Mana Lall v. The Tehsildar, Mayabunder And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** CO/13/2021 Mana Lall ...

Petitioner Vs.

The Tehsildar, Mayabunder & others.

...

Respondents Mr.KMB Jayapal, Advocate ... for the petitioner Mr.Krishna Rao, Advocate ...for the Administration September 14, 2021 [GNC] Item No.8.

The instant Revisional application is directed against a judgment and order dated 22nd April, 2021 passed by the learned Additional District Judge, Mayabunder in Miscellaneous Appeal No.1 of 2021 reversing the order of injunction passed by the trial Court.

The suit is filed by the plaintiff/petitioner for restoration of the possession in respect of the suit property and every part thereof upon declaration of right, title and interest therein. It is specifically stated in the said application that the predecessor-ininterest of the plaintiff/petitioner encroached upon the land which was subsequently regularized but since there was a discrepancy in the survey number, applications were made and after correction of the same the plaintiff/petitioner was possessing the said property as the successor of the person who encroached the land. Some unknown persons tried to take possession of the property and constructed three pillars thereupon.

An injunction application was taken out restraining the defendants/opposite parties their men and agents to enter upon or occupy or disturb the possession of the plaintiff/petitioner or to dispossess the plaintiff/petitioner from the suit property or to make any kind of construction thereupon till the disposal of the suit.

It is not in dispute that the application for temporary injunction was disposed of directing the parties to maintain status quo. The defendants/opposite parties carried such order to the first appellate court under Order 43 Rule 1 (r) of the Code of Civil Procedure and the said order of temporary injunction was set aside simplicitor on the ground that a person must approach the Court with clean hands and one who seek equity must shown that he is in possession of the suit property. The aforesaid observation appears to have disturbed the present petitioner while challenging the said order.

According to Mr.Jayapal, learned advocate appearing for the petitioner that the first appellate court has not returned any independent findings and have proceeded in slipshod manner in reversing the order of temporary injunction granted by the trial Court. It is further submitted that the scope of the suit has not been considered in its true and proper perspective and therefore such finding cannot be sustained.

Mr.Rao, learned advocate appearing for the Administration submitted that the relief claimed in the plaint and the injunction sought for in an application for temporary injunction are

mutually destructive and therefore, there is no infirmity and/or illegality in the order of the court of appeal below in setting aside the order of temporary injunction.

As indicated above, the relief claimed in the plaint relates to a declaration of title in respect of the suit property and restoration of the possession. The possession may not be relevant for the purpose of injunction had it would have been sought in an appropriate manner than what has been claimed and/or prayed for in the application for temporary injunction. Though Mr.Jayapal attempted to improve the case but such facts does not germane from the pleading and therefore, this Court cannot take into consideration such facts. The relief claimed in the plaint and the relief claimed in an application for temporary injunction are mutually inconsistent and therefore this Court does not find any infirmity and/or illegality in the ultimate decision taken by the court of appeal below.

There is no fetter on the part of the revisonal Court to supply reasons in the event, the ultimate conclusion is found to be correct. In view of the discussions made hereinabove, this Court does not found any infirmity or illegality in the ultimate decision taken by the court of appeal below. Therefore, this revisonal application stands dismissed.

However, the observation made by the first appellate court below and this Court is restricted to the application for temporary injunction filed by the plaintiff/petitioner and shall

not have any persuasive effect at the later stage of the proceeding.

( Harish Tandon, J.)