THE HIGH COURT OF MEGHALAYA

Civil Revision(Petition) No. 23 of 2011

1. Shri Peter A Thorose, s/o (L) AA Thorose, St. Peter's School, Cleve Colony, Shillong.

2. Shri Patrick A Thorose, s/o (L) AA Thorose, St Peter's School, Cleve Colony, Shillong

……. Plaintiffs/Petitioners

-Versus-

1. Smti Geeta Devi Goenka, C/o Goenka Automobiles Building, Dispur, Guwahati.

2. Shri Bijoy Goenka, r/o No. 56, 1st main, 1st Block RMV Second Stage, Bangalore.

3. Shri Raj Kumar Goenka, c/o Goenka Automobile, Dispur, Guwahati.

4. Shri Bharat Goenka, r/o S-443, Second Floor, Greater Kailash, New Delhi.

……. Defendants/Respondents

Smti PDB Baruah, Advocate, for the plaintiffs/petitioners Shri I Lahiri, Advocate, for respondents No. 1, 2 and 4. Shri VK Jindal, Senior Advocate, assisted by Ms QB Lamare, Advocate, for the respondent No. 3.

AND

Civil Revision(Petition) No. 24 of 2011

Shri HD Santos, s/o (L) Charles Harold D Santos, r/o Nongrim Hills, Shillong

……. 3 rd Party/Petitioner

-Versus-

• 1. Shri Alexander Thorose.
• 2. Shri Peter A Thorose.
• 3. Shri Patrict A Thorose. All of Cleve Colony, Shillong for themselves and on behalf of
• 4. Shri John Thorose.

5. Shri James Bryan Thorose, Both of Cleve Colony, Shillong, presently of 21 Lincoln Drive, Lower Plenty 3098, Austrialia.

6. Smti Gita Devi Goenka, w/o (L) Bishwanath Goenka.

7. Shri Raj Kumar Goenka, s/o (L) Bishwanath Goenka, both of Goenka Automobiles Building, Dispur, Guwahati, District of Kamrup (M), Assam.

8. Shri Bijoy Goenka, s/o (L) Bishwanath Goenka of No. 56, 1st A Main, 1st Block, RMV 2nd Stage, Bangalore.

9. Shri Bharat Goenka, s/o (L) Bishwanath Goenka, of S-444, 2nd Floor, Greater Kailash II, New Delhi.

…….Defendants/Respondents

Shri VK Jindal, Senior Advocate, assisted by Ms QB Lamare, Advocate, for the plaintiff/petitioner.

Smti PDB Baruah, Advocate, for the defendants/respondents No. 1 to 5.

Shri I Lahiri, Advocate, for defendants/respondents No. 6 to 9.

Date of hearing 17.02.2014

Date of Judgment and Order 19th February, 2014.

JUDGMENT AND ORDER

ORAL: HON'BLE PRAFULLA C. PANT, CHIEF JUSTICE

Both these petitions are directed against the same order dated 16.06.2011, passed by the Additional Deputy Commissioner / Additional District Judge, Shillong in FAO No. 1(T) 2009 and FAO No. 2(T) 2009, whereby said Court has affirmed the order dated 21.02.2009 passed in Misc. Case No. 33(T) of 1990 (arising out of Title Suit No. 21(T) of 1990) passed by the trial court (Assistant to Deputy Commissioner/Munsiff, Shillong). By the order dated 21.02.2009 after hearing the parties, trial court rejected the application for temporary injunction moved by the plaintiff and also dismissed the application of impleadment moved by the third party HD Santos.

2. Heard learned counsel for the parties and perused the records.

3. Brief facts of the case are that the plaintiffs claiming themselves owners of the land in suit filed Title Suit No. 21(T) 1990 before the trial court for declaration of title, confirmation of possession and permanent injunction, in

respect of Patta No. 36 of 1990. It is pleaded by the plaintiffs that the land in dispute which was being used by the St. Peter's School, Shillong, as play ground was part of Patta No. 36 of 1990. In the aforesaid suit, the plaintiffs moved an application for temporary injunction which was registered as Misc. Case No. 33(T) 1990 praying to restrain and prohibit the opposite parties/defendants from interfering in the possession of the plaintiffs over the land in suit. Initially, on 12.04.1990, ad interim injunction was passed which was modified on 19.04.1990 with the direction "in the interim, none of the parties to the suit or anyone claiming through them would interfere with or enter upon or disturb the suit land." It was further directed vide order dated 02.05.1990 by the trial court that none of the parties will enter upon the disputed land or utilize the same. On this, the plaintiffs filed Misc. Appeal No. 5(T) of 1990 and defendants filed Misc. Appeal No. 4(T) of 1990. Both the appeals were disposed of directing the parties to maintain status quo. Aggrieved by the order of the appellate court, Civil Revision Petition No. 124 of 1990 and Civil Revision Petition No. 126 of 1990 were filed by the rival parties before the Gauhati High Court. Said two revisions were disposed of vide order dated 26.07.1990 directing the

Additional Deputy Commissioner, Shillong to decide Misc. Appeals on merits.

4. From the record it appears that in aforesaid two Misc. Appeals, Misc. Application 4(T) of 1990 and Misc. Application 5(T) of 1990 were moved by defendants /opposite parties praying for survey of the suit land to ascertain the location of the disputed plot. Learned District Judge/Addl. Deputy Commissioner, Shillong vide its order dated 14.11.1990 dismissed the appeals with the direction to the trial court to get the land surveyed through competent surveyors. Against the said order, Civil Revision No. 371 of 1990 was filed by the plaintiffs once again before the Gauhati High Court and said Court vide its judgment and order dated 06.07.1991 disposed of the matter with specific direction as to how the survey is to be conducted on the land in question. Copy of the order dated 09.03.1992 passed by the Apex Court in Special Leave to Appeal (Civil) No. 16960/91 shows that said round of litigation (on interim order) ended with the following order :

"The Special Leave Petition is dismissed. It is, however, made clear that no observations made by the High Court shall

come in the way of the Trial Court to decide the application for temporary injunction in accordance with law. We further direct that the application for temporary injunction may be disposed of within three months from today. With these observations the special leave petition is dismissed."

5. From the record it appears that thereafter the suit proceeded and the trial court examined two witnesses of the plaintiffs and fifteen witnesses of the defendants in the light of the High Court order passed in the revision, and vide order dated 30.05.2001, trial court directed regarding conducting survey of the suit land to examine as to whether the land in suit (alleged playground) lies in Patta No. 36 of 1990 or not. Aggrieved by the said order, Civil Appeal 6(T) 2001 was filed by the plaintiffs but vide order dated 07.05.2002 the order of the trial court regarding conducting survey of the land was upheld. Against this, CR(P) No. 37 (SH) 2002 was filed by the plaintiffs and said civil revision was decided by the Shillong Bench of Gauhati High Court vide its order dated 28.07.2005 with the following concluding paragraph :

"It is ordered that the land in suit shall be surveyed by Surveyer of Meghalaya in

presence of the Officers of Syiem of Mylliem, who shall produce the records, the authorized members of local Dorbar and also in presence of all the parties. The learned Assistant to Deputy Commissioner shall supervise the survey work in course of the survey. While conducting the survey of the suit land, the surveyors shall also take into consideration the claim of respondent No.1 and 2 and the respondent No. 3 regarding their land. The learned Assistant to Deputy Commissioner shall fix a date for taking the survey by giving prior information to all concerned to be present in the course of survey."

Above order was modified by the Gauhati High Court vide order dated 21.09.2005 passed in Misc. Case No. 207(SH) 2005 and it is directed that not only the land covered under Patta No. 36 of 1990 of St. Peter Higher Secondary School, but also the land of the defendants shall be surveyed.

6. In compliance of the direction issued by the High Court, Munsiff (Assistant to Deputy Commissioner), East Khasi Hills, Shillong vide letter dated 21.04.2006 requested the Directorate of Land Records & Surveys, Govt. of Meghalaya to survey the plots of the parties in terms of the conditions mentioned in the High Court's order. When the survey proceedings were held on 20.02.2006, the plaintiffs moved an application under Section 151 Code of Civil Procedure 1908 to stay the survey proceedings. In this connection, plaintiffs also filed WP(C)No. 23(SH) 2006, wherein the matter was referred back again to the trial court on the very date to take decision in accordance with law. On the next date i.e. 21.04.2006 survey report was submitted by the Directorate of Land Records & Surveys, Govt. of Meghalaya and the trial court fixed the next date inviting objections against the survey report.

7. Meanwhile, third party HD Santos filed an application for impleadment as third party in the suit. And once again, plaintiffs knocked the doors of the High Court by filing CR(P) No. 27 of 2008 which was disposed of vide order dated 18.07.2008 with the direction to the trial court to decide the application for temporary injunction (moved by the plaintiffs) and application for impleadment (filed by the third party) within a period of 45 days. Another civil revision appears to have been filed by the defendants which was numbered as CR(P) No. 33(SH) 2008 and said CR(P) was also disposed of directing the trial court to decide the matter expeditiously.

8. Consequently, impugned order dated 21.02.2009 was passed by the trial court after hearing the parties, and with detailed discussion, both the applications for temporary injunction (filed by the plaintiffs) and the impleadment application (filed by the third party) were rejected.

9. Lower appellate court also dismissed the two appeals (FAO No. 1(T) 2009 filed by the plaintiffs and FAO No. 2(T) 2009 filed by the third party HD Santos) after hearing the parties and affirmed the order of the trial court rejecting application for temporary injunction moved by the plaintiffs and application for impleadment moved by the third party. Hence this revision.

10. This Court has examined the impugned order dated 21.02.2009 passed by the trial court in the suit and impugned order dated 16.06.2011 passed by the lower appellate court. In the order dated 21.02.2009, the trial court has discussed the evidence at length and given detailed reasons why the temporary injunction

application was found liable to be rejected, and the impleadment application was also misconceived. Lower appellate court has also applied its mind and given its reasons to concur with the trial court.

11. After perusal of the lower court record which was summoned by this Court, this Court finds that not only the survey report is against the plaintiffs who refused to cooperate with the survey proceedings, there is also other evidence on record suggesting that the plaintiffs have no prima facie case. From the record it appears that between the plaintiffs St. Peter Higher Secondary School and the alleged playground there is a pathway which is admitted by the plaintiffs own witness PW 2 Peter A Thorose. The defendants case is that the land across the pathway was purchased by them in the year 1950 through a registered Sale Deed. The Sale Deed has been proved by DW 2 U Guidetti witness of the Sale Deed. DW 6 Andrew L Umdor an employee of the Municipal Board has stated on the basis of the record that the plaintiffs land measures only 36450 sq. ft. and on the Northern side of said plot it is the land of the defendant Rameshwar Goenka.

12. Not only this, statement of DW 13 Raj Kumar Goenka has stated that vide letter dated 31.09.1983 (Ext. D15) plaintiff PS Thorose communicated to him that the plaintiffs are desirous to purchase his land to use the same as a playground.

13. As far as the impleadment of third party HD Santos is concerned, there is no material on record to substantiate his claim that he had any interest in the land in suit. His case is based on the plea that a document executed in the year 1950 in favour of the defendants was a result of fraudulent transaction, but no suit for cancellation of said Sale Deed was ever filed by the said third party, and after a period of fifty years genuineness of the registered document is being challenged.

14. Having gone through the impugned orders passed by the courts below and after considering the application of the learned counsel for the parties and further consider the evidence on record, I fully concur with the view taken by the two courts below.

15. It is relevant to mention here that the suit is now twenty four years old and it has earned an exchequer history. Even otherwise this Court should not interfere with the concurrent findings of the facts recorded by the two courts below, particularly, when no illegality committed by the two courts below in rejecting the application for temporary injunction of the plaintiffs, and rejecting the impleadment application moved by the third party HD Santos. It is not a case of jurisdictional error on the part of the courts below. From all angles, both CR(P) 23 of 2011 filed by the plaintiffs, and CR(P) 24 of 2011 filed by the third party HD Santos are liable to be dismissed.

16. Accordingly, both the petitions are dismissed. Registry is directed to send back the lower court record without delay so that suit may proceed further.

(PRAFULLA C PANT) CHIEF JUSTICE

19th February, 2014

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