IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.803 of 2011 Sanjay Kumar Singh, Son of Late Rajendra Prasad Singh, Resident of Mohalla Kazipur / Naya Tola, P.S. Kadam Kuan, Town and District Patna. . . . . Defendant 3rd party/Appellant- Petitioner. Versus 1. Sri Bishram Sharma, Son of Late Mundra Sharma, Resident of N/19 Professor Colony, Chitragupta Nagar, P.S. Patrakar Nagar, Distt. Patna. 2. Sri Narendra Pratap Singh, Son of Late Sita Ram Singh, Resident of 1(C)/0 Rajandhari Singh, Path Dharhara Kothi, Naya Tola, P.S. Kadam Kuan, Distt. Patna. 3. Smt. Sneh Singh, W/O Shri Narednra Pratap Singh, Resident of 1(C)/0 Rajandhari Singh, Path Dharhara Kothi, Naya Tola, P.S. Kadam Kuan, Distt. Patna. 4. The Manager, Union Bank of India, Branch Fraser Road, P.S. Gandhi Maidan Town and Distt. Patna. 5. Mithu, son of Late Brahmdeo Sinha, resident of Kazipur Naya Tola , P.S. Kadam 6. Sanjay Kumar, Son of Late Rajendra Pd. Singh, Resident of Kazipur Naya Tola, P.S. Kadam Kuan, Distt. Patna Kuan, Distt. Patna 7. Secretary, Bank of Bihar Co-Operative House Construction Society Ltd. Bankmen Colony, Chitragupta Nagar, P.S. Patrakar Nagar, Distt. Patna. . . . . . Respondents. With CWJC No.12647 of 2011 Sri Bishram Sharma, Son of Late Mundra Sharma, Resident of N/19 Professor Colony, Chitragupta Nagar, P.S. Patrakar Nagar, Distt. Patna. . . . . . Petitioner. Versus 1. Sri Narendra Pratap Singh, Son of Late Sita Ram Singh, Resident of 1(C)/0 Rajandhari Singh Path, Dharhara Kothi, Naya Tola, P.S. Kadam Kuan, Distt. Patna. 2. Smt. Sneh Singh, W/O Shri Narednra Pratap Singh, Resident of 1(C)/0 Rajandhari Singh Path, Dharhara Kothi, Naya Tola, P.S. Kadam Kuan, Distt. Patna. 3. The Manager, Union Bank of India, Branch Fraser Road, P.S. Gandhi Maidan Town and Distt. Patna. 4. Mithu, son of Late Brahmdeo Sinha, resident of Kazipur Naya Tola, P.S. Kadam Kuan, Distt. Patna 5. Sanjay Kumar, Son of Late Rajendra Pd. Singh, Resident of Kazipur Naya Tola, P.S. Kadam Kuan, Distt. Patna. 6. Sanjay Kumar Singh, Son of Late Rajendra Pd. Singh, Resident of Kazipur Naya Tola, P.S. Kadam Kuan, Distt. Patna 7. Secretary, Bank of Bihar Co-Operative House Construction Society Ltd. Bankmen Colony, Chitragupta Nagar, P.S. Patrakar Nagar, Distt. Patna. . . . . . . Respondents. ----------- 6/ 23.08.2011 C.W.J.C. No. 803 of 2001 and C.W.J.C. No. 12647 of 2011 are taken up together, as the issues involved and challenge is too common. 2. In C.W.J.C. No.803 of 2011 Sanjay Kumar Singh, 2 who is defendant no.7 in Title Suit no. 444 of 2006 is the petitioner. In C.W.J.C. No.12647 of 2011 Bishram Sharma, the plaintiff of Title Suit no.444 of 2006 is the petitioner. 3. Both the writ application have been filed against the order dated 24.09.2010 passed by Additional District Judge-IV, Patna in Misc. Appeal No.01 of 2010 affirming the refusal of prayer of injunction by Sub-Judge-IV, Patna in Title Suit no. 444 of 2006 vide order dated 04.01.2010. 4. I take up C.W.J.C. no.803 of 2011, as the lead case (Sanjay Kumar Singh Vs. Bishram Sharma) The respondent no.1, Bishram Sharma, of C.W.J.C. No. 803 of 2011 filed Title suit no.444 of 2006 against respondent no.2 (Narendra Pratap Singh, defendant no.1) and other defendants for declaration of right, title and interest over suit land including Co-operative plot no. B/5 carved out of survey plot no. 665 (part), khata no. 151, tauzi no.227, thana no.9, situated in Mauza Sadikpur Jogi, now Chitragupt Nagar, Munna Chak, P.S. Patrakar Nagar, District- Patna. The plaintiff- respondent no.1 further prayed for declaration that the mortgage / money decree in title mortgage suit no. 306 of 1990 dated 16.08.2000 of the court of Sub-Judge-IV, Patna and the auction sale deed dated 12.09.2002 have been obtained fraudulently and are null and void. He also prayed for restraining the respondent nos.2 and 3 by order of temporary injunction from going over the suit land and interfering with the possession and alienating the same. 3 5. The defendant No.7, who is petitioner in writ application, appeared in the suit and filed petition under Order VIII Rule 6A of C.P.C. seeking the following reliefs by way of counter claim, which in short is as follows: (i) To declare that the petitioner has got right, title and possession over the suit property. (ii) To declare that mortgage / money decree in Title Money Suit no. 306 of 1990 of Sub-Judge-IV, Patna dated 18.06.2000 have been obtained fraudulently and to further declare that auction sale deed dated 12.09.2002 and delivery of possession dated 07.09.2003 in Execution case no. 03 of 2001 are null and void. It was further prayed that plaintiff may be directed to deliver the possession of Schedule B premise to him. 6. On 13.10.2009, the petitioner / defendant no.7 filed a petition under Order 39 Rules 1 and 2 read with Section 151 of the C.P.C. praying to restrain both the plaintiff and defendant nos. 1 and 2 not to alienate or make construction on the plot no.B/5 or to change its physical feature. 7. The petitioner’s case is that Bihar Employees Co- operative House construction Society Ltd., Patna allotted society plot no.B/5, area 2928 sq feet by registered deed to Brahamdeo Sinha, grand-father of the petitioner. Late Brahamdeo Sinha executed a Will in respect of the plot in favour of petitioner on 09.07.1975. Late Brahamdeo Sinha in confidence handed over original deed to one Laxman Sharma allottee of plot no. B/1 for taking steps before the cooperative society to mutate the name of 4 the petitioner in his place. He submits that Laxman Sharma instead of getting the land transferred in the name of the petitioner, transferred it in the name of Amreesh Kumar, son of Laxman Sharma, who in turn transferred the same to Gyanesh Pratap Singh, son of the respondent no.2. All these transfers were made mere paper transactions done behind the back of the petitioner. On request of Bishram Sharma, the petitioner let out some portion with Asbestos shed of plot B/5 on rent to him. 8. The petitioner alleges that defendant no.1 Narendra Pratap Singh (respondent no.2 in C.W.J.C. No.803 of 2011) in collusion with the plaintiff is destroying the Asbestos shed and trying to construct a marketing complex by merging plot no.B/5 with B/1. 9. The petitioner’s further case is that defendant no.2 was running a business under the name and style of M/s Achmechen Agencies in the partnership with his wife and sons. The defendant no.2 in collusion with Laxman Sharma took loan from Union Bank of India by pledging the original registered deed of plot no. B/5 in 1983, which was registered in the name of his grand-father. In the mortgage deed pledged to the Bank, Brahamdeo Sinha, grand-father of the petitioner, was shown as one of the guarantors, though he was dead and could not have any interest in the company. As the loan of the Bank was not repaid, it filed money suit no.13 of 1986 which was converted into Title Mortgage suit no.306 of 1990. In the above suit Brahamdeo sinha was shown as one of the defendants though he 5 died in the year 1976. The suit was decreed in the year 2000 and the plot no.B/5 was auction sold in Execution case no.3 of 2003, in which a fake delivery of possession was handed over to respondent no.2 Narendra Pratap Singh. The petitioner submits that respondent no.2, Narendra Pratap Singh got transferred himself as plaintiff and later got amendment in the plaint by substituting his widow Chandra Jyoti Devi in place of her husband, Brahamdeo Sinha, in 09.03.1998. The petitioner stated that even Chandra Jyoti Devi had died on 16.02.1997. 10. On the other hand, the case of Respondent no.2 (Narendra Pratap Singh) is that he purchased plot no.B/5 in auction sale and it was he who repaid the substantial part of Bank loans, in which Brahamdeo Sinha was also a guarantor. He denies that he was in collusion with plaintiff. He submits that he has already done some constructions and made heavy investments. He submits that the petitioner all these time did not prefer any suit for declaration of title, though the auction sale and delivery of possession took place in the year 2003 itself. 11. On the other hand, both plaintiff-respondent no.1 and petitioner state that respondent no.2 had fraudulently purchased the suit land in auction sale. 12. The trial court rejected the petition of the defendant no.7 for grant of injunction. The petitioner filed Misc. Appeal against the refusal of injunction which too was rejected. The two courts while rejecting the injunction petition noticed that the ‘WILL’ said to be executed by Brahamdeo Narayan 6 Sinha in favour of petitioner has not been probated. On the other hand, the defendant no.2 got delivery of possession in auction purchase in execution case no.03 of 2001 in 2003. Both the courts have found that the petitioner was not in possession and as such he did not have prima facie case for grant of injunction. On the other hand, plaintiff Bishram Sharma has brought a case that Chandra Jyoti Devi, wife of Brahamdeo Narayan Sinha, transferred the land in his favour by registered sale deed dated 28.02.1992. The trial court also observed that so long as mortgage decree is not set aside, it would be difficult to presume that the same was fraudulently obtained. 13. The petitioner has assailed the order of the trial court as well as appellate court refusing grant of injunction. The petitioner’s case is that refusal of injunction would result in construction of multi-storied complex and alienation of proprietors and creation of third party right. Even if the petitioner succeeds in the suit, it would have to file money suit to recover his possession. In support of his submissions’, learned counsel for the petitioner has relied upon decision in case of Maharwal Khewaji Trust (Regd) Vs. Baldev Dass, reported in A.I.R. 2005 SC 104. The petitioner submits that only in exception cases, changes in status quo of property would be permissible. 14. The petitioner submits that an injunction petition is fully maintainable even on behalf of the defendant whose counter claim has been allowed under Order VIII Rule 6 A of 7 the C.P.C. In support of his submission, learned counsel has relied upon decision in case of Jay Mohan Chawla Vs. Dera Radhaswamy, reported in (1996) 4 SCC 699. The petitioner asserts that his grand-father died in the year 1976 and as such the decree in the Mortgage Suit no. 306 of 1998 would be a nullity. He states that defendant no.2 in his written statement in Mortgage Suit admitted that his grand father died in the year 1976 and his wife Chandra Jyoti Devi died on 16.02.1997. On this basis, he argues that his grand father would not be alive to pledge his registered deed of allotment of plot no. B/105 in the year 1983 and decree passed in Money Suit no.306 of 1990 in the year 2000 against a dead person. 15. On the other hand, counsel for the respondent no.2 submits that he is in possession of the plot and has even made constructions and even as per petitioner’s case he would not be in possession of the suit land. His main case is that he has auction purchased the suit land in execution case no.03 of 2001 and until the decree in Title Mortgage Suit no. 306 of 1998 and auction sale are not set aside, the balance of convenience and prima facie case would lie in his favour for refusal of injunction. 16. I have heard the learned counsel for the petitioner, respondent no.1 and respondent no.2. There is no dispute to the fact that the suit land was settled in favour of Barhamdeo Sinha by Bank of Bihar employees Co-operative House Construction Society Limited, Patna and the petitioner is his grand son. Late Brahamdeo Sinha handed over the settlement deed to one 8 Laxman Sharma, owner of neighbouring plot no.B-1 for getting the same transferred and mutated in the name of the petitioner, which did not happen. Even a ‘Will’ claimed by petitioner to be executed in respect of the suit plot in his favour has admittedly not been Probated. The deed of plot no. B-5 was pledged to Union Bank of India for seeking loan, in which Brahamdeo Sinha is one of the guarantors. The case of the petitioner is that Brahadeo Sinha died long back in the year 1976 and further more, there was no occasion for him to take loan on behalf of M/s Achmechen Agencies of which defendant / respondent no.2 Narendra Pratap Singh and others were partner. The Bank filed Money suit no.13 of 1986, which was subsequently converted into mortgage suit no. 306 of 1990. The petitioner’s case is that his grand father was wrongly made a party, as he was no more alive in the year 1986. The fact remains that the suit was decreed and plot no. B/5 was put on auction sale, which was purchased by respondent no.2. Delivery of possession was also made through the process of court in favour of respondent no.2. 17. One Bishram Sharma, writ petitioner of C.W.J.C. No. 803 of 2011 claims to have purchased the suit land from one Chandra Jyoti, widow of Brahamdeo Sinha in the year 1982, as such he has right and title over the plot in question. He brought the instant Title Suit for setting aside the ex-parte decree in the title mortgage suit no. 306 of 1990 and the auction sale in favour of respondent no.2. The petitioner had argued that respondent no.2 fraudulently secured decree in Title Money Suit no. 306 of 9 1990. The petitioner has referred to case of S. P. Chengalvaraya Naidu (Dead) by L.R’s. Vs. Jagannath (Dead) by L.R’s. & Ors., reported in 1994 (1) BLJR 216, wherein the Hon’ble Apex Court observed that preliminary decree can be challenged in collateral proceedings as well as preparation of final decree, if the same has been obtained by fraud. 18. In the instant case whether the auction sale was fraudulent taken by respondent no.2 or whether the decree in Title Mortgage suit no. 306 of 1990 was obtained by playing fraud is subject matter of dispute in Title Suit no. 444 of 2006 filed by respondent no.1, in which petitioner is defendant no.7. The petitioner did not file any suit either challenging the decree in the title mortgage suit no. 306 of 1990 nor the auction sale nor the delivery of possession given to defendant no.2 in the year 2003. Only when defendant no.1 filed the instant title suit in the year 2006, the petitioner woke up and filed counter claim staking his own title to the plot in question. The auction sale and the delivery of possession has been given to respondent no.2 through the process of court. Both the courts have held that respondent no.2 is in possession of the suit land and prima faice case is in his favour. The courts have observed that it is yet to be established and proved that the decree passed in Title Mortgage suit no. 306 of 1990 and the auction sale and consequent delivery of possession to respondent no.2 was secured fraudulently. The Hon’ble Apex Court in case of Surya Dev Rai Vs. Ram Chandra Rai & Ors, reported in A.I.R. 2003 SC 3044: 10 (2003) 6 SCC 675 observed that supervisory jurisdiction can be invoked for correcting grave injustice or where gross failure of justice has been occasioned thereby. Sub paragraph 4 of paragraph 38 is quoted herein below: “38. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” 19. Further more, in case of the Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & Ano. Vs. Ajit Prasad Tarway, Manager (Purchase and Stores), reported in AIR 1973 SC 76, the Hon’ble Apex Court observed that scope of interference on point of interim stay is very narrow when there is concurrent finding of facts. The two courts have rejected the petition of the petitioner for injunction restraining the respondents either from making construction and alienating the same. I too also find that petitioners have not got a prima facie case and as such uphold the order of both the courts rejecting the prayer of the petitioner to stay the constructions. But in order to avoid multiplicity of case, defendants are 11 restrained from either alienating or creating 3rd party right in respect of the premises and constructions being raised on it. 20. In the result, both the writ applications are dismissed with the observation aforesaid. Uday/ (Samarendra Pratap Singh, J.)