IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.52 of 2011
Mustafa Kamal @ Md. Mustafa Kamal
Versus
Mahmooda Khatoon & Ors
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ORDER
08. 27.09.2011. I have heard the learned counsel, Mr. Waliur
Rehman on behalf of the appellant and Mr. S.S. Dwivedi,
the learned senior counsel on behalf of the respondents on
the interlocutory application No.3632 of 2011. The parties
have filed counter affidavit, supplementary affidavit and
rejoinder etc.
(2) The plaintiff-appellant has filed this appeal
against the Judgment and Decree dated 07.01.2011
passed by Subordinate Judge 8th Saran at Chapra in Title
Suit No.184 of 1997 dismissing the plaintiff suit for
declaration of title and further for declaration that the
defendants have no title over the suit property. The
learned Court below dismissed the said suit.
(3) The appellant filed the interlocutory
application No.3632 alleging that during the pendency of
this appeal, the defendant-respondent transferred major
portion of the suit property to different persons by
executing sale deeds through power of attorney holder,
Fahin Akhtar. Many sale deeds have been annexed with
the injunction application. The learned counsel for the
appellant submitted that if the respondents are not
restrained from transferring the suit property further the
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appellant shall suffer loss and irreparable injury and in the
event if the appeal will be allowed, he will not be able to
recover the possession of the property from various
transferee and moreover, it will lead to multiplicity of
proceedings. The learned counsel further submitted that
the transferee is trying to make construction over the
transferred land during the pendency of the appeal. In
such view of the matter, the appellant had no option but
to file the application for injunction.
(4) It appears that subsequent transferee has
been added as respondent in this First Appeal on the
application filed by the appellant who are respondent No.5
to 25.
(5) A counter affidavit has been filed on behalf of
the respondent No.1 and 2 and also on behalf of the
transferees. In the counter affidavit on behalf of the
respondent No.1 and 2 written as rejoinder at paragraph
22, it has been mentioned that these defendants-
respondents are giving undertaking that they will not
alienate any property in future without permission of the
Court. The learned senior counsel in support of the said
statement has submitted before the Court that because of
family requirement, the property has been sold and,
therefore, the necessity has been fulfilled. In such
circumstances, the respondent No.1 & 2 will not transfer
any further land and if necessary will arise in future during
the pendency of the appeal, they will file application for
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permission to transfer but at this stage, their undertaking
may be noted. In view of these undertaking given by the
respondent No.1 & 2 that they will not transfer the
property without the permission of the Court, the same is
recorded here in this order so as to bind them.
(6) So far the counter affidavit of respondent
No.3 to 25 is concerned, they have stated that they may
be allowed to construct the residential house at their own
risk and if the appeal will be allowed, they will not claim
equity and the appellant will get the possession of the
property with structure thereon. Because, they have
purchased the property with a view to construct a
residential house. The learned counsel for the respondent
submitted that this appeal is of the year 2011 and it is not
likely to dispose of in near future and, therefore, for
unlimited period, the purchasers who are bonafide
purchasers cannot be restrained from enjoying the fruits
of their property because by the transfer, the defendant-
respondent have got valid title.
(7) In reply to the above submission, the learned
counsel for the appellant submitted that on the ground
that the appeal will not be disposed of in near future, the
respondents cannot be allowed to construct residential
house because in such circumstances, the real difficulty
will be faced by the appellant only after if the First Appeal
is allowed.
(8) The respondent cannot be allowed to
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construct even at their own risk because if they are
restrained, there will be no hardship to them but if they
are not restrained, the appellant shall suffer irreparable
loss if the appeal is allowed.
(9) In a decision reported in A.I.R. 2005
Supreme Court 104(Maharwal Khewaji Trust vs.
Baldev Dass), the Hon‟ble Apex Court at paragraph 10 has
held as follows:
“We do not think in the facts and
circumstances of this case, the lower appellate
Court and the High Court were justified in
permitting the respondent to change the nature of
property by putting up construction as also by
permitting the alienation of the property, whatever
may be the condition on which the same is done.
In the event of the appellant’s claim being found
baseless ultimately, it is always open to the
respondent to claim damages, or, in an appropriate
case, the Court may itself award damages for the
loss suffered, if any, in this regard. Since the facts
of this case do not make out any extraordinary
ground for permitting the respondent to put up
construction and alienate the same, we think both
the Courts below, namely, the lower appellate
Court and the High Court erred in making the
impugned orders. The said orders are set aside and
the order of the trial Court is restored.”
(10) In A.I.R. 1962 Supreme Court 527
(Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth
Hiralal), the Apex Court has held that “Section 151 itself
says that nothing in the Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make
orders necessary for the ends of justice. In the face of
such a clear statement, it is not possible to hold that the
provisions of the Code control the inherent power by
limiting it or otherwise affecting it. The inherent power has
not been conferred upon the Court; it is a power inherent
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in the Court by virtue of its duty to do justice between the
parties before it. Further, when the Code itself recognizes
the existence of the inherent power of the Court, there is
no question of implying any powers outside the limits of
the Code. Thus, there being no such expression in S.94
which expressly prohibits the issue of a temporary
injunction in circumstances not covered by Order 39 or by
any rules made under the Code, the Courts have inherent
jurisdiction to issue temporary injunctions in
circumstances which are not covered by the provisions of
Order 39, C.P.C., if the Court is of opinion that the
interests of justice require the issue of such interim
injunction.”
(11) In (2001) 2 P.L.J.R. 268 (Dharam Nath
Ojha vs. Raghunath Ojha), this court has held that “law
is well settled that if a lis has been admitted for
adjudication, then it becomes the duty of the Court to
preserve the subject matter of the litigation by an
appropriate order so that the same is available at the time
of final adjudication and the decree does not become a
barren one.”
(12) It appears that the submission advanced by
the learned counsel for the respondent was the
submission before the Hon’ble Supreme Court in the case
of Maharwal Khewaji Trust (Supra). It appears that in
that case, the lower appellate Court and also the High
Court set aside the order of injunction granted by the trial
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Court. The Apex Court held that the appellate Court and
the High Court were not justified in permitting the
respondent to change the nature of the property by
putting of construction. It further appears that the order
of the trial Court was set aside by High Court on the
ground that the transfer and / construction will be hit by
Section 52 of the Transfer of Property Act. The Apex
Court also considered the hardship to the parties.
(13) In view of the above settled principle of law,
in my opinion, this is a fit case where the subsequent
purchasers should be specifically restrained from
transferring or making any construction over the suit
property which they have purchased as admittedly they
are not the purchasers during the pendency of the list. I,
therefore, restrained the respondent No.3 to 25 from
transferring and / or making any construction whatsoever
on the suit property.
(14) In view of the nature of the order passed
above, it is desirable that the appeal be heard and
disposed of at an early date. In such view of the matter,
the office is directed to make the appeal ready so that the
same may be heard as early as possible. Thus, the
interlocutory application is allowed in terms of the order
indicated above.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 27thday of September, 2011
Sanjeev/A.F.R.