When a stranger Purchaser
threatens to entered into joint possession with members of the
undivided family temporary injunction should be granted
restraining him from entering into possession even if such an
order amounts to eviction of the stranger purchaser
Calcutta High Court
Ashim Ranjan Das vs Sm. Bimla Ghosh And Others on 22 February, 1991
Equivalent citations: AIR 1992 Cal 44, (1991) 1 CALLT 422 HC, 1991 (1) CHN 229
Bench: A K Nandi
1. This revision is directed against the judgment and order passed in Misc. Appeal No. 512 of 1989 by the 10th Court of the Additional District Judge, Alipore.
2. The plaintiffs filed a suit for injunction. The disputed property belongs to four brothers, namely, Hrishikesh, Rash Behari, Bibhuti and Nanilal. Hrishikesh purchased 1/5th share of Nanilal by virtue of a deed dated 21-1-69. Hrishikesh died on 10-4-75 leaving behind him the plaintiffs in the suit as his legal heirs and successors. Rashbehari died leaving four sons and two daughters. Bibhuti Ghosh is alive. The disputed property is an undivided family dwelling house of the plaintiffs and other co-sharers. Bibhuti transferred his interest by virtue of an Indenture of lease dated 19-6-89 in favour of the defendant-Dream Land Apartments. Similarly, by virtue of another deed the heirs of Rashbehari transferred their interest by virtue of a deed of lease on the same date in favour of the defendant. Both these deeds were intended to lease out the shares of those co-sharers for a period of 999 years. About a month before this long-term lease a monthly tenancy was created in favour of the lessee and possession of the leasehold property was delivered to him. The plaintiffs in essence filed the suit under Section 44 of the Transfer of Property Act seeking to restrain the lessee from interfering with the possession of the plaintiffs. The trial Court refused to grant any ad interim injunction. The Court of Appeal below entertained an appeal against the order of refusal of the ad interim injunction. This is the instant appeal under review. During the pendency of the appeal, the plaintiffs filed a petition before the Court of Appeal below for an ad interim injunction. The Court of Appeal below, however, disposed of the Misc. Appeal and granted ad interim injunction restraining the defendant from entering into joint possession with the plaintiffs.
3. Mr. Roychowdhury, appearing for the defendant-petitioner, takes a very preliminary point to impeach the judgment of the Court of Appeal below. His first contention is that in order to grant an ad interim injunction the Court must take notice of the provision under Order 39, Rule 3, C.P. Code. No ad interim order of injunction shall be granted without assigning reasons therefor. In support of his contention, he very much relies upon the decision in M/s. Kakkad Sales Agency v. Om Prokas Jaluka, 90 CWN 194. The proposition laid down in paragraphs 32 and 34 can by no means be doubted. Rule 3 contemplates that the Court can grant injunction only when the Court is satisfied that the object of granting injunction shall be defeated by the delay unless injunction is granted. Proviso lays down that in granting injunction the Court shall record reasons. We must not overlook the legislative intent behind provision. The whole intention is that the Court will not by an ex parte order prejudice the interest of a party who is not before the Court unless the Court finds that the issue of ad interim injunction is indis-pensible. That is all the more reason why the Legislature requires the Court to record reasons for granting an ad interim injunction. In the instant case, the matter was not dealt with ex parte. On the contrary, the petitioner had filed a petition of objection in the court of appeal below against the plaintiffs' petitior for ad interim injunction filed in the court of appeal below. Evidently, therefore, the parties were before the Court and the Court had opportunity to hear both the sides to pass the order now challenged before me. This is not a case where the Court was passing an ex parte order. The provision contained in Rule 3 of Order 39, C.P.C. should not be mechanically followed. The legislative intent and purpose must be noticed. In the instant case, there is no prejudice of the defendant since he sought to make out his case by filing his objection and made all his submissions before the court of appeal below which passed a contested order. In my opinion, the argument of Mr. Roychowdhury on this score is bound to fail.
4. The second grievance of Mr. Roychowdhury is that there was no urgency to pass an interim order. I am unable to subscribe the view expressed by Mr. Roychowdhury. The members of an undivided family are protected under the law to maintain their privacy. If a stranger seeks to interfere with the privacy the members will naturally require an urgent protection. No stranger can be permitted to pierce the veil of that protection. That is the urgency in this case.
5. Relying upon the decision in Mukta-keshi Dawn v. Haripada Majumdar, , Mr. Roychowdhury contends that the Court is not entitled to look to the defence disclosed in the petition of objection against the injunction while dealing with the injunction matter. The defendant cannot be permitted to blow hot and cold in the same breath. The case referred to by Mr. Roychowdhury is distinguishable from our case. In our case, the defendant not only filed an objection against injunction but also contested the proceeding in the Court of Appeal below. When the result was found to be unfavourable he turned round to challenge the said order on the technical ground. Let us assume for argument's sake that the plaintiffs cannot be permitted to look into the petition of objection filed by the defendant. Nevertheless, this is a fit case where ad interim, injunction may be granted on the basis of the materials available before the Court. The lease deeds would show prima facie that there were kitchen, bath, privy etc. in the disputed house and that undivided share of a house was sought to be leased out by the lessors. The defendant cannot be heard to say that there is prima facie no material to show that it was an undivided family dwelling house. The brothers or their children might be separate in mess. But they were undivided qua the dwelling house. So the plaintiffs can very well ask for a protection. There is no controversy that the defendant is a stranger to the family and that he is a lessee in respect of a part of the disputed house. So, even if the case is considered ex parte the plaintiffs are entitled to get an ad interim injunction.
6. Mr. Roychowdhury contends that he has spent a lot of money and what is his remedy left with him. He may maintain a suit for partition if that is permissible in law or ask back the money from the lessors on the ground of frustration of lease. But on account of his hardship which he volunteered to acquire the plaintiffs cannot suffer.
7. That the co-sharer of an undivided family dwelling house is entitled to a protection underSection 44 of the Transfer of Property Act can by no means be questioned. Second para ofSection 44 of Transfer of Property Act reads as follows:--
"Where the transferee of a share of dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
In Paresh Nath v. Kamal Krishna, , it was held that upon a transfer of an undivided share of a family dwelling house by a co-sharer the other co-sharer may maintain a suit for injunction restraining the stranger-transferee from exercising any act of joint possession in respect of the share transferred. A co-sharer is entitled to exercise his possession over every portion of his property. In Surendra Nath v. Ram Chandra, (1971) 75 CWN 195, this High Court went so far as to say that a stranger-purchaser is reduced to the position of a trespasser. His purchase vests in him title only and gives him a right to sue for partition and nothing more. Section 44 of the Transfer of Property Act negatives his claim to possession before partition. Section 4 of Partition Act spells out his right to sue for partition. Former is the limit and the latter is extent of what he had acquired by purchase. Supreme Court virtually gave a sanction to the legal proposition propounded in Surendra Nath's case (supra). In Dorab Cawasji v. Coomi Sorab, , the Supreme Court approved the view of a High Court that once it is held that the plaintiff is entitled to protection under the second part of Section 44 of the Transfer of Property Act and the stranger-purchasers are liable to be restrained it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. The remedy of the stranger-purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession. It has further been observed in paragraphs 25 and 28 that denial of right of injunction under Section 44 of the Transfer of Property Act would cause irreparable injury to the other members of the family.
8. This was a case where the Supreme Court confirmed grant of temporary injunction in a pending suit. Ours is a case of granting of ad interim injunction. Having regard to the peculiar facts and circumstances of this case this Court should not find it difficult to confirm the order of ad interim injunction even in revision though normally the revisional Court will look to the justification of the limited order of ad interim injunction. In our case also the defendant has already entered into possession by virtue of a prior monthly tenancy. He is liable to be evicted by virtue of this injunction order in view of the decision of the Supreme Court.
9. In view of the foregoing reasons, 1 confirm the judgment and finding of the Court of Appeal below. The revisional application accordingly fails. This order shall not prejudice the trial Court in coming to his independent finding at the trial.
10. Revision dismissed.
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