18 September 2015
Supreme Court
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BENGAL AMBUJA HOUSING DEVELOPMENT LIMITED Vs PRAMILA SANFUI (DEAD) .

Bench: T.S. THAKUR,V. GOPALA GOWDA,R. BANUMATHI
Case number: C.A. No.-007209-007210 / 2015
Diary number: 42366 / 2014
Advocates: SACHIN PATIL Vs


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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7209-7210  OF 2015 (Arising Out of SLP (C) Nos.5902-5903 of 2015)

BENGAL AMBUJA HOUSING  DEVELOPMENT LTD.                    … APPELLANT

Vs. PRAMILA SANFUI AND ORS.              …RESPONDENTS

WITH

CIVIL APPEAL NOS. 7211-7212  OF 2015 (Arising Out of SLP (C) Nos.5906-5907 of 2015)

WEST BENGAL HOUSING BOARD           ……APPELLANT Vs.

PRAMILA SANFUI AND ORS.              …RESPONDENTS

   J U D G M E N T

V. GOPALA GOWDA, J.     Leave  granted  in  all  the  Special  Leave

Petitions.

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2. The  present  appeals,  filed  separately,  arise

from  the  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  by  the  High  Court  of

judicature  at  Calcutta,  whereby  the  High  Court

refused to interfere with the impugned judgments

therein.  The  appeals  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 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:

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    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  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 said land among the co-owners

namely, Sanfui, Naskar, Mondal 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. Gangadas Pal was not a party to the said

suit  at  its  inception.  He  was  impleaded  as

Defendant No. 54 vide order of the learned Trial

Court dated 14.08.1957. Gangadas Pal died in June

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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. 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 against them, as per the provisions of

Order  XXII,  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 XXII of the Code of

Civil Procedure, 1908 holding that the suit had

abated  as  against  the  deceased  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:

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“There  is  authority  to  hold  that  no formal order of abatement need be made as  a  suit  or  appeal  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  by  order no.  337,  dated  15.9.73  was  a  mere 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  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,  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

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matter  afresh  held  that  the  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 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  abatement  at  least  within  60  days from the date of abatement or order of the dismissal in terms of provisions of

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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  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 acquired by the State Government, and came to

be  vested  in  them,  vide  order  dated  16.09.1971

passed in Big Raiyat Case No.5 of 1967. In 1991,

the order of vesting was challenged by the heirs

of Gangadas Pal, by way of a Writ Petition C.O.

No. 11731 (W) of 1991. The learned single judge

allowed the Writ 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 the decision of

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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  Supplies)

Cooperative  Housing  Society  Ltd.  and  Ors.  v.

Sulekha Pal (Dey) & Ors. reported in (2003) 9 SCC

253, when this Court held as under: “21.  So  far  as  the  case  on  hand  is concerned, it is seen from the materials on record that effective, 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

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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 suffer 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  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 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 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

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Notification is issued under Section 4 and got published by the combined 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 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.

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 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

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had not given their consent, directing the parties

to maintain status quo with respect to the suit

properties,  and  restrained  them  from  selling,

transferring, alienating inter party or with any

third  party  or  in  any  manner  whatsoever  from

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

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 held as under:

“On  perusal  of  the  instant applications  under  consideration  and after hearing the submissions of the learned advocates court comes to the

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conclusion  that  the  amendment  is formal in nature 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.”

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 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, 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

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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 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 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  dismissed  the  same.  The

High Court held that the third party (appellant

Housing Board) had purchased the suit property lis

pendens, and that no permission was taken from the

court  for  the  same.  Thus,  the  provisions  of

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Section 52 of the Transfer of Property Act, 1882

would  govern  the  transaction.  The  High  Court,

while  dismissing  the  application  filed  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  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 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 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. From the above facts, it is clear that the third-party/  petitioner  herein  had purchased the suit property lis pendens and that no permission was sought for from the Court to purchase the suit property.

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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 impugned order. Record does not show that the 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 Receiver.”

7. Aggrieved by the order, the appellant Bengal

Ambuja  Housing  Development  Ltd.  filed  an  S.L.P.

(C) No. 8049 of 2013 before this Court challenging

the legality of the said order, which petition was

dismissed  as  withdrawn,  by  granting  liberty  to

file 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 order dated 21.11.2014 has dismissed

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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  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 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  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

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broadly framed the following points which require

our attention and 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  learned 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

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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 barred by the provisions of Sections 57 - B (2)(a), (b) 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  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  &  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

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legal submissions, the learned senior counsel has

placed reliance on the decision of this Court in

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 original order  again  in  this  Court  after withdrawing  the  earlier  appeal, reserving only a liberty in itself of seeking a review of the 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 Court in the case

of  Shanker Motiram Nale  v. Shiolalsing Gannusing

Rajput2, wherein it has been held as under:

1 (2007) 12 SCC 549 2 (1994) 2 SCC 753

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“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 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 Vinod 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  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  petition  being

dismissed,  the  appeals  filed  by  Bengal  Ambuja 3 (2012) 12 SCC 378 4 (2004) 13 SCC 677

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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

challenged by the appellant Housing Board before

this  Court,  and  that  the  interim  order  of

temporary  injunction  and  order  dated  13.01.2010

directing the jurisdictional police to enforce the

order of temporary injunction are not binding and

cannot be enforced against it, as it was not a

party  to  the  original  suit  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

by them, in terms of the decision of this Court in

the case of  Sulekha Pal  referred to supra. Thus,

the order of temporary injunction passed in the

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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 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 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

statutory  provisions  of  the  West  Bengal  Housing

Board Act, 1972.

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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  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.

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

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

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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 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 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 against him without bringing his

legal heirs on record. The status quo order passed

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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  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 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  giving

consent  by  them  to  the   interim  orders  dated

16.06.2006  and  13.01.2010  does  not  and  cannot

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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  learned  senior  counsel

appearing  on  behalf  of  the  appellant,  Bengal

Ambuja  Housing  Development  Ltd.  that  the  High

Court  had  failed  to  consider  the  scope  of  the

principle of  lis 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. 121 of 1962. The Information Slip issued by

the Alipore 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  counsel  appearing  on  behalf  of  the

respondent- Receiver contends that the appellants

presently  do  not  have  the  locus  standi to

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challenge  any  subsequent  orders  passed  in  the

Title  Suit  No.  121  of  1962.  The  property  in

dispute,  upon  which  the  claim  is  made  by  them,

being a portion of the suit property is governed

by the principle of lis 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 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  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

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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 restrain order. Therefore, it is urged by the

learned senior counsel that 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.

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. Sanjay Hegde and Mr. J.P. Cama,

the learned senior counsel appearing on behalf of

the  respondents  and  have  perused  the  documents

produced before us in 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  in  these

appeals.

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17.  We agree with the contentions advanced by the

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 attained finality as no appeal has been filed

questioning the correctness of the same. By order

dated 07.07.2006 passed 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 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 transferring the suit

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property. A perusal of “Annexure P/10” 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

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  suit  schedule

properties by way of amendment to the plaint 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

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schedule to include 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  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 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.

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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 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

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.

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

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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 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:

“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, 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 this Act is to be , or

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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  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  the  suit  schedule

property in dispute cannot be the subject matter

of partition in view of the express provisions of

the  West  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  in  the  Writ  Petitions  in

connection with the Big Raiyat Case No. 5 of 1967,

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which order was affirmed by this Court in the case

of Sulekha Pal, referred to supra.

20. The amendment of plaint to include the suit

property  of  the  heirs  of  late  Gangadas  Pal  was

done in pursuance of 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 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 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.  

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22. At the end, it was brought to our notice by

Mr.  Sanjay  Hegde,  the  learned  senior  counsel

appearing  on  behalf  of  the  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 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  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 Central or State Government

or Statutory Boards or Corporations or Companies

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owned by either the Central or State governments,

including the case of Ramana Dayaram Shetty v. The

International  Airport  Authority  of  India5,  which

was  relied  upon  in  the  more  recent  decision  of

Akhil  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 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 the appellant

Housing Board in the instant case. Thus, public

interest has been adversely affected as a result

of the arbitrary and unreasonable action on the

5 AIR 1979 SC 1628 6 (2011) 5 SCC 29

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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  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 the present case before us.

The aggrieved parties are at liberty to seek the

above  mentioned  prayer  in  an  appropriate

proceeding.

24. Since we have answered the points formulated in

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 allowed by holding that  ex  parte interim  order  of

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temporary  injunction  passed  on 16.06.2006 by the learned Subordinate Judge, Alipore 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 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  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  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

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Judge by his orders dated 03.07.2006 and 13.01.2010 at the 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 of.

                         …………………………………………………………J.                           [T.S. THAKUR]

                             …………………………………………………………J.                           [V. GOPALA GOWDA]

                         …………………………………………………………J.                           [R. BANUMATHI]

New Delhi, September 18, 2015