IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 1091 of 2009
Ajit Singh ...... Petitioner
Versus
Chanchal Singh & anr. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
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For the petitioner: Mr. A.K.Das, Advocate
For respondent no.2: Mr. Praveen Kumar, Advocate
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03/ Dated: 20th April, 2009
1. The present petition has been preferred by the original
defendant in Title Suit No. 12 of 2005, whereby, it has been
submitted by the original defendant that though the stay
was not granted, as prayed for by the respondent (original
plaintiff) by the trial court vide order dated October 7, 2005
and though his appeal being Misc. Appeal No. 1 of 2006 is
dismissed vide order dated July 21, 2007, the stay has been
granted to the original plaintiff by self contradictory
observations, made in the order, passed by the lower
appellate court and hence this writ petition has been
preferred under Article 227 of the Constitution of India by
the original defendant.
2. Having heard learned counsel appearing for both the sides
and looking to the facts and circumstances of the case:
(i) It appears that the present petitioner is the original
defendant in Title Suit No. 12 of 2005. The suit has
been filed for declaration of title and confirmation of
possession and also for grant of permanent injunction.
(ii) It also appears from the facts of the case that the
respondent, who is the original plaintiff, had also
preferred stay application in his Title Suit. This stay
application was dismissed by the trial court vide order
dated October 7, 2005. Both the sides are claiming
title over the properties and both want to make
construction upon the same.
(iii) It appears that being aggrieved and dissatisfied with
the order, passed by the trial court upon the stay
application, a Misc. Appeal bearing Misc. Appeal No. 1
of 2006 was preferred by original plaintiff, before the
5th Additional District Judge, Singhbhum East at
Jamshedpur, who dismissed the appeal vide order
2.
dated July 21, 2007 (Annexure 2 to the memo of
present petition).
(iv) It appears that the appellate order is in favour of the
present petitioner (original defendant) but in the last
paragraph i.e. paragraph no.12 of the order it has
been observed as under:
“Therefore, I find and hold that there is no merit in this
appeal and it fails and accordingly, dismissed. Since both
sides are claiming their right, title and possession over the
suit land. Thus, under the fact and circumstances, both
parties are directed to maintain status-quo over the suit
land till the disposal of the T.S.no. 12/05 for the ends of
justice.”
3. Thus, it appears that the lower appellate court has
confirmed the order, passed by the trial court and dismissed
the appeal and simultaneously he has also granted stay in
favour of the original plaintiff. Two things at a time is not
possible and permissible. Either appeal should be allowed
and the stay should be granted or appeal should be
dismissed and the order of trial court should be confirmed.
4. In these set of circumstances, I hereby remand the matter to
5th Additional District Judge, Singhbhum East at
Jamshedpur, for his fresh decision upon Misc. Appeal No. 1
of 2006. It is not clear from the impugned order whether the
appeal is partly allowed or fully dismissed, looking to
paragraph no.12 of the impugned order, as quoted
hereinabove.
5. In view of these facts, the impugned order is hereby quashed
and set aside with the aforesaid directions. The Misc. Appeal
shall be decided by the lower appellate court as expeditiously
as possible and practicable within a period of twelve weeks
from the date of receipt of a copy of the order, passed by this
Court. Fresh decision, will be taken by the lower appellate
court, without being influenced by the earlier order, passed
at Annexure-2 to the memo of present petition and it shall be
decided on its own merits, looking to the facts and
circumstances of the case and the evidence etc.
6. The writ petition stands disposed of accordingly.
(D.N. Patel, J)
A.K.Verma/