Lakshmi Rani Das v. Rabi Chandra Das And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/1/2024 Lakshmi Rani Das Vs.

Rabi Chandra Das and others Mr. Ajoy Kumar Mondal .... for the petitioner Mr. KMB Jayapal ... for the respondents January 16, 2024 [SR] Item No.8 1.

The revisional application has been filed challenging an order dated November 29, 2023 passed in Misc. Appeal No.12 of 2023 by the learned District Judge, South Andaman District, rejecting the appeal. The learned lower Appellate Court affirmed the order dated August 24, 2023 passed in Title Suit No.72 of 2021, by which the petitioner's prayer for injunction was rejected by the learned Civil Judge Senior Division, at Port Blair.

2.

The petitioner/plaintiff has challenged the said order on the following grounds:- (a) That the learned Courts failed to take note of the fact that the documents relied upon by the defendant no.1 were prepared by forging the signature of the petitioner.

(b) Once the Courts decided that there was a dispute which ought to go to trial, the Courts ought to have passed the order of injunction, restraining the defendants from changing the nature, character and possession of the property. (c) The question of forgery and falsification of the documents ought to have been looked into and the alleged property of the plaintiff ought to have been protected from further alienation. (d) Prima facie case, is one of the parameters for grant of an injunction and once the Courts found that there was a dispute with regard to the right, title and interest in respect

of the suit property, there was no justification in rejecting the application for injunction.

3.

Mr. Jayapal, learned advocate appearing on behalf of the opposite parties /defendants, submits that the suit is at the stage of evidence. The name of the defendant No. 1 was mutated in the suit property alongwith the name of the plaintiff. The defendant No. 1 claims through a Will left behind by one Smt. Ujjwala Dasi (grandmother) who was the mother-in-law of the plaintiff. That the plaintiff and the said Ujjwala had got their names mutated in the record of rights and Ujjwala Dasi thereafter had bequeathed her portion of the property in favour of the defendant No. 1. The defendant No. 1 had enjoyed the said portion of the property since long and claimed right, title and interest. The plaintiff remained silent for long years. Part of the property was diverted to commercial site long ago, to the knowledge of the plaintiff. 4.

Thus, the question of granting any injunction at this stage, would not arise.

5.

The plaintiff filed Title Suit No. 72 of 2021 for declaration of title, eviction and recovery of Khas possession. The suit properties comprised of survey plot No. 96 and 97 situated at Sita Pur village, Shaheed Dweep under Port Blair Tehsil.

6.

According to the plaintiff, she and her family migrated from East Pakistan. Her husband died in 1965. Ujjwala Dasi, her mother-in-law died in 1984.

The Andaman and Nicobar Administration decided to allot land to migrated refugees from East Pakistan. As such, 1.5 hectares of land in survey plot No. 96 Paddy II and 0.87 hectares in survey plot No. 97, Paddy-II, were allotted in favour of the plaintiff. Since inception, the plaintiff was in exclusive possession of the survey plots. Thereafter, the plaintiff married one Kamal Das and had children. The defendant No. 1, Rabi Chandra Das had continuously disturbed the plaintiff's occupation and encroached into the plantation in the suit property. The defendant No.1 along with other defendants tried to forcefully enter into the suit property sometime in 2012, and encroached around 500 Sq.mtrs in survey no. 97 (presently survey No.97/1/1). The plaintiff objected to the same and filed a complaint in 2012. The defendants again entered into the plaintiff's land and grabbed further 500 Sq.mtrs of land from survey plot No. 96 (presently

Survey No.96/2/1). A two storied building was constructed thereon. Since the month of 2015, the defendants on and off, entered into the property forcefully and encroached the property standing on survey No. 97/1/1. The defendants also encroached into the plantation area, standing on survey no. 96/1/1. In 1998 the Tehsildar, Port Blair, in connivance with the defendant no. 1 forged and created fake records. Thus, the preparation of the records of rights in favour of the defendants on the basis of fake records ought to be cancelled. The subsequent transfer of the property by the defendant No. 1 to the other defendants should also be cancelled. Ujjwala Dasi did not have any right, title and interest in the property in question and hence could not have executed the Will in favour of Rabi Chandra Das. Thus, the plaintiff prayed for reliefs of declaration, injunction and recovery of Khas possession. 7.

The learned trial Court, upon considering the contentions of the parties came to the conclusion that the holding register reflected that mutation of the property was allowed in the joint names of Smt. Ujjwala Dasi and Lakshmi Rani Das vide an order of the TPB dated 12th May, 1978. Survey no. 96/2 for an area of 0.05 hectares had been converted into a house site in September 25, 1984. An area of 222 and 223 Sq. mtrs had been surrendered by the plaintiff out of survey No. 96 and 97 respectively, for construction of public road sometime in 1986. Thereafter, the mutation was allowed in respect of the remaining half portion of the landed property under survey Nos. 96/1, 96/2 and 97/1 belonging to Smt. Ujjwala Dasi, in favour of Rabi Chandra Das sometime in 1998.

8.

Records also revealed that both the plaintiff and Rabi Chandra Das filed a petition before the Joint Commissioner for subdivision of the survey Nos. 96/1, 96/2 and 97/1 totalling to an area of 2.02 hectares. A spot inspection was made by the officials and a proposal for sub-division was furnished. The proposal was approved. Thereafter, the survey no. 96/1/1 was recorded in the names of Rabi Chandra Das, Ratan Das, Dipankar Das and Asha Das.

9.

The land bearing survey no. 96/2/1 of an area of 250 Sq.mtrs was diverted to a commercial site. Further, the land measuring around 500 Sq. mtrs under survey no. 97/1/1 out of

4238.5 Sq.mtrs had been diverted to commercial site for the purpose of setting up an eco friendly resort. 10.

Although the plaintiff claimed that the defendant No. 1 had got his name entered in the records of right by forging the signature of the plaintiff, this is a matter of trial. The plaintiff also did not take any steps in accordance with law, either for correction of records of right or for deletion of the names of the defendants. A double storied house was constructed long ago, i.e. 2013. 11.

Moreover, it appears that the diversion of the land to commercial site and house site was done sometime in 2015. It also appears that both the plaintiff and the Rabi Chandra Das had applied before the Joint Commissioner for sub division of the survey lands. The mutation was effected in 1998 and the subdivision was made in 2000. The suit was filed in 2021. 12.

Under such circumstances, the learned Courts did not err in refusing to pass any injunction. There is neither any immediate need nor any urgency to protect of the property in question The defendants have, prima facie, established their possession. The mutation, diversion etc. took place more than twenty years ago. Moreover, the possession of the defendants since long, is available from the land records.

13.

Under such circumstances, this Court does not find any reason to interfere with the order impugned. However, the suit should be disposed within six months, positively. The injunction could not have been granted only on the basis of allegation that the documents of the mutation and diversion were prepared on the basis of forged documents. This is a matter of trial, which has to be decided on evidence.

14.

Accordingly, the revisional application is disposed of on the above terms, but without any interference with the order impugned. 15.

All parties are directed to act on the basis of the server copy of this order.

( Shampa Sarkar, J. )