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TMI Blog2015 (9) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... S.L.P. (C) Nos. 5906-5907 of 2015, which are stated in brief hereunder: 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 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. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 with 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout 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 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Rajput (1994) 2 SCC 753, wherein it has been held as under: "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 Code of Civil Procedure bars an appeal against the order of the court rejecting the review. On this basis, we reject the appeal." This case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 rightly 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 property in question being a part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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