ALTAMISH Vs. MD. TARIQUE

JUDGEMENT

(1.) The petitioner has filed the instant petition for quashing the order dtd. 5/1/2018, passed in Title Suit No. 381 of 2013 by which the learned Sub-Judge-III, Bettiah, West Champaran has rejected the petition filed by the defendant/petitioner under Sec. 151 of the Code of Civil Procedure (hereinafter 'CPC') for restoration of possession over the suit land, as the petitioner/defendants was forcibly dispossessed by plaintiff/respondent no. 1.

(2.) Briefly stated the case of the petitioner is that the original plaintiff/respondent no. 1 filed Title Suit No. 381 of 2013 for declaration of her title on the basis of sale deed over the schedule-1 of the plaint and also for order of ejectment of defendants-1st set. Petitioner is defendant no. 2 and his father was defendant no. 1, both contesting defendants-1st set. The plaintiff claimed that suit land is the ancestral and purchased land and defendants-1st set has encroached upon some portion of the purchased land of the plaintiff. The land was purchased in the year 2012 by the plaintiff/respondent no. 1. The defendants 1st set appeared and submitted that the suit land is ancestral land of the parties and was amicably partitioned on 15/3/1996, a memorandum of partition was also prepared, which was duly signed by the parties and jamabandi no. 1985 was created in their names for an area of 14 dhurs. Out of the said land of 14 dhurs, defendant no. 1 sold 03 dhurs and 12 dhurki to one S. Baburao and remaining 10 dhurs and 08 dhurki land remained in possession of the defendant/petitioner and his house is standing there and Municipal holding was also created. Defendant no. 4 filed his separate written statement supporting the case of the plaintiff/respondent no. 1. Thereafter, on 6/6/2017, the defendant/petitioner filed a petition under Sec. 151 of the CPC mentioning that on 14/4/2017, the plaintiff broke the lock of his house and forcibly dispossessed this defendant who was residing at Delhi for the purpose of treatment of his father, although the possession of the defendants-1st set was admitted as relief for ejectment of defendents-1st set has been sought in the plaint. Admittedly, defendant was in peaceful possession and without any lawful order, the plaintiff and her sons dispossessed him and took forcible possession and for the said purpose Bettiah P.S. Case No. 279 of 2017 was instituted and charge-sheet has been submitted against the plaintiff/respondent no. 1. This application was opposed by the plaintiff/respondent no. 1, who filed her rejoinder on 24/7/2017 trying to justify the action of dispossession on the ground that the allegation petition was not verified and supported by affidavit and also on the ground that the petition was beyond the ambit of CPC. The plaintiffs/respondents further claimed that the police case was false. The learned court below rejected the prayer made by the defendant/petitioner vide impugned order dtd. 5/1/2018 on the ground that the defendant has not filed any counter claim in his written statement and also that the petition under Sec. 151 of CPC was not maintainable, if there is specific provision in the CPC. The learned trial court further held that the facts placed by the defendant/petitioner cannot be adjudicated without taking evidence.

(3.) Learned counsel appearing on behalf of the petitioner submitted that the learned trial court has miserably failed to consider that no person can be deprived of his property except through the process of the Court and in the instant case, when it was the admitted case of the plaintiff that the defendant was in possession and if the defendant/petitioner has been dispossessed, the learned court below was duty bound to restore his possession. Learned counsel further submitted that the learned trial court has held that as the defendant has not filed any counter claim but admittedly, the plaintiff and the defendants have their residential houses over the suit property. As per the case of plaintiff/respondent no. 1, the defendant has encroached upon certain portion of his purchased land and the same has been denied by the defendant. So, the issue is yet to be decided by the learned court below and the parties have to stand on their own legs. But ignoring the said fact, the petition has been rejected. The learned trial court further committed an error when it held that petition under Sec. 151 of CPC is not maintainable, as there is specific provision in the CPC, but CPC is silent on this point and in such type of situation only a prayer for mandatory injunction can be made and hence prayer for restoration of possession has been rightly made under Sec. 151 of C.P.C. Learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in the case of Sushil Kumar Dey Biswas and Anr vs Anil Kumar Dey Biswas and Anr (Civil Appeal No. 10689 of 2014), reported in (2015) 3 SCC 461, submitting that the facts of the present case are similar to the case before the Hon'ble Supreme Court, wherein the respondent/plaintiff dispossessed the appellant/defendant from premises. Though it was admitted that the defendant was having possession of certain portion of the suit property and the application under Sec. 151 of the CPC was filed for restoration of possession, which was rejected by the learned appellate court as well as High Court. But the Hon'ble Supreme Court allowed the appeal and directed the respondent/plaintiff to restore the possession of the appellant/defendant. Learned counsel also relied on the decision of Hon'ble Supreme Court in the case of Meera Chauhan v. Harsh Bishnoi, reported in (2007) 12 SCC 201 : 2006 SCC OnLine SC 1399 at page 204, submitting that the facts of this case were also similar to the facts of the present case and the Hon'ble Supreme Court held that an application under Sec. 151 CPC can be entertained in the given facts of the case and the power under Sec. 151 to pass order of injunction in the form of restoration of possession is no more res integra. Thus, learned counsel submitted that the order of the learned trial court is not in accordance with law and has been passed in a mechanical manner. Hence, the impugned order be quashed.