Transport Corporation of India Ltd. Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....orderpermod kohli, j.1. this application is directed against the order dated 7th july, 2006, passed by the learned district judge, dhanbad, in misc. appeal no. 9 of 2006, dismissing the appeal, preferred by the present petitioner and thereby confirming the order dated 30th january, 2006, passed by the munsif-ii, dhanbad, rejecting the prayer of the petitioner for interim injunction in title suit no. 151 of 2005.2. it is useful to notice the facts, relevant for the purposes of controversies involved in this petition. one md. idrish was the owner, in possession of the land, subject matter of the suit. this land was sold to smt. malti devi vide registered sale deed no. 7095 dated 19th april, 1969. malti devi further sold this property to sushil kumar sinha vide sale deed no. 3360 dated 6th.....

Judgment:
ORDER

Permod Kohli, J.

1. This application is directed against the order dated 7th July, 2006, passed by the learned District Judge, Dhanbad, in Misc. Appeal No. 9 of 2006, dismissing the appeal, preferred by the present petitioner and thereby confirming the order dated 30th January, 2006, passed by the Munsif-II, Dhanbad, rejecting the prayer of the petitioner for interim injunction in Title Suit No. 151 of 2005.

2. It is useful to notice the facts, relevant for the purposes of controversies involved in this petition. One Md. Idrish was the owner, in possession of the land, subject matter of the suit. This land was sold to Smt. Malti Devi vide registered sale deed No. 7095 dated 19th April, 1969. Malti Devi further sold this property to Sushil Kumar Sinha vide sale deed No. 3360 dated 6th April, 1981. The land was mutated in the name of Sushil Kumar Sinha in the records of Circle Officer, Nirsa and receipts were also issued. Petitioner, a company, purchases this land from Sushil Kumar Sinha vide sale deed No. 3816 dated 5th May, 1987 and on the strength of the sale deed, mutation was entered in his favour and revenue receipts were also issued. Petitioner-company constructed a godown on the suit property. It is alleged that the petitioner received a threat of forcible eviction and demolition of the construction. Petitioner claims to have made an application dated 7th November, 2005 to the Anumandal, Dhanbad Circle, Anchal-Nirsa, giving the details of its title and possession and requested for service of requisite notice before acquiring the property. This was followed by another letter by the petitioner-company. It is Stated that receiving no response, petitioner filed writ application being W.F. (C) No. 6235 of 2005 before the High Court of Jharkhand, Ranchi. This petition came to be disposed of vide order dated 29th November, 2005, suggesting the petitioner to approach civil Court of competent jurisdiction, as alternative remedy is available to it. Consequent upon the aforesaid observations, petitioner filed Title Suit No. 151 of 2005 before the learned Munsif-II, Ddhanbad. Along with the suit, an application for interim injunction was also filed, claiming protection of its possession. Learned Munsif after inviting objections from the defendents and rejoinder from the petitioner, dismissed the application for interim injunction vide its order dated 2nd March, 2006 and thereby refused to grant injunction. This order of the learned Munsif was made subject matter of challenge in Misc. Appeal under Order XLIII, Rule 1 of the Code of Civil Procedure before the District Judge, Dhanbad being Misc. Appeal No. 9 of 2006. The appellate Court also dismissed the appeal vides its order dated 7th July, 2006, concurring with the judgment of the trial Court.

3. I have heard learned Counsel for the parties and perused the judgments impugned herein. The trial Court after noticing the respective pleadings of the parties observed:

Since both the parties, plaintiff and defendants claimed to suit land as a rightful owner but this matter has to be decided on the basis of evidence adduced by the concerned parties.

4. Even after making this observation, the Court proceeded to observe that the transfer made in favour of the petitioner is an illegal transfer and does not confer any title. Accordingly, it refused injunction.

5. The appellate Court in its order dated 7th July, 2006 held that the reasons given by the Munsif are adequate and, thus, dismissed the appeal.

6. Both the Courts have committed glaring illegality in not addressing the crucial and important question of possession of the suit property. Though title is a relevant factor in a Title Suit but for the purposes of granting interim injunction, actual physical possession over the suit property constitutes the most relevant issue. Both the Courts have misdirected themselves in ignoring the question of actual physical possession of the petitioner, which was not disputed by the respondents. After observing that the question of title has to be gone into during the trial after the evidence is adduced, the trial Court still rejected the injunction application, holding that the petitioner has no valid title. I am at pain to observe that the cardinal principles for granting injunction, namely, prtma facie case, balance of convenience and Irreparable injury, have not been properly applied on the facts of the case. It is also undisputed that the petitioner has a sale deed in its favour and this is the third sale in the series of transaction. Not even a single sale deed was challenged by any person at any relevant time. In any case, the question of validity of the sale deeds and the right to possess has to be considered during the trial. Petitioner has specifically alleged that after purchasing the land in the year, 1987 it raised construction over i the suit land. Thus, prime facie, possession of the petitioner is established as this fact has not been denied by the defendants in the suit. Assuming petitioner's title is defective but the fact remains that it is in continuous, uninterrupted and unchallenged possession right from 1987, which means the settled possession. In such circumstance petitioner can only be dispossessed by adopting due course of law and not by use of force. Applying the principles, enunciated under law for grant of injunction, petitioner having a sale deed in its favour and uninterrupted possession since 1987, it can not be said that it has no primafacie case. If the respondents are allowed to demolish the construction and take over the possession, it will render the suit infructuous and, thus, the balance of convenience also tilts in favour of the petitioner, consequently resulting irreparable loss. It is a settled law that prtma facie case means a triable issue, which definitely arises in the present case, as observed by the Munsif in its judgment that the question of title is to been decided after the evidence is adduced. How then the Munsif refused injunction is not understandable. Petitioner can not be non-suited at this stage by refusing injunction. In view of the above discussions, I am of the considered opinion that the impugned order dated 30th January, 2006 passed by the learned Munsif-II, Dhanbad, in Title Suit No. 151 of 2005, and the order dated 7th July, 2006, passed by the learned District Judge, Dhanbad, in Misc. Appeal No. 9 of 2006, dismissing the appeal are not sustainable in law. The orders impugned are hereby set aside and the application of the petitioner for grant of injunction is allowed. Consequently, the defendants/respondents are restrained from evicting the petitioner from the suit property without adopting due course of law.