Sanjay Tanuk Vs Mrs Mallika Asher

IN THE HIGH COURT OF JHARKHAND, RANCHI M.A. No. 105 of 2022

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Sanjay Tanuk, son of Late G.N. Tanuk aged about 56 years, Proprietor of M.S. Tanuk Brothers at Shop No.5, 6 and 27 resident of Laxmi Mansion, Main Road Bistupur, PO and PS - Bistupur Town, Jamshedpur, District – Singhbhum East, Jharkhand

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.... Appellant

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-- Versus --

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1. Mrs. Mallika Asher, wife of Late Hemendra Laxmi Das Asher

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2. Smt. Lajja Dugar daughter of Late Hemendra Laxmi Das

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3. Smt. Mamta Basu daughter of Late Hemendra Laxmi Das, All are resident of Flat No.8B, Kanchanjanga Apartment 5B, Robinson Street, PO – Rowdon Street, PS – Rowdon Street, District – Kolkata

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4. Sukhdev Mahato, son of Sri Shambhu Mahto resident of House No.46, Sangam Vihar, Sonari PO and PS – Sonari Jamshedpur, East Singhbhum, Jharkhand .... Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellant	--- :- :-	Mr. Amar Kr. Sinha, Advocate Mr. Sandeep Verma, Advocate
For Respondent Nos.1 to 3	:-	Mr. Prashant Pallav, Advocate
For Respondent No.4	:-	Mr. K. Hari, Advocate

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12 /22.01.2025 Heard Mr. Amar Kr. Sinha along with Mr. Sandeep Verma, learned

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counsels appearing for the appellant, Mr. Prashant Pallav, learned counsel appearing for the respondent Nos.1 to 3 and Mr. K. Hari, learned counsel appearing for the respondent No.4

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2. This appeal is preferred under Order 43 Rule 1(r) of Code of Civil Procedure against the judgment and order dated 11.03.2022 passed by learned Civil Judge (Sr. Division-I), Jamshedpur in Original Title Suit No.13 of 2021 by which the learned Court has rejected the petition under Order 39 Rule 1 and 2 of Civil Procedure Code wherein the prayer was

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--1--

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M.A No. 105 of 2022

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made for temporary injunction.

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3. Mr. Amar Kumar Sinha, learned counsel appearing for the appellant submits that the plaintiff namely Sanjay Tanuk filed Original Title Suit No.13 of 2021 against the defendants praying therein a decree for declaration that the plaintiff has legal possession over the suit premises on ownership basis along with a roof right and for permanent injunction restraining the defendants from interfering the plaintiff in any manner in respect of plaintiff’s possession and interest over the suit property. He further submits that the plaintiff is in peaceful possession of Shop No.5, 6 and 27 at Laxmi Mansion, Main Road, Bistupur Jamshedpur where he runs his business in the name and style of M/s Taunk Brothers since very long. He then submits that earlier the plaintiff was the tenant under Late Hemendra Laxmi Das Asher, and Smt. Mallika Asher (defendant No.1) in respect of said shop No.5, 6 and 27 which is the subject matter of the suit and by a written instrument dated 20.02.2015 said Hemendra Laxmi Das Asher and his wife Smt. Mallika Asher transferred the ownership of said three shops to the plaintiff. In this background, he submits that Order 39 Rule 1 and 2 of Civil Procedure Code, the petition was filed for temporary injunction before the learned Court which has been erroneously rejected. He draws the attention of the Court to para 11 of the written instrument of the defendant and submits that the possession has been admitted therein and if a possession is admitted the appellant is having a strong prima facie case. He further draws the attention of the Court to the averments made in the said petition and submits that there is threat of dispossession and in view of that he submits that the learned Court has wrongly passed the order. On

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--2--

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M.A No. 105 of 2022

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these grounds, he submits that the said order may kindly be set aside and temporary injunction may kindly be allowed in favour of the petitioner, who is the plaintiff.

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4. Per contra, Mr. Prashant Pallav, learned counsel appearing for the respondent Nos.1 to 3 submits that the learned Court has rightly dismissed the said petition considering that on the basis of title the possession is sought to be declared at the same time the rent is also said to be paid as a tenant and is paying rent. He submits that if such a contradictory stand is there in such a suit, the learned Court has rightly passed the order. He draws the attention of the Court to paragraph No.2 of the plaint and submits that, the stand has been taken that the said property was transferred wherein it is disclosed that the petitioner was the tenant and on the written instrument this property has been transferred to the petitioner. He further submits that in paragraph No.4 the admission is made that one another Original Suit No. 138 of 2019 filed by the plaintiff/petitioner for permanent injunction. By way of inviting the attention of the Court to paragraph No.6 of the plaint, he submits that another Original Suit No.112 of 2020 has been filed challenging the power of attorney of respondent No.4. He submits that for one property he is litigating by way of filing several petitions. On this ground, he submits that the learned Court has rightly passed the order.

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5. Learned counsel appearing for the respondent No.4, who is the power of attorney holder of respondent No.1 to 3 has adopted the argument of Mr. Pallav, learned counsel appearing for respondent No.1 to 3.

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6. It is an admitted position that Original Suit No.13 of 2021 was

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--3--

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M.A No. 105 of 2022

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instituted by the petitioner/plaintiff for declaration of his legal right over the suit shop on ownership basis. In paragraph No.2 of the plaint, it has been stated that in the said property he has come in possession by way of a tenancy and subsequently it was transferred by way of written instrument. In paragraph No.4 of the plaint, it is disclosed that another suit being Original Suit No.138 of 2019 has been instituted for permanent injunction and in paragraph No.6, it is further stated that Original Suit No.112 of 2020 has been filed challenging the power of attorney of respondent No.4 which clearly suggests that for the said property the petitioner has instituted three suits and claim is being made on the basis of tenancy as well as transfer by way of written instrument and if such a situation is there the learned Court has rightly come to the conclusion that the stand of possession has been contradictorily taken by the plaintiff/petitioner.

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7. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. Further the prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Further mere possessory right does not entitle a plaintiff

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--4--

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M.A No. 105 of 2022

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to obtain the temporary injunction against a true owner, the ownership is not established so far the property in question is concerned of the petitioner/plaintiff. Where the property is on rent and dispute is for that possession temporary injunction cannot be granted. A title is not proved temporary injunction could not be granted on the basis of possession only. Further no injunction can be issued against a lawful owner of the property. It is further well settled that for granting injunction in terms of interim order it would practically amount to decreeing the suit is beyond the purview of granting interlocutory orders. Reference may be made to the case of Rubinder Singh versus Rajasthan Financial Co. & Ors reported in (1995) supp (2) SCC 93 . In the case in hand the prayer is made for declaration of possession and by way of allowing the decree it will amounts to allow the main prayer itself.

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8. In view of the above facts, reasons and analysis, this Court comes to the conclusion that no case of interference is made out, as such this appeal is dismissed.

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(Sanjay Kumar Dwivedi, J.)

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Sangam/ A.F.R

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--5--

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M.A No. 105 of 2022

Sanjay Tanuk v. Mrs Mallika Asher

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Sanjay Tanuk v. Mrs Mallika Asher

Case brief

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