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
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
