IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.614 of 2010 1. Shailesh Kumar, @ Sheleash Kumar, Son of Sri Sushil Kumar Thakur. 2. Smt. Kanchan Kumari, Wife of Sri Shailesh Kumar Both are resident of Mauza Raghauli, Pargana Jarai of Police Station, Bisfi District Madhubani ………………… Defendant 2nd Set…………… Appellants. Versus 1. Sri Chandra Bhushan Thakur 2. Sri Indra Bhushan Thakur Both are sons of Late Hriday Narayan Thakur Both are resident of village Kamtaul of Police Station Kamtaul Post Office Kamtaul District Darbhanga ……….. Plaintiffs ……….. Respondent 1st party 3. Most Jagtaran Devi Wife of Late Ram Bhajan Thakur resident of village Kamtaul of Police Station Kamtaul, Post Office Kamtaul District Darbhanga. …………… Defendant 1st party…………. Respondent 2nd party 4. Sri Gopal Thakur 5. Sri Shankar Thakur Both are sons of Bisheshwar Thakur 6. Sri Chandeshwar Thakur, Son of Late Rama Nand Thakur. 4 to 6 are resident of village Kamtaul of Police Station Kamtaul Post Office Kamtaul District Darbhanga. ………. Defendant – 3rd party……. Respondent 3rd Party. 7. Sri Madan Thakur 8. Sri Nageshwar Thakur Both are sons of Late Suryadeo Thakur Both are resident of village Kamtaul of Police Station Kamtaul Post Office Kamtaul District Darbhanga ……………….. Defendant 4th Party………. Respondent 4th Party. 9. Sri Kaushlendra Thakur 10. Sri Shailendra Thakur Both are sons of Late Chandra Shekhar Thakur 11. Sri Ram Pukar Thakur, Son of Late Kapileshwar Thakur 9 to 11 are residents of village Kamtaul of Police Station Kamtaul Post Office Kamtaul District Darbhanga. …………. Defendant 5th Party……… Respondent 5th Party. ---------------------------------- 11 30/8/2011 Heard Sri Bishwanath Prasad Singh, learned senior counsel appearing on behalf of the defendants 2nd set/appellants and Sri Shashi Shekhar Dwivedi, learned senior counsel, who appeared on behalf of plaintiffs/respondent 1st set. None appeared on behalf of remaining respondents. The present appeal has been preferred under Order 2 XLIII Rule 1(r) of the Code of Civil Procedure against an order dated 8/7/2010 passed by Sub-Judge I, Darbhanga, in Title Suit No. 35 of 2008, whereby the learned court below has rejected the injunction petition filed on behalf of the defendants 2nd set/appellants for restraining the plaintiffs/respondent 1st set from disturbing in repairing the suit property i.e. house. Short fact of the case is that the plaintiffs/respondent 1st set filed a suit vide Title Suit No. 35 of 2008 in the court below for the following reliefs:- a) To declare the land/property mentioned in Schedule -I as exclusive property of the plaintiffs. b) For an adjudication to pass a decree declaring Schedule –I of the plaint as exclusive property of the plaintiffs and to declare defendant 1st & 2nd set as unauthorized occupants of the suit premises. c) For a decree that the suit property be vacated by defendants 1 to 3. d) For a declaration that the sale deed dated 20.10.2006 executed by defendant no. 1 in favour of defendants 2 & 3 (appellants) as in-operative and void ab initio. e) For a decree for permanent injunction restraining defendants 1 to 3 from interfering with the peaceful possession of the plaintiffs over the suit property. f) For a declaration that entry made in record of Revisional Survey in respect of the suit land as incorrect besides 3 other reliefs. During the pendency of the suit the defendant 2nd set/ appellants who claims to be the purchaser of the suit property through registered sale deed from defendant no. 1/respondent no. 3, keeping in view dilapidated condition of the suit premises/house filed an application under Order XXXIX Rule 1 & 2 with a prayer to restrain the plaintiffs from interfering with the repairing of the suit premises which was initiated by defendant 2nd set / appellants. It was pleaded that the condition of the building in question had deteriorated and required immediate repair work and while they wanted to get the repair work done and called labourer and mason the plaintiffs forcefully forbidded them to execute the repairing work and as such petition for ad interim injunction was filed. After hearing the parties the learned court below by the impugned order has rejected the petition filed by the appellants under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure. Sri Bishwanath Prasad Singh, learned senior counsel appearing on behalf of the appellants at the very outset has argued that the appellants had purchased the suit premises through a valid registered sale deed which was executed by the respondent no. 3 (defendant no. 1 in the court below). It was submitted that respondent no. 3 was real title holder of the suit premises and since the vendor was real title owner of the premises in question and was in possession since several decades the appellants 4 purchased the suit premises through a registered sale deed. In the Survey record also name of the transferee was subsequently recorded. It was submitted that by the Court below a Pleader Commissioner was also appointed and his report was noticed by the court below, wherein, two facts were categorically mentioned i.e. the appellants were in possession and occupation of the premises in question and secondly, the premises was in dilapidated condition which required immediate repairing work. Sri Singh has argued that only with a view to create unnecessary trouble to the appellants the suit in question was filed by the plaintiffs without any title or possession over the land in question. It was further submitted that the plaintiffs are willing to see the entire premises collapsed only with a view to create hardship to the appellants who are in occupation and possession of the premises in question. It was submitted that the learned court below despite noticing every fact, erroneously has rejected the petition filed by the appellants (defendant nos. 2 & 3). Sri Shashi Shekhar Dwivedi, learned senior counsel for the respondent 1st set i.e. respondent nos. 1 & 2, has vehemently opposed the prayer of the appellants. At the very outset it was argued by Sri Dwivedi that the appellants had got a sham sale deed in connivance with the respondent no. 3 (defendant no. 1). It was submitted that the defendant no. 1 was not having any right or title over the suit premises. It was argued that the defendant no. 1 was only in permissible occupation of the premises in question since 5 father of respondent 1st set had permitted her to occupy the premises and she was not having any authority to execute the sale deed. It was further submitted that the respondent firstly filed a petition for correction in the Survey record under Section 106 of the Transfer of Properties Act. Subsequently, the respondent 1st set came to know about the execution of registered sale deed in respect of the suit premises and immediately thereafter they filed suit for declaration of their title and also for declaring the said sale deed as void ab initio. It was argued that since the court below was prima facie satisfied that the appellants (defendant 2nd set) were not having a prima facie case nor balance of convenience was in their favour and also no irreparable loss was going to be caused to the appellants in view of non-granting of injunction, the learned court below has rightly rejected the same. Sri Dwivedi has heavily relied on averment made in paragraph no. 8 of the written statement filed on behalf of respondent no. 3 (defendant no. 1) and paragraph no. 25 of the written statement filed on behalf of the appellants (defendant 2nd set) before the court below. The Respondents 1st set while filing counter affidavits have brought on record written statement filed by respondent no. 3 (defendant no. 1) and the appellants (defendant nos. 2 & 3) as Annexures- ‘A’ & ‘B’ to the counter affidavit filed on behalf of the plaintiffs/respondent 1st set on 4/8/2011. For just decision of the case it would be appropriate to 6 quote paragraph no. 25 of written statement filed by respondent no. 3 (defendant no. 1) and paragraph no. 8 of written statement filed on behalf of appellants (defendant nos. 2 & 3) before the court below which are as follows:- “25. That the statements contained in paragraph No. 30 and 31 is also utterly false. Defendant No. 1 executed the sale deed dated 20.10.2006 in favour of defendant Nos. 2 and 3 for consideration in the capacity of bonafide and absolute owner of the above house not only on the basis of the entry in the R.S. Khatian with respect to plot No. 4382 and 4385. The fact is that previously defendant No. 1 was a school teacher as even admitted by the plaintiffs in their pleading and mother of defendant No. 2 is still a teacher in the Girls High School, Kamtaul and thus both being lady teachers in the village i.e. Kamtaul had developed intimacy with each other. The defendant No. 1 even used to take money from her from time to time. However the sale deed aforesaid was executed by defendant No. 1 to meet the expenses of her medical treatment which is a legal necessity and the vendees were put in possession of the house after the execution and registration of the sale deed in question and they have been coming in continuous possession of the same.” “ 8. That the defendant No. 3 was also told by defendant No. 1 that the plaintiffs used to remain silent and polite when Late Sahdeo Thakur was in service in Kamtaul 7 High School with good health and being very popular among the teachers and students besides the villagers of Kamtaul and other neighbouring villages and most of their wards were the students of the said School. As aforesaid Sahdeo Thakur grew older and became aged person, his Health began to deteriorate and then the plaintiffs and their associates were emboldened in their mischief towards defendant No. 1 who was solitary surviving member of the branch of Jhingur Thakur. The defendant No. 1 told these petitioners (these defdts). The plaintiffs’ greedy eye fell upon the property of defendant No. 1 including also the schedule – I property for which they subjected her to utter mental torture and attrocity.” On the aforesaid stand taken by the appellants and respondent no. 3 it was submitted by Sri Dwivedi that reason described by both the parties for executing sale deed was contradictory and as such it was submitted by Sri Dwivedi that the appellants have not taken fair stand and as such the court below has rightly not exercised equitable jurisdiction in their favour and rightly rejected the petition. In support of his submission Sri Dwivedi has referred to AIR 1995 SC 2372 (M/s. Gujarat Bottling Co. Ltd. & Ors. Vs Coca Cola Company & Ors.). It was submitted that while exercising equitable jurisdiction the court is required to see as to whether the party claiming relief has come with clean hand or not. Accordingly, it has been prayed to dismiss the present appeal since 8 there is no merit nor the court below has committed any error. Besides hearing learned counsel for the parties I have also perused the materials available on record. From written statement filed on behalf of respondent no. 3 (defendant no. 1) i.e. Annexure –‘A’ to the counter affidavit filed by the plaintiffs/ respondent 1st set, it is evident that the defendant no. 1 had taken a specific plea that her husband Late Ram Bhajan Thakur was from the same stock of genealogy which was of plaintiffs, defendants 3rd party and 5th parties. The respondent no. 3 (defendant no. 1) had further pleaded that partition had taken place about more than seventy years back and Schedule –I properties had fallen in the share of her father-in-law, namely Late Jhingur Thakur, and after the death of her husband which occurred in 1945 and death of brother of her husband, namely Sahdeo Thakur, in 1987 the respondent no. 3 (defendant no. 1) became title holder of the said premises. It has further been asserted that she was continuing in possession of the said premises since long till the date of execution of the sale deed in the year 2006, and thereafter, possession was given to the appellants (defendant nos. 2 & 3). So far as question of possession over the suit premises is concerned, it was not disputed by the plaintiffs/respondent 1st set. Even from the impugned order it is evident that one Advocate Commissioner was appointed before any evidence and he submitted an inspection report. As per report of Advocate Commissioner the disputed 9 house was in dilapidated condition. So far as contradiction in written statement of appellants and respondent no. 3 as asserted by Sri Dwivedi, learned senior counsel for the respondent 1st set the Court is of the opinion that such facts are not sufficient for drawing an inference that the appellants have not come with clean hand and as such case relied upon by Sri Dwivedi has got no relevance in peculiar facts and circumstances of the present case. Keeping in view the fact that the appellants have got the suit premises through registered sale deed, they are in actual possession over the same and also the fact that the premises was in dilapidated condition, the court is of the opinion that it was equitable to allow the appellants for getting the repair of the suit premises done without any hindrance or interference. In view of the facts and circumstances, the order impugned is hereby set aside and the appellants are allowed to proceed with repairing work of the suit premises. Respondent 1st set are restrained from interfering or putting any hindrance in repairing work of the suit premises. With above observation and direction the appeal stands allowed. Praful (Rakesh Kumar, J.)