner  envisaged  in   the   statutory
provisions  under  the  Rules  made  thereunder   that   alone   could   get
legitimatised for determining  the  rights  of  parties.  Consequently,  the
order of the learned Single Judge as well  as  the  order  of  the  Division
Bench, insofar as they sustained the right  in  the  respondents  herein  to
express their choice of  retention,  cannot  be  said  to  suffer  from  any
infirmity in law so as to call for our interference. As a  matter  of  fact,
it is seen from the materials placed on record that after the order  of  the
learned Single Judge, on the respondents exercising their choice,  an  order
dated 2.8.1994 came to be passed by the Revenue Officer  allowing  retention
of 25 acres of agricultural land, 10.16 acres of non-agricultural  land  and
0.06 acres of homestead land as per "B" Schedule  to  the  said  proceedings
and declaring that 27.95 acres  of  agricultural  land  and  0.14  acres  of
homestead land as per details contained in the  "C"  Schedule  to  the  said
proceedings stood vested in the State. This order,  which  appears  to  have
been made subject to the result of the appeal has to be  construed  in  that
manner and the rights of parties thereunder could and ought to  be  only  in
terms of and subject to  the  modified  order  of  the  Division  Bench  and
nothing more........ The vesting is total and complete once Notification  is
issued under Section 4 and  got  published  by  the  combined  operation  of
Sections 4 and 5 of the Act and what is  secured  under  Section  6  is  the
right to hold on to the possession, subject to the limits prescribed in  the
statute by option for retention of the same before khas  possession  of  the
properties have been taken over as envisaged  under  Section  10(3)  of  the
Act.”



The ownership of the plot of land was thus retained by the  legal  heirs  of
Gangadas Pal as intermediaries as provided  under  Section  6  of  the  West
Bengal Estates Acquisition, Act 1953.



 On 08.06.2006, the plaintiff-respondents herein filed an application  under
Order XXXIX Rules 1 and 2, Code of Civil Procedure, 1908, in Title Suit  No.
121 of 1962, seeking for grant of a  temporary  injunction  restraining  the
parties from alienating, encumbering or creating  third  party  interest  on
the scheduled properties. The learned Subordinate Judge, Alipore vide  order
dated 16.06.2006, allowed the  application  for  temporary  injunction,  and
passed the purported consent order even  though  the  legal  heirs  of  late
Gangadas Pal had not given their consent, directing the parties to  maintain
status quo with respect to the suit properties,  and  restrained  them  from
selling, transferring, alienating inter party or with any third party or  in
any manner whatsoever from changing the nature and  character  of  the  suit
property till disposal of the suit. On 03.07.2006, the learned Trial  Court,
at the instance  of  the  plaintiffs-respondents  directed  the  Officer  in
charge, Purba Jadavpur, Police Station to ensure  compliance  of  the  order
dated 16.06.2006. On 07.07.2006,  the  learned  Subordinate  Judge,  Alipore
allowed the amendment application dated 28.01.2003,  by  which  inter  alia,
the plot of land belonging to the heirs of Gangadas Pal  was  added  to  the
suit schedule properties appended to the plaint. While  passing  the  order,
the learned Subordinate Judge held as under:



“On perusal of  the  instant  applications  under  consideration  and  after
hearing the  submissions  of  the  learned  advocates  court  comes  to  the
conclusion that the amendment is formal in nature and would not  change  the
nature and character of the suit, neither would  it  prejudice  any  of  the
parties. Besides, it is even observed by the Court that,  the  instant  suit
cannot proceed without amendment be allowed.”



It is important to note at this stage that the heirs of  late  Gangadas  Pal
were not heard during the proceedings, as  they  were  not  parties  to  the
suit.

On 19.08.2008,  the  appellant  Housing  Board  acquired  ownership  of  the
property  by  way  of  five  registered  conveyance  deeds  the  title   and
possession of the said 20.184 acres of land from the  successors-in-interest
of the late Gangadas Pal. On 19.12.2009, one of the plaintiffs  (respondents
herein) filed a petition before  the  learned  Subordinate  Judge,  Alipore,
praying that the Superintendent  of  Police,  South  24  Paraganas  and  the
Officer in Charge of Purba Jadavpur be directed to  ensure  compliance  with
the orders of temporary injunction passed by the Trial Court  on  16.06.2006
and  03.07.2006  in  respect  of  the  property  in  dispute.  The   learned
Subordinate Judge vide order dated 13.01.2010, directed  the  Superintendent
of Police to see that the consent order of temporary injunction  granted  by
the Civil Court in favour of  the  plaintiffs-respondents  in  the  original
suit in respect of the suit properties in  dispute  was  maintained  by  the
parties. Aggrieved by the said order the Bengal Ambuja  Housing  Development
Ltd. (appellant herein) filed an application, C.O. No. 709  of  2010  before
the Hon’ble High Court under  Article  227  of  the  Constitution  of  India
questioning the correctness of the same. The High Court, vide  its  judgment
and order dated 19.12.2012 dismissed the same. The High Court held that  the
third party (appellant Housing Board) had purchased the  suit  property  lis
pendens, and that no permission was taken  from  the  court  for  the  same.
Thus, the provisions of Section 52 of the Transfer  of  Property  Act,  1882
would  govern  the  transaction.  The  High  Court,  while  dismissing   the
application filed by the Bengal Ambuja Housing  Development  Ltd.,  held  as
under:

“The present mater  is  confined  to  the  implementation  of  an  order  of
injunction passed on consent. As  recorded  above,  upon  hearing  both  the
parties, an order of status quo was passed  directing  the  parties  not  to
change the nature and character of the suit  property.  When  the  applicant
tried to intervene in the said order of status quo, the steps for  rendering
police help for the learned Receiver was taken and I think  since  an  order
of status quo was passed in consent was prevailing, the  learned  Court  was
justified  for  giving  necessary  directions  upon  the  concerned   police
authority to take appropriate steps for the preservation and  protection  of
the suit property and the Court was also competent  to  give  directions  to
the police authority to render possible help s that the possession taken  by
the present Receiver, namely, Sri Ashoke Ray be maintained.

From the above facts, it is clear that the  third-party/  petitioner  herein
had purchased the suit property lis  pendens  and  that  no  permission  was
sought for from the Court to purchase the suit property.

So, the principle of lis pendens as provided in Section 52 of  the  Transfer
of Property Act shall govern the issue.

…………………

The learned Trial judge is justified to  pass  the  impugned  order.  Record
does not show that the petitioners had  obtained  any  permission  from  the
Court to purchase a portion of the  suit  property.  They  had  purchased  a
portion of the suit property at their own  risk  while  the  said  suit  was
pending and the property was in the possession of the learned Receiver.”



Aggrieved by the order, the  appellant  Bengal  Ambuja  Housing  Development
Ltd. filed an S.L.P. (C) No. 8049 of 2013 before this Court challenging  the
legality of the said order, which petition was dismissed  as  withdrawn,  by
granting liberty to file the appropriate application before the High  Court.
The abovesaid appellant then filed a Review Application, R.V.W.  No.  78  of
2013 before the  High Court of Calcutta to review  the  judgment  and  order
passed in C.O. No. 709 of 2010 urging  various  tenable  grounds.  The  High
Court by its judgment and order dated 21.11.2014 has  dismissed  the  Review
Application. The High Court held that the grounds urged by the appellant  in
the Review  Petition  did  not  warrant  a  review  of  its  judgment  dated
19.12.2012. The High Court further held that it must be considered that  the
judge who rendered the judgment was no longer available with the  Court  and
that the liberty that a judge has to correct himself upon his mistake  being
brought to his notice, is not available to another judge hearing the  review
and therefore the Review Petition was rejected by passing  the  order  which
is also impugned in this appeal. Hence the present  appeals  were  filed  by
the above appellants.


We have heard the learned senior counsel for both the parties. On the  basis
of the factual evidence on record produced before us, the  circumstances  of
the case and also in the light of the rival legal contentions urged  by  the
learned senior counsel for both the parties,  we  have  broadly  framed  the
following points which require our attention and consideration:-

Whether the appeals filed by the appellant Housing  Board  are  maintainable
in view of the fact that the earlier  SLP  filed  by  the  appellant  Bengal
Ambuja Housing Development Ltd. was dismissed with liberty  accorded  to  it
to file appropriate petition before the High Court?



Whether the order of temporary injunction dated  16.06.2006  passed  by  the
learned Subordinate Judge, Alipore, passed in respect of the  suit  property
without impleading the vendors and the appellant Housing  Board,  which  had
acquired the right, title, interest upon the same can  be  enforced  against
them through the jurisdictional police as has been granted  by  the  learned
Subordinate Judge, Alipore, though the sale deed in favour of the  Board  is
not challenged by the plaintiffs-respondents  and  the  said  order  can  be
enforced against the appellants through jurisdictional police  by  an  order
dated 13.01.2010 passed in the Title Suit?



Whether the inclusion of the property of  the  Housing  Board  to  the  suit
instituted in the Civil Court by way of  an  amendment  by  the  plaintiffs-
respondents which property was  conferred  upon  the  legal  heirs  of  late
Gangadas Pal as intermediary right  holder  under  Section  6  of  the  West
Bengal Acquisition of Estates Act, 1953 and  the  institution  of  suit  for
partition by the contesting respondents  is  barred  by  the  provisions  of
Sections 57 - B (2)(a), (b) and (c) of the Act of 1953?



What order?



Answer to Point No. 1



Mr. J.P. Cama, the learned senior counsel appearing on  behalf  of  some  of
the plaintiffs-respondents strongly  made  the  submission  that  since  the
earlier SLP of the appellant- Bengal Ambuja  Housing  Development  Ltd.  was
dismissed as withdrawn by an order of this Court  dated  13.02.2013  in  the
case of Bengal Ambuja Housing Development Limited & Anr. v.  Pramila  Sanfui
& Ors., it is no  longer  open  to  the  said  appellant  to  challenge  the
correctness of the original order passed by the High Court by way of  filing
other SLPs again. In support of the above  legal  submissions,  the  learned
senior counsel has placed reliance on the decision  of  this  Court  in  the
case of Kumaran Silk Trade (P.) Ltd. v. Devendra & Ors.[1], wherein  it  has
been held as under:

“Since the petition for special leave to appeal has already  been  dismissed
by this Court, it is no more open to the petitioner  to  seek  challenge  to
challenge the original order in this Court again by invoking Article 136  of
the Constitution of India....

......It is not open to the  petitioner  to  challenge  the  original  order
again in this Court after withdrawing the earlier appeal, reserving  only  a
liberty in itself of seeking a review of the original order.”





  The  learned  senior  counsel  also  contends  that  an  appeal   is   not
maintainable against the decision of  a  court  in  a  Review  Petition.  He
places reliance on the decision  of  this  Court  in  the  case  of  Shanker
Motiram Nale v. Shiolalsing Gannusing Rajput[2], wherein it  has  been  held
as under:

“This appeal is obviously incompetent. It is against an order of a  Division
Bench of the High Court rejecting the application for review of  a  judgment
and decree passed by a learned Single Judge, who seems to  have  retired  in
the meantime. It is not against the basic judgment. Order 47 Rule 7  of  CPC
bars an appeal against the order of the court rejecting the review. On  this
basis, we reject the appeal.”



This case has been relied upon by this Court in the cases  of  Vinod  Kapoor
v. State of Goa[3] and M.N Haider v. Kendriya Vidyalaya Sangathan[4]



 The learned senior counsel on behalf of the respondents  submits  that  the
earlier SLP filed by Bengal Ambuja Housing Development  Ltd.  was  dismissed
as withdrawn with liberty to file an appropriate petition  before  the  High
Court to review its order questioned in the earlier SLPs. Since liberty  was
not given to it to challenge that very same impugned  order  once  again  by
filing SLPs in the event of review petition  being  dismissed,  the  appeals
filed by Bengal Ambuja Housing Development Ltd. once again  challenging  the
very same order is not legally permissible. This contention  has  been  very
vehemently disputed by learned Attorney General, Mr. Rohatgi,  who  contends
that the impugned order was not challenged by the  appellant  Housing  Board
before this Court, and that the interim order of  temporary  injunction  and
order dated 13.01.2010 directing the jurisdictional police  to  enforce  the
order of temporary  injunction  are  not  binding  and  cannot  be  enforced
against it, as it was not a party to the original suit  proceedings  at  any
point of time. It is further contended that it has acquired  valid  interest
and title upon the property in dispute as the legal heirs of  late  Gangadas
Pal have executed the sale deed of the property in its  favour,  which  land
stood retained by them, in terms of the decision of this Court in  the  case
of Sulekha Pal referred to supra. Thus, the order  of  temporary  injunction
passed in the original suit  proceedings  in  respect  of  the  property  in
dispute without impleading either  the  vendors  of  the  appellant  Housing
Board  or  the  heirs  of  the  late  Gangadas  Pal  to  the  original  suit
proceedings cannot be said  to  have  a  binding  effect  on  the  appellant
Housing Board.  Therefore, the  learned  Subordinate  Judge  ought  to  have
taken this aspect of the  matter  into  consideration  while  directing  the
Superintendent of Police, South 24 Paraganas to enforce  the  interim  order
of temporary injunction against  Bengal  Ambuja  Housing  Development  Ltd.,
which is the lease holder as the Board has granted lease hold rights in  its
favour to develop the property  by  joint  venture  to  provide  residential
accommodation to the economically weaker sections of the society,  which  is
a laudable object of the Board under the statutory provisions  of  the  West
Bengal Housing Board Act, 1972.


Thus, the aforesaid decisions of this Court upon  which  reliance  has  been
placed by the learned senior counsel appearing on  behalf  of  some  of  the
plaintiffs-respondents  cannot  be  applied  either  against  the  appellant
Housing Board or its lessee or any other person claiming through it,  as  it
was not a party to the proceedings and it did not challenge the  said  order
earlier before this Court and therefore the Civil Appeals filed  by  it  are
maintainable.



Answer to Point Nos.2 and 3

 The learned Trial Court passed  an  order  of  status  quo  on  16.06.2006,
restraining the defendants  therein  from  selling,  transferring,  creating
third  party  interest  or  otherwise  disposing  of  the   suit   scheduled
properties. The said interim order of temporary injunction  was  purportedly
a consent order. On 07.07.2006, though the legal heirs of late Gangadas  Pal
were not brought on record, the learned Trial Court  allowed  the  amendment
application dated 28.01.2003, to amend the suit schedule properties.



 Mr. Mukul Rohatgi, learned Attorney General and Mr. Dushyant Dave,  learned
senior counsel appearing on behalf of the appellants contend that  the  High
Court failed  to  consider  that  neither  the  appellants  herein  nor  the
predecessor-in-interest of the appellants were parties to the Suit  No.  121
of 1962 before the learned Subordinate Judge, Alipore, and thus,  they  were
not aware of the order of temporary injunction that had been passed  in  the
said suit proceedings. The learned senior counsel further contend  that  the
High Court erred in not appreciating the fact that the  said  plot  of  land
was not a part of the suit scheduled  property  originally.  It  appears  to
have been included in the suit schedule as one of the properties  after  the
death of Ganga Das Pal and abatement of the  suit  proceedings  against  him
without bringing his legal heirs on record. The status quo order  passed  in
the original suit sought to be enforced against the  appellants  was  passed
after the suit was abated against late Gangadas  Pal  and  without  bringing
his legal heirs on record. The original  suit  had  abated  against  him  by
order dated 30.11.1973, the suit being Title Suit No. 121 of 1962.  Further,
the land of late Gangadas Pal was only included in the  suit  properties  on
07.07.2006, that too without making  the  heirs  of  late  Gangadas  Pal  as
parties to the said proceedings, or informing them about the  same.  It  was
further contended that by the learned senior counsel  that  the  High  Court
failed to appreciate that neither the appellants, nor their predecessors  in
title and interest (the legal heirs of late Gangadas Pal) upon the  property
involved in these proceedings were made parties to the  suit  and  therefore
the question of  giving  consent  by  them  to  the   interim  orders  dated
16.06.2006 and 13.01.2010 does not and cannot arise, especially in light  of
the fact that the order of abatement of the  original  suit  proceedings  as
against late Gangadas Pal had attained finality. It  was  further  contended
by Mr. Dushyant Dave, the learned senior counsel appearing on behalf of  the
appellant, Bengal Ambuja Housing Development Ltd. that the  High  Court  had
failed to consider the scope of the principle of lis pendens  under  Section
52 of the Transfer of Property  Act,  1882.  The  property  which  has  been
purchased by the appellant Housing Board was not transferred  by  any  party
to the Title Suit No. 121 of  1962.  The  Information  Slip  issued  by  the
Alipore Court makes it clear that the names of the heirs  of  late  Gangadas
Pal were not included as parties to the Title Suit No. 121 of 1962.



 On the other hand, Mr. Sanjay Hegde, learned senior  counsel  appearing  on
behalf of the respondent- Receiver contends that  the  appellants  presently
do not have the locus standi to challenge any subsequent  orders  passed  in
the Title Suit No. 121 of 1962. The property  in  dispute,  upon  which  the
claim is made by them, being a portion of the suit property is  governed  by
the principle of lis pendens as provided  under  the  Transfer  of  Property
Act, 1882. The learned senior counsel further contends that the  High  Court
has righty observed that no serious prejudice has  been  occasioned  to  the
appellants on account of the order passed by the learned  Subordinate  Judge
to  enforce  the  interim  order  of  temporary   injunction   through   the
jurisdictional police. An order of status  quo  had  been  passed  by  Trial
Court as far back as 16.06.2006. The parties were restrained  from  selling,
transferring, alienating or otherwise disposing of the suit property to  any
third party in any manner whatsoever. There was also an order  of  temporary
injunction restraining the parties from changing the  nature  and  character
of the suit property. The property in question being  a  part  of  the  suit
property could not have been transferred in favour of the appellant  Housing
Board during pendency of the restrain order. Therefore, it is urged  by  the
learned senior  counsel  that  no  indulgence  ought  to  be  shown  to  the
appellants in any manner whatsoever to interfere with  the  impugned  orders
by this Court in exercise of its appellate jurisdiction.



 We have heard Mr. Mukul Rohatgi, learned Attorney General and Mr.  Dushyant
Dave, the learned senior counsel appearing on behalf of  the  appellant  and
Mr. Sanjay Hegde and Mr. J.P. Cama, the learned senior counsel appearing  on
behalf of the respondents and have perused the documents produced before  us
in Civil Appeals in support of  their  respective  claims  to  consider  the
rival legal contentions urged on  behalf  of  the  parties  and  answer  the
points that are framed in these appeals.



 We agree with the  contentions  advanced  by  the  learned  senior  counsel
appearing on behalf of the appellants. The original suit instituted  by  the
plaintiff-respondents against late Gangadas Pal had  abated  vide  order  of
the learned subordinate judge, Alipore dated 30.11.1973. The said order  has
attained finality as no appeal has been filed  questioning  the  correctness
of the same. By order dated 07.07.2006 passed  by  the  learned  Subordinate
Judge, the property in question of late Gangadas Pal was added  as  part  to
the suit schedule properties by way of an amendment to  the  plaint  by  the
time his legal heirs had already acquired intermediary rights under  Section
6 of the West Bengal Estates  Acquisition  Act,  1953.  The  heirs  of  late
Gangadas Pal were not made parties to the said Title  Suit  proceedings.  On
03.07.2006,  the  learned  subordinate  judge  passed  an   order   granting
temporary injunction restraining the parties to the suit from alienating  or
transferring the suit property. A perusal of “Annexure P/10”  which  is  the
Information Slip dated 17.02.2010 issued by the office of the learned  Trial
Court in Title Suit No. 121 of 1962, makes it amply clear that the heirs  of
late Gangadas Pal were not made parties to the suit. The  appellant  Housing
Board purchased the land in question from the heirs of late Gangadas Pal  on
19.08.2008, as is evidenced from the conveyance  deed  “Annexure  P-9”.  The
appellant Housing Board was not a party to the Title Suit at  any  point  of
time. It has purchased the land in question from its owners.  This  property
was included in the suit schedule properties by  way  of  amendment  to  the
plaint after an application was  allowed  by  order  dated  07.07.2006.  The
plaintiffs-respondents herein did not have any right to get  the  said  land
included as part of the suit schedule  properties  for  partition,  and  the
learned Subordinate Judge erred in allowing the  application  to  amend  the
suit schedule to include the property in question. The  learned  Subordinate
Judge has erred in passing order of temporary injunction under  Order  XXXIX
Rules 1 and 2 of the Code of Civil  Procedure,  1908,   in  respect  of  the
property in question after it was included to the suit schedule as order  of
temporary injunction can be granted against only the  parties  to  the  suit
property. Further, the grant of police  protection  without  impleading  the
appellants to the original suit proceedings is also not legally  permissible
and the therefore the said order is liable to be set aside. The  High  Court
ought to have considered the relevant fact  that  the  appellants  were  not
parties to the suit, and the suit had abated as against late  Gangadas  Pal.
Thus, the order of temporary injunction passed by  the  learned  Subordinate
Judge on 03.07.2006 does not apply to the land in question  which  was  sold
to the appellant Housing Board.



 Further, in the instant case,  the  order  of  temporary  injunction  dated
03.07.2006 was purportedly granted by consent is  also  not  sustainable  in
law. The question of consent being given by  either  the  appellant  Housing
Board or the predecessors in interest who are its vendors did not  arise  as
they were not parties to the said suit. It is a well  settled  principle  of
law that either temporary  or  permanent  injunction  can  be  granted  only
against the parties to a suit. Further the purported consent order in  terms
of Order XXXIX of the Code of Civil Procedure is  only  binding  as  against
the parties to the suit. In such a case, the order of the Subordinate  Judge
to grant police protection against the  appellant  Housing  Board  which  is
enjoying the property is erroneous in law and is liable to be set aside.



 The  original  owner  in  the  instant  case,  late  Gangadas  Pal  was  an
intermediary in khas possession of the land in question in terms of  Section
6 of the West Bengal  Estates  Acquisition  Act,  1953.  Thus,  the  learned
Subordinate Judge did not have the jurisdiction to entertain any  suit  with
respect to the said property, in light  of  the  provision  of  Section  57B
(2)(a), (b) and (c) of the West Bengal Estates Acquisition Act, 1953,  which
states as under:



“57B. Bar to jurisdiction of Civil Court in respect of certain matters.-



    XXX             XXX           XXX



(2) No Civil Court shall entertain any suit or  application  concerning  any
land or any estate, or any right in such estate, if it relates to---



alteration of any entry in the record-of-rights finally published,  revised,
made, corrected or modified under any of the provisions of Chapter V,



a dispute involving determination of the question, either  expressly  or  by
implication, whether a raiyat, or an intermediary, is or is not entitled  to
retain under the provisions of this Act such land  or  estate  or  right  in
such estate, as the case may be, or



any matter which under any of the provisions of this Act is to be ,  or  has
already been, enquired into, decided, dealt with or determined by the  State
Government or any authority specified therein.”



In view of the fact that the right, title and  interest  upon  the  disputed
property has been settled in favour of the vendors of the appellant  Housing
Board, who are the legal  heirs  of  the  late  Gangadas  Pal,  who  was  an
intermediary of the land in question in terms  of  Section  6  of  the  West
Bengal Estates Acquisition Act, 1953, adding of the property in question  to
the suit schedule property in  dispute  cannot  be  the  subject  matter  of
partition in view of the express  provisions  of  the  West  Bengal  Estates
Acquisition Act, 1953 which excludes the jurisdiction of the civil court  in
respect of any rights in such  estate  as  entry  in  record  of  rights  is
published. In the instant case, the names of the heirs of late Gangadas  Pal
were included in the record of rights in pursuance of the  order  passed  in
the Writ Petitions in connection with the Big Raiyat Case  No.  5  of  1967,
which order was affirmed by this Court in the case of Sulekha Pal,  referred
to supra.

The amendment of plaint to include the suit property of the  heirs  of  late
Gangadas Pal was done in pursuance of the order  dated  07.07.2006,  wherein
the learned Subordinate Judge, Alipore added the land in question which  has
been sold to the appellant Housing Board, to the schedule of suit  lands  in
Title Suit No. 121 of 1962. The same is  erroneous  in  law  and  therefore,
liable to be set aside as the said order is not  binding  on  the  appellant
for the reasons stated supra.

Answer to Point No. 4

The order of temporary  injunction  passed  in  favour  of  the  plaintiffs-
respondents is accordingly set  aside  in  so  far  as  it  relates  to  the
property of the appellant Housing Board  is  concerned  which  property  was
included by way of an amendment to the plaint.



At the end, it was brought to our  notice  by       Mr.  Sanjay  Hegde,  the
learned senior  counsel  appearing  on  behalf  of  the  Receiver  that  the
appellant Housing Board has entered into a  Joint  Venture  Settlement  with
Bengal Ambuja Housing  Development  Ltd.  without  following  the  mandatory
procedure of inviting applications to participate in the tender to  get  the
leasehold rights for the joint development of the property  in  question  to
discharge its statutory obligation. It was further contended by the  learned
senior counsel that in not doing so, the action  of  the  appellant  Housing
Board has become  arbitrary,  unreasonable  and  unfair  as  it  amounts  to
conferring largesse upon the appellant  Bengal  Ambuja  Housing  Development
Ltd. The learned senior counsel contended  that  this  is  impermissible  in
law, as has been held in a catena of cases by this Court in relation to  the
property owned by the Central or State Government  or  Statutory  Boards  or
Corporations or Companies owned by either the Central or State  governments,
including the case of Ramana Dayaram Shetty  v.  The  International  Airport
Authority of India[5], which was relied upon in the more recent decision  of
Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh[6]. The  learned
senior counsel further contends that this court has laid down the  law  with
reference to Article 14 of the Constitution of India keeping in view  as  to
how to alienate public property by granting reasonable  rates  and  granting
agency of  joint  venture  without  following  the  mandatory  procedure  of
inviting applications from the competent persons so  that  the  persons  may
come forward and participate in the proceedings  to  give  fair  and  better
offer in the interest of public. That has not been  done  by  the  appellant
Housing Board in the instant case. Thus, public interest has been  adversely
affected as a result of the arbitrary and unreasonable action  on  the  part
of the appellant Housing Board in granting leasehold rights  for  the  joint
development of the property in question.  The  learned  senior  counsel  has
prayed that the appellant Housing  Board  be  directed  to  dispose  of  the
property and make good the schemes in the interest of the beneficiaries  and
utilize the same for their benefit.



The above contention of the learned senior counsel cannot be dealt  with  by
us, as the same is not in controversy in the present  case  before  us.  The
aggrieved parties are at liberty to seek the above mentioned  prayer  in  an
appropriate proceeding.



Since we have answered the points formulated in these appeals in  favour  of
the appellant Housing Board by recording the reasons  in  the  judgment,  we
have to allow the appeals of  the  appellant  Housing  Board.  We  pass  the
following order:



The appeals of the appellant Housing Board are allowed by  holding  that  ex
parte interim order of temporary injunction  passed  on  16.06.2006  by  the
learned Subordinate Judge, Alipore in Title Suit No. 121 of 1962 in  respect
of the property in question purchased from  the  legal  heirs  of  the  late
Gangadas Pal who are declared as intermediaries under Section 6 of  the  Act
of 1953 and therefore the same are not binding on this appellant  as  it  is
not a party to the  proceedings  and  the  Civil  Court  did  not  have  the
jurisdiction to deal with the said property, as per Section 57  B  (2)  (a),
(b) and (c) of the West Bengal Estates Acquisition Act of 1953.



Since the interim order of  temporary  injunction  is  not  binding  on  the
appellant Housing Board and cannot be operated against them,  therefore  the
question of enforcing the same against the appellant  Housing Board  or  its
agents or any person claiming through it, through the jurisdictional  police
to help the plaintiffs-respondents  as  has  been  granted  by  the  learned
Subordinate Judge by his orders  dated  03.07.2006  and  13.01.2010  at  the
request of the plaintiffs-respondents, does not arise.

In view of the appeals of the appellant Housing  Board  being  allowed,  the
appeals filed by the Bengal Ambuja Housing Development Ltd. are disposed  of
as they are unnecessary. All Interlocutory Applications are disposed of.




                          …………………………………………………………J.
                          [T.S. THAKUR]




                                       …………………………………………………………J.
                          [V. GOPALA GOWDA]



                                       …………………………………………………………J.
                          [R. BANUMATHI]



New Delhi,
September 18, 2015
-----------------------
[1]    (2007) 12 SCC 549
[2]    (1994) 2 SCC 753
[3]    (2012) 12 SCC 378
[4]    (2004) 13 SCC 677
[5]    AIR 1979 SC 1628
[6]    (2011) 5 SCC 29


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