BENGAL AMBUJA HOUSING DEVELOPMENT LTD. versus PRAMILA SANFUI AND ORS.
[2015] 15 S.C.R. 428, Supreme Court of India, 2015
Outcome: Disposed off
Segment: Ratio
[2015] 15 S.C.R. 428 
A 
BENGAL AM BUJA HOUSING DEVELOPMENT LTD. 
B 
v. 
PRAMILASANFUIAND ORS. 
SEPTEMBER 18, 2015 
(Civil Appeal Nos. 7209-7210 of 2015) 
[T. S. THAKUR, V. GOPALA GOWDA AND 
R. BANUMATHI, JJ.] 
Code of Civil Procedure, 1908- 0. XXXIX, rr.1and2-
C Temporary or permanent injunction can be granted only 
against the parties to a suit- Intermediary right holder under 
the 1953 Act - Bar on jurisdiction of the Civil Court to deal 
with property of such intermediary -
Whether order of 
temporary injunction passed by the Subordinate Judge, in 
D respect of the suit property without impleading the vendors 
and the appellant Housing Board, which had acquired the 
right, title, interest upon the same can be enforced against 
them through thejurisdictional police as has been granted 
by the Subordinate Judge, though the sale deed in favour of 
E the Board is not challenged by the plaintiffs-respondents and 
the said order can be enforced against the appellants through 
jurisdictional police - Whether the inclusion of the property 
of the Housing Board to the suit instituted in the Civil Court 
by way of an amendment by the plaintiffs-respondents which. 
F property was conferred upon the legal heirs of late 'G' as 
intermediary right holder u/s. 6 of the 1953 Act and the 
institution of suit for partition by the contesting respondents 
is barred by the provisions of ss.57-B(2)(a), (b) and (c) of the 
Act of 1953 - Held: The plaintiffs-respondents did not have 
G any
right to get the said land included as part of the suit 
schedule properties for partition, and the Subordinate Judge 
erred in allowing the application to amend the suit schedule 
to include the property in question - The appellants were not 
parties to the suit, and the suit had abated as against late 
H 
428
BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v. 
429 
PRAM I LA SAN FU I AND ORS. 
'G' - The Subordinate Judge erred in passing order of A 
temporary injunction u/O.XXXIX, rr. 1 and 2 of CPC, in 
respect of the property in question after it was included to the 
suit schedule as order of temporary injunction can be granted 
against only the parties to the suit property- Further, the grant 
of police protection without impleading the appellants to the 
B 
original suit proceedings is also not legally permissible -
The original owner in the instant case, late 'G' was an 
intermediary in khas possession of the land in question in 
terms of s. 6 of the 1953 Act - Thus, the Subordinate Judge 
did not have the jurisdiction to entertain any suit with respect c 
to the said property, in light of the provision of s.57B (2)(a), 
(b) and (c) of the 1953 Act - Ex parte interim order of 
temporary injunction passed by the Subordinate Judge in 
respect of the property in question purchased from the legal 
heirs of the late 'G' who are declared as intermediaries u/s. 6 D 
of the 1953 Act and therefore the same are not binding on 
this appellant as it is not a party to the proceedings and the 
Civil Court did not have the jurisdiction to deal with the said 
property, as per s.57 B (2) (a), (b) and (c) of the 1953 Act-
Since the interim order of temporary injunction is not binding E 
on the appellant Housing Board and cannot be operated 
against them, therefore the question of enforcing the same
against the appellant Housing Board or its agents or any 
person claiming through it, through the jurisdictional police 
to help the plaintiffs-respondents as has been granted by F 
the Subordinate Judge at the request of the plaintiffs-
respondents, does not arise -Appeals of appellant Housing 
Board allowed - West Bengal Estates Acquisition, Act 1953 
-ss.57-B(2)(a),(b) and (c). 
West Bengal Government Employees (Food and 
G 
Supplies) Cooperative Housing Society Ltd. and 
Ors. v. Sulekha Pal (Dey) & Ors. (2003) 9 SCC 
253 : 2003 (3) SCR 626; Bengal Ambuja Housing 
Development Limited & Anr. .v. Pramila Sanfui & 
H
430 
SUPREME COURT REPORTS 
[2015] 15S.C.R. 
A 
Ors., Kumaran Silk Trade (P.) Ltd. v. Devendra & 
Ors. (2007) 12 sec 549 : 2001 (11) SCR 752; 
Shanker Motiram Nale v. Shiolalsing Gannusing 
Rajput (1994) 2 SCC 753; Vinod Kapoor v. State 
of Goa (2012) 12 SCC 378: 2012 (8) SCR 1089; 
B 
M.N Haider v. Kendriya Vidyalaya Sangathan 
(2004) 13 SCC 677; Ramana Dayaram Shetty v. 
The International Airport Authority of India AIR 
1979 SC 1628 : 1979 (3) SCR 1014; Akhil 
Bhartiya Upbhokta Congress v. State of Madhya 
C 
Pradesh (2011) 5 SCC 29: 2011 (5) SCR 77 -
referred to. 
D 
E 
F 
G 
H 
Case Law Reference 
2003 (3) SCR 626 
,·referred to 
Para4 
2007 (11) SCR 752 
referred to 
Para 9 
(1994) 2 sec 753 
referred to 
Para 10 
2012 (8) SCR 1089 
referred to 
Para 10 
(2004) 13 sec 677 
referred to 
Para 10 
1979 (3) SCR 1014. 
referred to 
Para 22 
2011 (5) SCR 77 
referred to 
Para 22 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 
7209-7210 of 2015 
From the Judgment and Order dated 21.11.2014 and 
19.12.2012 of the High Court of Calcutta in R.V.W. No. 78 of 
2013 and in C.O. No. 709of2010 
WITH 
C.A. Nos. 7211-7212 of 2015. 
Mukul Rohatgi, AG, Dushyant Dave, Jaideep Gupta, Sr. 
Advs., Sachin Patil, S. Sen, R. Sinha, S.S. Gupta, S. Ghosh, 
Shriram P. Pingle,Advs. for the Appellant.
BENGALAMBUJAHOUSING DEVELOPMENT LTD. v. 
431 
. PRAMILASANFUIANDORS. 
J. P. Gama, Sanjay Hegde, Sr. Advs., Vimal Chandra A 
S. Dave, Ms. Susniita Mahala, Mayan Prasad, Ms. Shashi 
Kiran, Gopal Pahari, Dipak Kumar Jena, Ms. Minakshi Ghose, 
P. Nayak, Abdul Alim, Siddhartha Chowdhury, S. K. 
Bhattacharjee, Ranjan Mukherjee, B.P. Yadav, Mrs. Sarla 
Chandra, P.K. Maitra, Hitesh Kumar Sharma, V. Shanil Kumar, 
B 
M.A. Chinnasamy, Bijan Kumar Ghosh,· Ujjwal Banerjee, 
U. Banerjee, Asit Kumar Rari, Ms. Ratna Banerjee, 
Rameshwar Prasad Goyal, Subhasish Bhowmick, 
Ms. Anamika, Kunal Malik, Ashok Kumar Juneja, Chand 
Qureshi, Kumud Lata Das, Advs. for the Respondents. 
c 
The Judgment of the Court was delivered by 
V. GOPALA GOWDA, J. 1. Leave granted in all the 
Special Leave Petitions. 
2. The present appeals, filed separately, arise from the D 
impugned judgment and order dated 21.11.2014 passed in 
R.V.W. No.78 of 2013 and judgment and final order dated 
19.12.2012 passed in C.O. No.709/2010 bythe High Court of 
judicature at Calcutta, whereby the High Court refu:..ed to 
interfere with the impugned judgments therein. The appeals E 
arising out of S.L.P. (C) Nos.5902-5903 of 2015 have been 
preferred by the Bengal Ambuja Housing Development Ltd., 
whereas the appeals arising out of S.L.P. (C) Nos. 5906-5907 
of 2015 have been preferred by the West Bengal Housing 
Board. Both sets of appeals are being disposed of by this 
F · 
common judgment. 
3. As the facts in both the appeals
are common, for the 
sake of convenience, we refer to the facts of the appeals 
arising out of S.L.P. (C) Nos. 5906-5907 of 2015, which are 
stated in brief hereunder: 
G 
The appellant, West Bengal Housing Board (hereinafter 
"the Housing Board") is a statutory body constituted under the 
West Bengal Housing Board Act, 1972 with the objective of 
providing affordable housing in the State of West Bengal. The H
432 
SUPREME COURT REPORTS 
[2015) 15 S.C.R. 
A 
appellant is the current owner of the suit property in question 
in the present appeals. The predecessor-in-interest of the 
appellant, late Gangadas Pal was the owner of suit land 
measuring 20.184 acres of land. A suit for partition being Title 
Suit No. 43 of 1956 was instituted in the land adjacent to the 
B said land among the co-owners namely, Sanfui, Naskar, 
Monda I and Sardar family in the year 1956 before the learned 
Civil Judge (Senior Division), Alipore, the said suit was 
renumbered subsequently as Title Suit No. 121 of 1962. 
Gang ad as Pal was not a party to the said suit at its inception. 
c He was impleaded as Defendant No. 54 vide order of the 
learned Trial Court dated 14.08.1957. Gangadas Pal died in 
June 1958. One Mr. Ranjit Kumar Ganguly was appointed as 
the Receiver over the said suit properties and he took 
possession of the entire suit properties on November 30, 1958. 
D After Gangadas Pal died, the defendant No.1 in the suit No. 
121 of 1962, filed an application before the learned 
. Subordinate Judge, Alipore, intimating that among others, 
defendant no. 54 (Gangadas Pal) had died during the 
pendency of the suit, following which the suit had abated 
E against them, as per the provisions of Order XXll, Rules 3 and 
4, Code of Civil Procedure, 1908. The learned Subordinate 
Judge, vide order and judgment dated 30.11.1973 dismissed 
the entire suit under Order XXI I of the Code of Civn Procedure,
1908 holding that the suit had abated as against the deceased 
F defendants (including Gangadas Pal) and the right to sue did 
not survive as against the other surviving defendants. The 
" learned Subordinate Judge held as under: 
"There is authority to hold that no formal order of 
abatement need be made as a suit or appeal 
G 
abates automatically if no application for 
substitution is made within the prescribed time, i.e. 
within ninety days from the date of death and not 
from the date of knowledge. In that view of the 
matter, the order of abatement as recorded above 
H
BENGALAMBUJAHOUSING DEVELOPMENT LTD. v. 
433 
PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.] 
by order no. 337, dated 15.9.73 was a mere 
A 
formality. Sub-Rule 3 of Rule 4 of Order 22 CPC 
provides that the suit shall abate as against the 
deceased defendant in case no application is made 
under Sub-Rule 1 within the time allowed by law. 
Abatement takes place by operation of law and it 
B 
is this crystal clear that the suit has abated against 
the deceased defendant nos. 9, 39, 54, 55, 57, 60, 
62, 63 in due course of law .... " 
Aggrieved by the same, the plaintiffs therein filed Title 
Appeal No. 117 of 1974 before the learned District Judge, C 
Alipore. The learned District Judge, vide order dated 
20.09.1977 held that the order passed by learned Subordinate 
Judge was improper and not justified, and remanded the 
matter back to be considered afresh. The learned Civil Judge 
(Sr. Divn.) after considering the matter afresh held that the D 
plaintiffs had not made out any sufficient ground for the delay 
in filing of the application and refused to condone the delay 
and rejected the application of the plaintiffs therein. The learned 
Civil Judge (Sr. Divn.) held as under: 
"It is an established principal of law that the suit 
abates on and from the date of death of a party to 
the suit. From the order no. 315 dated 28.02.73 it 
is seen that the petition giving the information of, 
the death of the defendants in question. The 
petitioners waited without any lawful exercise
upon 
4.4.73. On 4-.4.73 they asked for letter particulars 
on the grounds mentioned in the Petition. By order 
no. 329 dated 18.3. 73 the court directed the 
defendant no.1 to furnish particulars as regards the 
names and addresses of the deceased defendants 
nos. 9,39,40,54,55,57 ,60,62 and 63 by 11.6. 73. 
From order no. 330 dated 4.6.73, it is seen that the 
defendant no.1 complied wih the direction of the 
court, From all of these developments, it is palpably 
E 
F 
G 
H
434 
SUPREME COURT REPORTS 
[2015] 15 S.C.R. 
A 
clear that the petitioners were in the know of the 
death of the defendants in question right from 
28.2. 73. At any rate when all particulars were 
furnished to them on 11.6. 73, the petitioners ought 
to have filed the application for setting aside the 
B 
abatement at least within 60 days from the date of 
abatement or order of the dismissal in terms of 
provisions of articles 171 and 172 of the old 
Limitation Act. They filed the petition on 13.11. 73 
for the lapse of 90 days plus 60 days even the 
c 
period is calculated, from 11.6.73." 
This order of abatement has attained finality as no appeal has 
been preferred by the parties against the same. 
4. In the meanwhile, the land of late Gangadas Pal was 
0 
acquired by the State Government, and came to be vested in 
them, vide order dated 16.09.1971 passed in Big Raiyat Case 
No.5of1967. In 1991, the order of vesting was challenged by 
the heirs of Gangadas Pal, byway of a Writ Petition C.O. No. 
11731 (W) of 1991. The learned single judge allowed the Writ 
E Petition and quashed the order of vesting dated 16.09.1971. 
Aggrieved of the order passed in the above Writ Petition, the 
State Government preferred Writ Appeal before the Hon'ble 
Division Bench against the decision of the learned single judge. 
The learned Division Bench dismissed the appeal and affirmed 
F 
the decision of the learned single judge, vide judgment and 
order dated 18.04.1996. The State Government
then preferred 
Civil Appeal No. 442 of 1998 before this Court, which was 
dismissed vide judgment and order dated 16.04.2003 in the 
case of West Bengal Government Employees (Food and 
G Supplies) Cooperative Housing Society Ltd. and Ors. v. 
Sulekha Pal (Dey) & Ors. reported in (2003) 9 SCC 253, 
when this Court held as under: 
H 
"21. So far as the case on hand is concerned, it is 
seen from the materials on record that effective, 
•,
BENGALAMBU~A HOUSING DEVELOPMENT.LTD. v. 
PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.] 
actual and physical possession of the properties 
appears to have continued with the intermediary in 
question and subsequently in the possession of his 
heirs and the Collector/Revenue Officer could not 
be said to have either dispossessed them or taken 
over physical or khas possession of the estate and 
the rights comprised therein in the manner statutorily 
mandated and provided for under Section 10(2) of 
the Act and Rule 7 of the Rules made thereunder. 
The learned Single Judge and the Division Bench 
of the High court recorded concurrently that khas 
possession continued with the intermediary and 
after him his heirs and we find nothing contra 
concretely to disturb the same. The professed 
taking over of possession seems to be a mere entry 
on paper but not in conformity with the mandatory 
procedure necessarily to be observed before such 
possession could be lawfully carried out. We are 
not concerned with the internal controversy between 
the Cooperative Housing Society of its claim to have 
been given with possession pursuant to the 
agreement of sale since for the purposes of the Act, 
it is the dispossession by the Collector/Revenue 
Officer in the manner envisaged in the statutory 
provisions under the Rules made thereunder that 
alone could get legitimatised for determining the 
rights of parties. Consequently, the order of the 
learned Single Judge as well as the order of
the 
Division Bench, insofar as they sustained the right 
in the respondents herein to express their choice 
of retention, cannot be said to su~fer from any 
infirmity in law so as to call for our interference. As 
a matter of fact, it is seen from the materials placed 
on record that after the order of the learned Single 
Judge, on the respondents exercising their choice, 
an order dated 2.8.1994 came to be passed by 
435 
A 
B 
c 
D 
.E 
F 
G 
H
436 
SUPREME COURT REPORTS 
[2015) 15 S.C.R. 
A 
the Revenue Officer allowing retention of 25 acres 
of agricultural land, 10.16 acres of non-agricultural 
land and 0.06 acres of homestead land as per "B" 
Schedule to the said proceedings and declaring 
that 27 .95 acres of agricultural land and 0.14 acres 
B 
of homestead land as per details contained in the 
"C" Schedule to the said proceedings stood vested 
in the State. This order, which appears to have been 
made subject to the result of the appeal has to be 
construed in that manner and the rights of parties 
c 
thereunder could and ought to be only in terms of 
and subject to the modified order of the Division 
Bench and nothing more ........ The vesting is total 
and complete once Notification is issued under 
Section 4 and got published by the combined 
D 
operation of Sections 4 and 5 of the Act and what 
is secured under Section 6 is the right to hold on to 
the possession, subject to the limits prescribed in 
the statute by option for retention of the same before 
khas possession of the properties have been taken 
E 
over as envisaged under Section 10(3) of the Act." 
The ownership of the plot of land was thus retained by the legal 
heirs of Gangadas Pal as intermediaries as provided under 
Section 6 of the West Bengal Estates Acquisition, Act 1953. 
F 
5. On 08.06.2006, the plaintiff-respondents herein filed 
an application under Order XXXIX Rules 1 and 2, Code of 
Civil Procedure, 1908, in Title Suit No. 121 of
1962, seeking 
for grant of a temporary injunction restraining the parties from 
alienating, encumbering or creating third party interest on the 
G scheduled properties. The learned Subordinate Judge, Alipore 
vide order dated 16.06.2006, allowed the application for 
temporary injunction, and passed the purported consent order 
even though the legal heirs of late Gangadas Pal had not given 
their consent, directing the parties to maintain status quo with 
H respect to the suit properties, and restrained them from selling,
BENGALAMBUJAHQUSING DEVELOPMENT LTD. v. 
437 
PRAM I LA SAN FU I AND ORS. [V. GO PALA GOWDA, J.] 
transferring, alienating inter party or with any third party or in 
A 
any mannerwhatsoeverfrom changing the nature and character 
of the suit property till disposal of the suit. On 03.07 .2006, the 
learned Trial Court, at the instance of the plaintiffs-respondents 
directed the Officer in charge, Purba Jadavpur, Police Station 
to ensure compliance of the order dated 16.06.2006. On 
B 
07 .07 .2006, the learned Subordinate Judge, Alipore allowed 
the amendment application dated 28.01.2003, by which inter 
alia, the plot of land belonging to the heirs of Gangadas Pal 
was added to the suit schedule properties appended to the 
plaint. While passing the order, the learned Subordinate Judge C 
held as under: 
"On perusal of the instant applications under 
consideration and after hearing the submissions 
of the learned advocates court comes to the 
conclusion that the amendment is formal in nature 
D 
and would not change the nature and character of 
the suit, neither would it prejudice any of the parties. 
Besides, it is even observed by the Court that, the 
instant suit cannot proceed without amendment be 
allowed." 
E 
It is important to note at this stage that the heirs of late 
Gangadas Pal were not heard during the proceedings, as they 
were not parties to the suit. 
6. On 19.08.2008, the appellant Housing Board acquired 
F 
ownership of the property by way of five registered
conveyance 
deeds the title and possession of the said 20.184 acres of 
land from the successors-in-interest of the late Gangadas Pal. 
On 19.12.2009, one of the plaintiffs (respondents herein) filed 
a petition before the learned Subordinate Judge, Alipore, G 
praying that the Superintendent of Police, South 24 Paraganas 
·and the Officer in Charge of Purba Jadavpur be directed to 
ensure compliance with the orders of temporary injunction 
passed by the Trial Court on 16.06.2006 and 03.07.2006 in 
respect of the property in dispute. The learned Subordinate 
H
438 
SUPREME COURT REPORTS 
[2015] 15S.C.R. 
A Judge vide order dated 13.01.2010, directed the 
Superintendent of Police to see that the consent order of 
temporary injunction granted by the Civil Court in favour of the 
plaintiffs-respondents in the original suit in respect of the suit 
properties in dispute was maintained by the parties. Aggrieved 
B by the said order the Bengal Ambuja Housing Development 
Ltd. (appellant herein) filed an application, C.O. No. 709 of 
2010 before the Hon'ble High Court under Article 227 of the 
Constitution of India questioning the correctness of the same. 
The High Court, vide its judgment and order dated 19.12.2012 
c dismissed the same. The High Court held that the third party 
(appellant Housing Board) had purchased the suit property /is 
pendens, and that no permission was taken from the court for 
the-same. Thus, the provisions of Section 52 of the Transfer of 
Property Act, 1882 would govern the transaction. The High 
D Court, while dismissing the application fifed by the Bengal 
Ambuja Housing Development Ltd., held as under: 
"The present mater is confined to the 
implementation of an order of injunction passed on 
consent. As recorded above, upon hearing both the 
E 
parties, an order of status quo was passed 
directing the parties not to change the nature and 
character of the suit property. When the applicant 
tried to intervene in the said order of status quo, 
the steps for rendering police help for the learned 
F 
Receiver
was taken and I think since an order of 
status quo was passed in consent was prevailing, 
the learned Court was justified for giving necessary 
directions upon the concerned police authority to 
take appropriate steps for the preservation and 
G 
protection of the suit property and the Court was 
also competent to give directions to the police 
authority to render possible help s that the 
possession taken by the present Receiver, namely, 
Sri Ashoke Ray be maintained. 
H
BENGALAMBUJAHOUSING DEVELOPMENT LTD. v. 
PRAMILA SAN FU I AND ORS. [V. GOPALA GOWDA, J.] 
From the above facts, it is clear that the third-party/ 
petitioner herein had purchased the suit property 
tis pendens and that no permission was sought for 
from the Court to purchase the suit property. 
So, the principle of lis pendens as provided in 
Section 52 of the Transfer of Property Act shall 
govern the issue. 
The learned Trial judge is justified to pass the 
439 
A 
B 
impugned order. Record does not show that the 
C 
petitioners had obtained any permission from the 
Court to purchase a portion of the suit property. They 
had purchased a portion of the suit property at their 
own risk while the said suit was pending and the 
property was in the possession of the learned 
D 
Receiver." 
7. Aggrieved by the order, the appellant Bengal Ambuja 
Housing Development Ltd. filed an S.L.P. (C) No. 8049 of2013 
before this Court challenging the legality of the said order, which 
petition was dismissed as withdrawn, by granting liberty to file E 
the appropriate application before the High Court. The 
abovesaid appellant then filed a Review Application, R.V.W. 
No. 78 of 2013 before the High Court of Calcutta to review the 
judgment and order passed in C.O. No. 709 of 2010 urging 
various tenable grounds. The High Court by its judgment and 
F 
order dated 21.11.2014 has dismissed the Review 
Application. The High Court held that the grounds urged by 
the appellant in the Review
Petition did not warrant a review of 
its judgment dated 19.12.2012. The High Court further held 
that it must be considered that the judge who rendered the G 
judgment was no longer available with the Court and that the 
liberty that a judge has to correct himself upon his mistake 
being brought to his notice, is not available to another judge 
hearing the review and therefore the Review Petition was 
H
440 
SUPREME COURT REPORTS 
[2015) 15 S.C.R. 
A 
rejected by passing the order which is. also impugned in this 
appeal. Hence the present appeals were filed by the above 
appellants. 
8. We have heard the learned senior counsel for both 
the parties. On the basis of the factual evidence on record 
B 
produced before us, the circumstances of the case and also 
in the light of the rival legal contentions urged by the learned 
senior counsel for both the parties, we have broadly framed 
the following points which require our attention and 
c 
D 
E 
F 
G 
H 
consideration:-
1. Whether the appeals filed by the appellant Housing 
Board are maintainable in view of the fact that the earlier 
SLP filed by the appellant Bengal Ambuja Housing 
Development Ltd. was dismissed with liberty accorded 
to it to file appropriate petition before the High Court? 
2. Whether the order of temporary injunction dated 
16.06.2006 passed by the l(i)arned Subordinate Judge, 
Alipore, passed in respect of the suit property without 
impleading the vendors and the appellant Housing Board, 
which had acquired the right, title, interest upon the same 
can be enforced against them through the jurisdictional 
police as has been granted by the learned Subordinate 
Judge, Alipore, though the sale deed in favour of the 
Board is not challenged by the plaintiffs-respondents and 
the said order can be enforced against the appellants 
through jurisdictional police by an order dated 
13.01.2010 passed in the Title
Suit? 
3. Whether the inclusion of the property of the Housing 
Board to the suit instituted in the Civil Court by way of an 
amendment by the plaintiffs-respondents which property 
was conferred upon the legal heirs of late Gangadas Pal 
as intermediary right holder under Section 6 of the West 
Bengal Acquisition of Estates Act, 1953 and the institution 
of suit for partition by the contesting respondents is
BENGALAMBUJAHOUSING DEVELOPMENT LTD. v. 
441 
PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.] 
barred by the provisions of Sections 57 - B (2)(a), (b) A 
and (c) of the Act of 1953? 
4. What order? 
Answer to Point No. 1 
9. Mr. J.P. Cama, the learned senior counsel appearing 
B 
on behalf of some of the plaintiffs-respondents strongly made 
the submission that since the earlier SLP of the appellant-
Bengal Ambuja Housing Development Ltd. was dismissed as 
withdrawn by an order of this Court dated 13.02.2013 in the 
case of Bengal Ambuja Housing Development Limited & C 
Anr. v. Pramila Sanfui & Ors., it is no longer open to the said 
appellant to challenge the correctness of the original order 
passed by the High Court by way of filing other SLPs again. In 
support of the above legal submissions, the learned senior 
counsel has placed reliance on the decision of this Court in D 
the case of Kumaran Silk Trade {P.) Ltd. v. Devendra & 
Ors. 1, wherein it has been held as under: 
· 
· 
"Since the petition for special leave to appeal has 
already been dismissed by this Court, it is no more 
open to the petitioner to seek challenge to challenge 
the original order in this Court again by invoking 
Article 136 of the Constitution of India .... 
. . . . . .It is not open to the petitioner to challenge the 
E 
original order again in this Court after withdrawing 
F 
the earlier appeal, reserving only a liberty in itself 
of seeking a review of th~ original order." 
10. The learned senior
counsel also contends that an · 
appeal is not maintainable against the decision of a court in a 
Review Petition. He places reliance on the decision of this G 
Court in the case of Shanker Motiram Nale v. Shiolalsing 
Gannusing Rajpuf2, wherein it has been held as under: 
1 c2001) 12 sec 549 
2 (1994) 2 sec 753 
H
442 
- SUPREME COURT REPORTS 
[2015] 15S.C.R. 
A 
"This appeal is obviously incompetent. It is against 
an order of a Division Bench of the High Court 
rejecting the application for review of a judgment 
and decree passed by a learned Single Judge, who 
seems to have retired in the meantime. It is not 
B 
against the basic judgment. Order 47 Rule 7 of 
CPC bars an appeal against the order of the court 
rejecting the review. On this basis, we reject the 
appeal." 
This case has been relied upon by this Court in the cases of 
C Vi nod Kapoor v. State of Goa3 and M.N Haider v. Kendriya 
Vidyalaya Sangathan4 
11. The learned senior counsel on behalf of the 
respondents submits that the earlier SLP filed by Bengal 
0 
Ambuja Housing Development .Ltd. was dismissed as 
withdrawn with liberty to file an appropriate petition before the 
High Court to review its order questioned in the earlier SLPs. 
Since liberty was not given to it to challenge that very same 
impugned order once again by filing SLPs in the event of review 
E petition being dismissed, the appeals filed by BengalAmbuja 
Housing Development Ltd. once again challenging the very 
same order is not legally permissible. This contention has been 
very vehemently disputed by learned Attorney General, Mr. 
Rohatgi, who contends that the impugned order was not 
F 
challenged by the appellant Housing Board before this Court, 
and that the interim order of temporary injunction and order 
dated 13.01.2010 directing tlile
jurisdictional police to enforce 
the order of temporary injun,ction are not binding and cannot 
be enforced against it, as it was not a party to the original suit 
"G proceedings at any point of time. It is further contended that it 
has acquired valid interest and title upon the property in dispute 
as the legal heirs of late Gangadas Pal have executed the 
sale deed of the property in its favour, which land stood retained 
3 (;1012) 12 sec 378 
H • (2004) 13 sec 677
BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v. 
443 
PRAMILASANFUI AND ORS. [V. GOPALA GOWDA, J.] 
by them, in terms of the decision of this Court in the case of A 
Su/ekha Pal referred to supra. Thus, the order of temporary 
injunction passed in the original suit proceedings in respect of 
the property in dispute without impleading either the vendors 
of the appellant Housing Board or the heirs of the late 
Gangadas Pal to the original suit proceedings cannot be said 
B 
to have a binding effect on the appellant Housing Board. 
Therefore, the learned Subordinate Judge ought to have taken 
this aspect of the matter into consideration while directing the 
Superintendent of Police, South 24 Paraganas. to enforce the 
interim order of temporary injunction against Bengal Ambuja C 
Housing Development Ltd., which is the lease holder as the 
Board has granted lease hold rights in its favour to develop 
the property by joint venture to provide residential 
accommodation to the economically weaker sections of the 
society, which is a laudable object of the Board under the D 
statutory provisions of the West Bengal Housing Board Act, 
1972. 
12. Thus, the aforesaid decisions of this Court upon which 
reliance has been placed by the learned senior counsel 
appearing on behalf of some of the plaintiffs-respondents E 
cannot be applied either against the appellant Housing Board 
or its lessee or any other person claiming through it, as it was 
not a party to the proceedings and it did not
challenge the said 
order earlier before this Court and therefore the Civil Appeals 
filed by it are maintainable. 
F 
Answer to Point Nos. 2 and 3 
13. The learned Trial Court passed an order of status 
quo on 16.06.2006, restraining the defendants therein from 
selling, transferring, creating third party interest or otherwise G 
disposing of the suit scheduled properties. The said interim 
order of temporary injunction was purportedly a consent order. 
On 07 .07 .2006, though the legal heirs of late Gangadas Pal 
were not brought on record, the learned Trial Court allowed 
H
444 
SUPREME COURT REPORTS 
[2015] 15 S.C.R. 
A 
the amendment application dated 28.01.2003, to amend the 
suit schedule properties. 
14. Mr. Mukul Rohatgi, learned Attorney General and Mr. 
Dushyant Dave, learned senior counsel appearing on behalf 
of the appellants contend that the High Court failed to consider 
B that neither the appellants herein nor the predecessor-in-
interest of the appellants were parties to the Suit No. 121 of 
1962 before the learned Subordinate Judge, Alipore, and thus, 
they were not aware of the order of temporary injunction that 
had been passed in the said suit proceedings. The learned 
C senior counsel further contend that the High Court erred in not 
appreciating the fact that the said plot of land was not a part of 
the suit scheduled property originally. It appears to have been 
included in the suit schedule as one of the properties after the 
death of Ganga Das Pal and abatement of the suit proceedings 
D R;Jainst him without bringing his legal heirs on record. The 
status quo order passed in the original suit sought to be 
enforced against the appellants was passed after the suit was 
abated against late Gangadas Pal and without bringing his 
legal heirs on record. The original suit had abated against him 
E 
by order dated 30.11.1973, the suit being Title Suit No. 121 of 
1962. Further, the land of late Gangadas Pal was only included 
in the suit properties on 07.07.2006, that too without making 
the heirs of late Gangadas Pal as
parties to the said 
proceedings, or informing them about the same. It was further 
F 
contended that by the learned senior counsel that the High Court 
failed to appreciate that neither the appellants, nor their 
predecessors in title and interest (the legal heirs of late 
Gangadas Pal) upon the property involved in these proceedings 
were made parties to the suit and therefore the question of 
G giving consent by them to the interim orders dated 16.06.2006 
and 13.01.2010 does not and cannot arise, especially in light 
of the fact that the order of abatement of the original suit 
proceedings as against late Gangadas Pal had attained 
finality. It was further contended by Mr. Dushyant Dave, the 
H
BENGALAMBUJAHOUSING DEVELOPMENT LTD. v. 
445 
PRAMILASANFUI AND ORS. [V. GOPALA GOWDA, J.] 
learned senior counsel appearing on behalf of the appellant, 
A 
BengalAmbuja Housing Development Ltd. thatthe High Court 
had failed to consider the scope of the principle of /is pendens 
under Section 52 of the Transfer of Property Act, 1882. The 
property which has been purchased by the appellant Housing 
Board was not transferred by any party to the Title Suit No. 
B 
121of1962. The Information Slip issued bytheAlipore Court 
makes it clear that the names of the heirs of late Gangadas 
Pal were not included as parties to the Title Suit No. 121 of 
1962. 
15. On the other hand, Mr. Sanjay Hegde, learned senior C 
counsel appearing on behalf of the respondent- Receiver 
contends that the appellants presently do not have the locus 
standito challenge any subsequent orders passed in the Title 
Suit No. 121 of 1962. The property in dispute, upon wtiich the 
claim is made by them, being a portion of the suit property is D 
governed by the principle of /is pendens as provided under 
the Transfer of Property Act, 1882. The learned senior counsel 
further contends that the High Court has righty observed that 
no serious prejudice has been occasioned to the appellants 
on account of the order passed by the learned Subordinate E 
Judge to enforce the interim order of temporary injunction 
through the jurisdictional police. An order of status quo had 
been passed by Trial Court as far back as
16.06.2006. The 
parties were restrained from selling, transferring, alienating or 
otherwise disposing of the suit property to any third party in 
F 
any manner whatsoever. There was also an order of temporary 
injunction restraining the parties from changing the nature and 
character of the suit property. The property in question being a 
part of the suit property could not have been transferred in 
favour of the appellant Housing Board during pendency of the G 
restrain order. Therefore, it is urged by the learned senior 
counsel th1!1t no indulgence ought to be shown to the appellants 
in any manner whatsoever to interfere with the impugned 
orders by this Court in exercise of its appellate jurisdiction. 
H
446 
SUPREME COURT REPORTS 
[2015] 15 S.C.R. 
A 
16. We have heard Mr. Mukul Rohatgi, learned Attorney 
General and Mr. Dushyant Dave, the learned senior counsel 
appearing on behalf of the appellant and Mr. San jay Hegde 
and Mr. J.P. Cama, the learned senior counsel appearing on 
behalf of the respondents and have perused the documents 
B 
produced before tis jn Civil Appeals in support of their 
respective claims to consider the rival legal contentions urged 
on behalf of the parties and answer the points that are framed 
ir these appeals. 
17. We agree with the contentions advanced by the 
C learned senior counsel appearing on behalf of the appellants. 
The original suit instituted by the plaintiff-respondents against 
late Gangadas Pal had abated vide order of the learned 
subordinate judge, Alipore dated 30.11.1973. The said order 
has attai.ned finality as no appeal has been filed questioning 
D 
t~e correctness of the same. By order dated 07 .07 .2006 
11assed by the learned Subordinate Judge, the property in 
question of late Gangadas Pal was added as part to the suit 
schedule properties by way of_ an amendment to the plaint by 
the time his legal heirs had already acquired intermediary rights 
E under Section 6 of the West Bengal Estates Acquisition Act, 
1953. The heirs of late Gangadas Pal were not made parties 
to the said Title Suit proceedings. On 03.07.2006, the learned 
subordinate judge passed an order granting temporary 
injunction restraining the parties
to the suit from alienating or 
F 
transferring the suit property. A perusal of "Annexure P/1 O" 
which is the Information Slip dated 17.02.2010 issued by the 
office of the learned Trial Court in Title Suit No. 121 of 1962, 
makes it amply clear that the heirs of late Gangadas Pal were 
not made parties to the suit. The appellant Housing Board 
G purchased the land in question from the heirs of late Gangadas 
Pal on 19.08.2008, as is evidenced from the conveyance deed 
"Annexure P-9". The appellant Housing Board was not a party 
to the Title Suit at any point of time. It has purchased the land 
in question from its owners. This property was included in the
BEN GALAM BUJA HOUSING DEVELOPMENT LTD. v. 
447 
PRAMILA SAN FU I AND ORS. [V. GOPALA GOWDA, J.] 
suit schedule properties by way of amendment to the plaint A 
after an application was allowed by order dated 07 .07 .2006. 
The plaintiffs-respondents herein did not have any right to get 
the said land included as part of the suit schedule properties 
for partition, and the learned Subordinate Judge erred in 
allowing the application to amend the suit schedule to include 
B 
the property in question. The learned Subordinate Judge has 
erred in passing order of temporary injunction under Order 
XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, 
in respect of the property in question after it was included to 
the suit schedule as order of temporary injunction can be c 
granted against only the parties to the suit property. Further, 
the grant of police protection without impleading the appellants 
to the original suit proceedings is also not legally permissible 
and the therefore the said order is liable to be set aside. The 
High Court ought to have considered the relevant fact that the D 
appellants were not parties to the suit, and the suit had abated 
as against late Gangadas Pal. Thus, the order of temporary 
injunction passed by the learned Subordinate Judge on 
03.07 .2006 does not apply to the land in question which was 
sold to the appellant Housing Board. 
E 
18. Further, in the instant case, the order of temporary 
injunction dated 03.07.2006 was purportedly
granted by 
consent is also not sustainable in law. The question of consent 
being given by either the appellant Housing Board or the 
predecessors in interest who are its vendors did not arise as 
F 
they were not parties to the said suit. It is a well settled principle 
of law that either temporary or permanent injunction can be 
granted only against the parties to a suit. Further the purported 
consent order in terms of Order XXXIX of the Code of Civil 
Procedure is only binding as against the parties to the suit. In G 
such a case, the order of the Subordinate Judge to grant police 
protection against the appellant Housing Board which is 
enjoying the property is erroneous in law and is liable to be set 
aside. 
H
448 
SUPREME COURT REPORTS 
[2015] 15 S.C.R. 
A 
19. The original owner in the instant case, late Gangadas 
Pal was an intermediary in khas possession of the land in 
question in terms of Section 6 of the West Bengal Estates 
Acquisition Act, 1953. Thus, the learned Subordinate Judge 
did not have the jurisdiction to entertain any suit with respect 
B to the said property, in light of the provision of Section 57B 
(2)( a), (b) and ( c) of the West Bengal Estates Acquisition Act, 
1953, which states as under: 
c 
D 
"57B. Bar to jurisdiction, of Civil Court in 
respect of certain matters.-
xxx 
xxx 
xxx 
(2) No Civil Court shall entertain any suit or 
application concerning any land or any estate, or 
any right in such estate, if it relates to-
( a) alteration of any entry in the record-of-rights 
finally published, revised, made, corrected or 
modified under any of the provisions of Chapter V, 
(b) a dispute involving determination of the question, 
E 
either expressly or by implication, whether a raiyat, 
or an intermediary, is or is not entitled to retain 
under the provisions of this Act such land or estate 
or right in such estate, as the case may be, or 
(c) any matter which under any of the provisions of 
F 
this Act is to be , or has already been, enquired 
into, decided, dealt with or determined by the State 
Government or any authority specified therein." 
In view of the fact that the right, title and interest upon the 
G disputed property has been settled in favour
of the vendors of 
the appellant Housing Board, who are the legal heirs of the 
late Gangadas Pal, who was an intermediary of the land in 
question in terms of Section 6 of the West Bengal Estates 
Acquisition Act, 1953, adding of the property in question to. 
H the suit schedule property in dispute cannot be the subject
BENGALAMBUJA HOUSING DEVELOPMENT LTD. v. 
449 
PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.] 
matter of partition in view of the express provisions of the West A 
Bengal Estates Acquisition Act, 1953 which excludes the 
jurisdiction of the civil court in respect of any rights in such 
estate as entry in record of rights is published. In the instant 
case, the names of the heirs of late Gangadas Pal were 
included in the record of rights in pursuance of the order passed 
B 
in the Writ Petitions in connection with the Big Raiyat Case 
No. 5 of 1967, which order was affirmed by this Court in the 
case of Su/ekha Pal, referred to supra. 
20. Th·e amendment of plaint to include the suit property 
of the heirs of late Gangadas Pal was done in pursuance of C 
the order dated 07 .07 .2006, wherein the learned Subordinate 
Judge, Alipore added the land in question which has been sold 
to the appellant Housing Board, to the schedule of suit lands 
in Title Suit No. 121 of 1962. The same is erroneous in law 
and therefore, liable to be set aside as the said order is not D 
binding on the appellant for the reasons stated supra. 
Answer to Point No. 4 
21. The order of temporary injunction passed in favour 
of the plaintiffs-respondents is accordingly set aside in so far E 
as it relates to the property of the appellant Housing Board is 
concerned which property was included by way of an 
amendment to the plaint. 
22. At the end, it was brought to our notice by Mr. San jay 
Hegde, the
learned senior counsel appearing on behalf of the 
F 
Receiver that the appellant Housing Board has entered into a 
Joint Venture Settlement with Bengal Ambuja Housing 
Development Ltd. without following the mandatory procedure 
of inviting applications to participate in the tender to get the 
leasehold rights for the joint development of the property in G 
question to discharge its statutory obligation. It was further 
contended by the learned senior counsel that in not doing so, 
the action of the appellant Housing Board has become 
H
450 
SUPREME COURT REPORTS 
[2015] 15S.C.R. 
A 
arbitrary, unreasonable and unfair as it amounts to conferring 
largesse upon the appellant Bengal AmbuJa Housing 
Development Ltd. The learned senior counsel contended that 
this is impermissible in law, as has been held in a catena of 
cases by this Court in relation to the property owned by the 
B Central or State Government or Statutory Boards or 
Corporations or Companies owned by either the Central or 
State governments, including the case of Ramana Dayaram 
Shetty v. The International Airport Authority of lndia5 , 
which was relied upon in the more recent decision of Akhil 
c Bhartiya Upbhokta Congress v. State of Madhya 
Pradesh6• The learned senior counsel further contends that 
this court has laid down the law with reference to Article 14 of 
the Constitution of India keeping in view as to how to alienate 
public property by granting reasonable rates and granting 
D agency of joint venture without following the mandatory 
. procedure of inviting applications from the competent persons 
so that the persons may come forward and participate in the 
proceedings to give fair and better offer in the interest of public. 
That has not been done by t~e appellant Housing Board in the 
E 
instant case. Thus, public interest has been adversely affected 
as a result of the arbitrary and unreasonable action on the part 
of the appellant Housing Board in granting leasehold rights for 
the joint development of the property in
question. The learned 
senior counsel has prayed that the appellant Housing Board 
F 
be directed to dispose of the property and make good the 
schemes in the interest of the beneficiaries and utilize the same 
for their benefit. 
23. The above contention of the learned senior counsel 
cannot be dealt with by us, as the same is not in controversy in 
G the present case before us. The aggrieved parties are at liberty 
to seek the above mentioned prayer in an appropriate 
proceeding. 
5 AIR 1979 SC 1628 
H 
6 (2011)5SCC29
BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v. 
451 
PRAM I LA SANF~ AND ORS. [V. GO PALA GOWDA, J.] 
24. Since we have answered the points formulated in 
A 
these appeals in favour of the appellant Housing Board by 
recording the reasons in the judgment, we have to allow the 
appeals of the appellant Housing Board. We pass the following 
order: 
a) The appeals of the appellant Housing Board are 
B 
allowed by holding that ex parte interim order of 
temporary injunction passed on 16.06.2006 by the 
learned Subordinate Judge, Ali pore in Title Suit No. 121 
of 1962 in respect of the property in question purchased 
from the legal heirs of the late Gangadas Pal who are C 
declared as intermediaries under Section 6 of the Act of 
1953 and therefore the same are not binding on this 
appellant as it is not a party to the proceedings and the 
Civil Court did not have the jurisdiction to deal with the 
said property, as per Section 57 B (2) (a), (b) and (c) of D 
the West Bengal Estates Acquisition Act of 1953. 
b) Since the interim order of temporary injunction is not 
binding on the appellant Housing Board and cannot be 
operated against them, therefore the question of E 
enforcing the same against the appellant Housing Board 
or its agents or any person claiming through it, through 
the jurisdictional police to help the plaintiffs-respondents 
as has been granted by the learned Subordinate Judge 
by his orders dated 03.07.2006 and 13.01.2010 at the 
F 
request of the
plaintiffs-respondents, does not arise. 
c) In view of the appeals of the appellant Housing Board 
being allowed, the appeals filed by the Bengal Ambuja 
Housing Development Ltd. are disposed of as they are 
unnecessary. All Interlocutory Applications are disposed G 
of. 
Bibhuti Bhushan Bose 
Appeals disposed of. 
H