\-;- \: IN THE HIGH COURT OF JUDICATURE At! BILASPUR MISC. APPEAL N0. OF 2006 APPELLANT: Ji:Defendant) Reliance Infocom Liraited, a company duly incorporated under the relevant provisions of Companies Act, 1956, having its Head Office at Block No.-GF-l, Village Meghpar Padana, Taluka Lalpur, District Jamnagar (Gujarat) 369 280 and inter-alia amongst other offices a Office at Millennium Plaza, Bfehind Indian Coffee Hq'use, Raipur (C.G.) vs ../<ae w 1 .•./''" <^~L » RESPONDENTS; , laintiffs) ^^S t ^ '.» ^y^^*./ '^=_ '-^ : '.^t-^,^ 1. Master Sunny, aged about 10 years, son of Kartikrara Yadav, minor. 2^-Master Bobby, aged about 8 years, son of Kartikram Yadav, Minor. Both Minors through their •natural guardian father Shri Kartikram Yadav, aged about 36 years, son of Bistham Yadav, resident of Ward No.ll, Near Mahamai Talab, Mahasamund. 3-^Master Gopi, aged about 10 ^ years, son of Punuram Yadav, Minor through his natural guardian father Shri Punuram Yadav, aged 40 years, son of Ramadhi Yadav, resident of Ward No.IO, Near Maldhakka, Dr. Zakir Hussain Ward, Mahasamund. APPEAL UNDER ORDER 43 RULE-l(r) OF THE CODE OF CIVIL PROCEDURE, 1908 'tJJiT'TI /~<<T,TT1 ',<~l!< •^JST-- 1 uii^AaruK. VRf IUS APPEAL N0.536 OF 2006 Reliance Infocom Limited Master Sunny and others 171? Postfor /2-6-2006 Sd/- DhirendraMishra Judge COURT OF CHHATTISGARH AT T1 TtTT TSTT iM u.53( APPE.LLANT Reliance Infocom Limited versus RESPQNDENTS (Plaintiffs) Master Sunnv and others Present : Mr. B.P.Sharma, counsel for the appeliant. Mr. R.S.Marhas, counsel with Shri R.K.Aarawal, Advocate fbr the respondents. on /2- -6-2006) The appellant has preferred this miscellaaeous civii appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure against the order dated 30-3-2006 passed by leamed Ist Additiona! Distriet Judge, Mahasamund in Civil SuitNo.l-A'2006. bv which the Ucation under Order 39 Rules 1 and 2 of the Code of Civil Procedure preferred by the respondents - piaintiffs has been allowed and the application for temporar.' injunction preten-ed by the appellant —T\ 2. Af^Yt li' s s Ibe a to as per II ial Court. 3. Origmally, Kartikram Yadav and Punuram Yadav filed a suit for perpetual injunction and declaration tliat the sale-deed executed by Ashok Kumar and Rajkumar Manglani in favour of the defendaiit and subsequent rectification-deed ofthe above sale-deed be declared illegal and void. However, after hearing the argumeats of the parties on 29-3-2006, the maner was posted for order for 30-3- 2006. Before the order could be passed, an application for amendment in the plaint along with four documents was filed by the plaintiffs and the same was allovved by tl-ie iearned Additional District Judge on the ground that the iocal counsel appeariag on behalf of the defendant did not object the above applicatioa. By the above application, the names of the present plaintiffs were substituted in place ofthe original plaintifFs. 4. The plaintiffs filed the above civil suit vvith the pieading that thev are the residents of Mahasamund. Their chiidren, i.e.. the present? plamtiffs are students of Primary School, Ganjpara. The defendant purchased the suit laad bearing Khasra No. 1205/2 area 4109 Sq.Ft. through rcgistered sale-deed dated 23-10-2004 from its owner Ashok Kumar and Raikumar NIanglani. !ubsequently, a correction-deed dated 8-7-2005 was got registered and as per the said correctioB, the description of the land was given as KhasraNo. 1205/1 area 3780 Sq.Ft. After purchasing the larid, the defendant is erecting a tower. However, the tower is being erected over Khasra No.1198 and 1199, which is away from the land purchased by the defendant and as such the defendant has no legal right to erect the said tower and its status is tnat of trespasser. Tb.< land in question, vvhere the tower is being erected, is used by the students of the Primar}.' School, Ganjpara as a playground and it is centrally situated in the town. The vendors of the defendant aad no traasferable right or title over the suit land and, therefore, the sale- deed executed by the said Ashok Kumar and Rajkumar Manglaai in favour ofthe detendant and subsequent correction-deed.be declared illegal and void and a decree of perpetual injunction be passed against the defendant restraining it from erecting the tower over the suit laad. The plaiatiffs also filed an application for temporary injunction and an application fof exemption from paying Court-Fees. Afier filing the suit, the plaintiffs prayed for time for filing certain documents m support of their application for exemption fi-om payment of Court- Fees. The Court, ultimately, after hearing the plaintiffs, called for a report from the Collector, NIahasamund on this application. Since no report was submitted by the Collector, the application for exemption fi-om payment of Court-Fees was allowed and a uotice was directed to be issued to the defendant. 5, The defendant appeared before tfe trial Court and file s'.t^^ ;u various applications including the application for temporaty injunction against the plaintiffs praying &r restraimng the plaintitTs froiii interfering with the possession ofthe defendant. The case ofthe defeiidant before the trial Court was that the civii suit filed on behalf of the plaintiffs is not maintainable, as the suit in the present foriri relates to public nuisances and other wrongful acts affecting the public aad as per Section 91 of the Code of CiviS Procedure, it may be instituted either by the Advocate General or with the leave of tfae Court. Since no leave has been prayed &r, the surt is not maiutainable and the saine is liable to bs dismissed at 'tlie outset. No Court-Fees has beeu paid and ths application fbr e;iemption from paymerrt of /^^- j T^ T'Z..- •^ouri-rees tias oeen auowed wiTiiout conductmg any enquiry. itii; plaintifis have prayed for canceliation of the registered sale-deed in iavour of the defendant. However, they were neither parties to the said instrumeat nor they have aay right under the said document and, therefore, they could not seek cancellation of the sale-deed. It was also submitted that before filing the civil suit, a writ petition bearing No.5802;2005 was filed by one Tejprakash Chandrakar for the siniilar reliefand the same was dismissed vide order dated 30-01-2006 and the instaiit civil suit has been filed at the instance of the said writ petitioners or some busybody. The suit is also not mamtamable for non-joinder ofthe necessary parties as the executants ofthe sale-deed have not been arrayed as defendants in the said suit. Apart from the above preSiminar>' objection, the defendant faas siibmitted that it has purchased the piece of land through registered sale-deed for a consideration of Rs.8,22,000,'- (Rupees Eight Lakhs Twenty Two Thousand) from its recorded owners, who, in turn, had purchased the same from one Kapil Narayan vide sale-deed clated 24-4-1991. However, subsequently, when it learnt that the khasra number of tfae land, which it has purchased, BELS been wrongly mentioned, it applied for correction of the sale-deed. On its -application, the document was sent for investigation to the Inspector General (Registration) and, vvlio, after enquiiy, vide his order dated 7-7-2005, ordered for registration of the correction-deed. Revenue Authorities prepared Panchiiama and Nazari-Naksha ia presence of senior revenue officers ofthe District and from perusal ofthe Panchnama and Nazari-Naksha, it would be evident that the defendant is in possession ofthe suit land. It is farther submitted that before erecting the tower over the land in question, the necessaty approval was obtained from the Mumcipal 6. The Court be!ow, after hearing the parties on their applications for temporaty injunction, allowed the application for temporar}' injunction ofthe plaintiffs and dismissed the application of the detendant by recording a finding on the basis of original map of 1951-52, which is filed with the p3aint that the second demarcation dated 2-7-2005 is not in accordance with law and the position of the land bearing Khasra No. 1205/1 cannot be situated as per demarcation in the pink coiour of Aiinexure A.-l and the land in question is a Govemment land and the Reveaue Authorities are deliberately describing the same as the land belonging to the defendant. Since the land in question is being used as a playground by fiie students of t'he Primary School, Ganjpara and it is also used for religious purposes, therefore, if the defendant is permitted to erect the tower over the Goverament land, in that case, -public at large shall sufier inconvenience, whereas the defendant can purchase a suitable land in the outskirts of Mahasamund and do its business and no irreparable injuty is likely to cause to the defendant, and on the above finding, the application for temporaiy injunction on behalf of tfae plaintiffs has been allowed and the defendant has been restrained from undertaking any construction over the suit land till the disposa! of the suit and accordingly the application for temporary injunction on behalf of the defendant has been rejected. /. Learned counsel for tiie appellant - defendant submits that in order to provide cellular phone facilities to the public at large in Mahasamund, the land in question was duly purchased by the defendant from its recorded owners after paying valuable consideration. The defendant has already commenced erectioii of the tower and because of the impugned order, it is sufferipg irreparable loss. On the other hand, the plaintiffs have no locus standi to fiie_the suit. The suit, in preseut form, is not maintainable. The application for amendment of tne plaint v»asallov/ed behind the back of the plaintiffs, as no concession, as mentioned in the order-sheet dated 30-3-2006, was given by the counsel for the defendant for allowing the application for amendment of the plaint, and by the said amendment, the original piaintiffs have been substituted by the preseat minor plaintiffs and the names of the original plaintiffs have been deleted. It is further submitted. that the detendant had also filed an application for temporary' injunction against the origmal plaintiffs, and in vievv of the application for temporaiy injunction on behalf of the detendant, fhe names ofthe original plaintiffs cannot be deleted. On the other hand, learned counsel for the respondents - plaintiffs, supporting the order ofthe temporary injunctioii passed in favour of the plaintiffs, submits that the names of tiie plaintiffs vvere substituted afler the application tbr amendment in tlus regard was allowed, as it was not opposed by the defendant aad, therefore, tlie defendant is now estopped fi-om challenging the above order at this stage. It is further submitted that the defendant is a renowned and influentia! company. The senior officers of the district administration have prepared a false demarcation report under the influence of the delendant. There is material discrepancy in tSie dsscription of the suit land, as is evident from the sale-deed executed by Kapil Narayan in favour ol Rajkumar Manglani and Ashok Kumar and subsequent sale- deed executed by Rajkumar Manglani aad Ashok Kumar in favour of the defendant. KhasraNo. 1205/1 is a Government and abadi laiid and as per Section 2(a) ofthe Chhattisgarh Land Revenue Code, an abadi land caiinot be used for aiw other than the residential purpose aad as such no tower could be erected thereoa. So far as the obiection regarding maintainability of the instant suit is concerned, it is submitted that procedural tault of Section 91 of the Code of Civil Procedure alone cannot disentitle tiie plaintiffs from filing the suit, as iio prejudice has been caused to the defendant and its mere irregularity cannot come in the way ofdispeiisation ofjustice. 9. I have heard learned couiisel for the parties and perused the docurnents amiexed with the memo of appeal and also the documents nled by the respondents. 10. From the pleadings of the respective parties and the documents filed by them, the dispute basically appears to be that of demarcation in question, whereas the detendant is relying upon the demarcation, Panchnama and Nazari-Naksha prepared by the Revenue Authorifies in the presence of the seiiior revenue ofEcers of tiie district, wherein the land in question is shown to be a land belonging to the defendant, which it has purchased fi'om its ersUvhile owners. The Court below, relymg upon the original map of 1951-52 fi!ed by the plaintifis, has finally arrived at the coiiclusion that the suit land cannot fomi part ofthe KhasraNo.1205 and the alleged demarcation report prepared by the Revenue Authorities is false and the same has been prepared under the influeace of the defendant. From perusal of the plaint itsell; it is not in dispute that the defendant purchased a part ofKhasraNo.1205 fi-om its erstwhile owners. Tae description ofthe lafid was subsequentiy amended by a deed of correction after due enquiry by the competent authorities. It is also not in dispute that afrer purchasiug the land in questiou, when the defendant starfed erection of a tower, c.ne Tejprakash Chandrakar fiied a writ petition raising identical dispiites and prayed for ad-iiiterim writ, however, the writ petition itself was disposed of by the High Court by recording a finding that a factual dispute exists between the parties and the same cannot be looked into in proceeding under Article 226/227 of tne Coiistitution oflndia, as the same requires recording ofevidence. It is also not in dispute tliat after purchasing the suit land, the defendant got its name mutated and took over possession ofthe suit land and has started constmction ofa tower over the suit land. From perusal ofthe impugned order, it appears that the Court below, only on the basis of the documents/map filed by the respective parties, has arrived at the final conclusion that the land in question does not form part of Khasra No. 1205 and the same is a Government land. TSie above finding has been arrived at without affording an opportunity of leading evidence to the respective parties and the same canuot be upheld. The defendant has raised serious objection with respect to the ^; maintainability ofthe suit, which requires consideration. Thus, in the light of the admitted fact that the defendant, after purchasing the land in question from its recorded owners, has enterpd into possession and has started construction of a tower over the suit land. the finding of the trial Court that the plaintiffs have a prima fcicie case, cannot be upheld. Since the construction was already commenced, therefore, if the detendant is obstracted from mrther undertaking construction, irreparable injuiy to the defendant canaot be mlsd-out. Ou the other hand, ultimately, if it is found that the suit in guestion is maintaiaable and it is decreed, in that case, the defendant may be directed to remove the construction over the suit land and restore the suit land to its original condition, and flius, no in-eparabie loss is likely to cause to the plaintiffs. 11. In the result, the appeal is allowed. The impugned order of temporary injunction passed by the Court below iu favour of the plaintiffs, restraiaing the defendant aiid its employees, labourers from undertaking any constmction over the land marked as pink portion of tne map ofAnnexure A-l is hereby set aside and the app'ication for temporary injunction ofthe plaintiffs is dismissed. —l^—- - - Sd/- Dhirendra Mishra Judge