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CASE NO.: Appeal (civil) 882-883  of  2001

PETITIONER: ANAND PRASAD AGARWALLA

       Vs.

RESPONDENT: TARKESHWAR PRASAD AND ORS.

DATE OF JUDGMENT:       09/05/2001

BENCH: S. Rajendra Babu & Shivaraj V. Patil

JUDGMENT:

J  U  D  G  M  E  N  T RAJENDRA BABU,  J. : L...I...T.......T.......T.......T.......T.......T.......T..J

   These  appeals  arise out of interlocutory  applications filed  in two suits.  A suit was filed in T.C.No.  2/1996 in the  High Court of Calcutta by United Bank of India  against Hanuman  Foundries  Ltd.   for  fore  closure  and  sale  of hypothecated  land.   Pursuant  to a decree  passed  by  the Court, the Court receiver sold on 29.8.1990 the hypothecated property which was subsequently challenged before this Court and  the said sale was set aside and the matter was remanded to the High Court for conduct of the sale in accordance with the  law  by  auction after due publication of the  sale  to enable  all the intended bidders to participate in the sale. It  was also made clear that if any party has got any  right or remedy, the same has to be worked out elsewhere according to  law  without widening the scope of the suit and  not  in this  suit.   Subject  to making of these  observations  the appeal was allowed by this court.

   A  suit  in  O.S.  No.311 of 1997 was filed  (i)  for  a declaration  that  the plaintiffs therein are purchasers  of the  entire land measuring 21.65 acres;  (ii) that they were raiyats  in  respect  of the land and  (iii)  for  permanent injunction restraining Hanuman Foundries Ltd., the appellant and  other  guarantors  and the United bank  of  India  from interfering  with  their  possession.  In the  meanwhile  an application  was filed in the proceedings arising out of the decree passed in T.C.No.2 of 1996 for a direction of auction of  the property measuring 21.65 acres in terms of the order made  by  this  Court in G.A.  No.  3178 of 1997.   At  this stage  an application for temporary injunction was filed  in suit  No.311  of  1997  and that  temporary  injunction  was granted  initially.   Thereafter the application  filed  for bringing  the property to auction in proceedings arising out of  the  decree in T.C.No.2 of 1996 and the application  for grant  of temporary injunction in the other suits were taken up  together by the learned Single Judge of the High  Court. The   learned   Single  Judge   held  that  the   contesting respondents  have no manner of right to the land in question and  dismissed  the application for interim  injunction  and

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allowed  the  application  directing sale of  the  mortgaged properties.   Aggrieved  by  that order appeals  were  filed before the Division Bench.

   The  properties in question had been mortgaged to  Bihar State  Finance  Corporation and a Suit had been filed  under the provision of Section 31 of the State Finance Corporation Act,  1951  for  recovery  of the amount  and  bringing  the property  for  sale  for  recovery of  monies  lent  by  it. Pursuant  to  that sale the contesting respondents claim  to have  purchased  the property in question.  It  appears  the same  property  had  been also mortgaged to United  Bank  of India and suit in T.C.No.2 of 1996 had been filed.

   In  the appeals, the Division Bench analysed the  matter and  is of the view that the property which had been brought to sale pursuant to a decree passed in favour of Bihar State Finance  Corporation  appears  prima   facie  to  have  been purchased  by the respondents.  A sale certificate had  been issued  in  this  regard which was subsequently  amended  to include  within its fold the entire disputed land and record of  rights  indicating the possession of the land  with  the respondents.    The  Appellate  Court   felt  that   serious questions had been raised for consideration in the course of the  suit  and  therefore there was a prima facie  case  for consideration.   Particularly the sale certificate that  had been  issued indicated that the appellant had purchased  the properties  in  the  auction sale.  A presumption  arose  in favour of that possession pursuant to the records of rights. On  that  basis the Division Bench held that  the  temporary injunction  should be granted subject to certain conditions. Hence these appeals.

   In  challenging this order, Shri Bhaskar P.  Gupta,  the learned  senior  Advocate for the appellant and  Shri  Dhruv Mehta  and  Smt.  Shoba, the learned counsel for the  United Bank  of India, submitted that the learned Single Judge  had examined  the  various aspects of the case under  which  the sale certificate had been issued in favour of the contesting respondents.   The learned Single Judge was, prima facie, of the  view that it was only a lease hold property in  respect of  which  the sale had been held and it had expired;   that the  sale  certificate stood amended after a long  lapse  of time  and  whether  such amendment relates back to  date  of original  certificate  is  suspect;  that  these  contesting respondents  acquired  lease hold rights only in respect  of land   measuring  5.36  acres.    The  claim  of  contesting respondents  as  raiyats was also not justified as the  said land  was in possession of the Court on the date of  vesting in West Bengal Government.

   It  may  not be appropriate for any Court to  hold  mini trial  at  the stage of grant of temporary  injunction.   As noticed  by the Division Bench that there are two  documents which  indicated  that  there  was prima facie  case  to  be investigated.   Unless the sale certificate is set aside  or declared  to  be a nullity, the same has legal validity  and force.   It  cannot be said that no right could  be  derived from  such  certificate.   Secondly,   when  the  contesting respondents were in possession as evidenced by the record of rights,  it  can  not be said that such possession is  by  a trespasser.   The claim of the contesting respondents is  in their  own right.  The decisions referred to by the  learned counsel  for the appellant are in the context of there being no  dispute  as to ownership of the land and the  possession

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was   admittedly  with  a   stranger  and  hence   temporary injunction  is  not permissible.  Therefore, we are  of  the view  that the Division Bench has very correctly appreciated the  matter  and  come to the conclusion in  favour  of  the respondents.   In  these  circumstances,  we  dismiss  these appeals.   We  may  notice that the  time  bound  directions issued  by  the  Division Bench will have to be  adhered  to strictly  by  the parties concerned and the suits should  be disposed  of at an early date but not later than six  months from the date of the communication of this order.

   The  appeals are accordingly dismissed.  There shall  be no order as to costs.