- (1.) AMITAVA Lala, J. This appeal arises out of an order dated 3rd December, 2007, passed by the Additional District Judge, Court No. 1, Kanpur Nagar refusing grant of ad-interim injunction sought by the plaintiffs-appellants in the Original Suit No. 1450 of 2007, Sri Shyam Ji Rastogi and others v. Cawnpore Bar Association and others.
(2.) ACCORDING to Mr. Shashi Nandan, learned senior counsel appearing for the plaintiffs-appellants, two important documents, being Annexures-9 and 10 to the affidavit, are the plinth of their claim in respect of the properties. Annexure-9 is an agreement between the Lieutenant Governor of the North Western Provinces and Chief Commissioner of Oudh and the Barristers, Pleaders and Mukhtars of the District Court (Kanpur) (previously 'cawnpore') on the basis of resolution dated 28th July, 1891 laying down certain rules, under which buildings for accommodation of Barristers, Pleaders and Mukhtars attending the public courts may be erected on Government land, and whereas the Barristers, Vakils and Pleaders practising in Cawnpore having applied to erect a building for themselves, their clients and a Bar library upon the Government land in the vicinity of the Judges Court house at Cawnpore and obtained such leave to erect such building under Letter No. 5577 W. A. dated the 7th September, 1895 from the Secretary to the Government, North Western Provinces and Oudh in the Public Works Department to the District Judge of Cawnpore. Now the Barristers, Vakils and Pleaders of the District Court, whose signatures were therein, were allowed to erect said building upon the said Government land. They agreed and undertook with the Secretary of the State for India in Council, his successors in office and assigns, on behalf of the Government and Bar, to whom the said building may be assigned, allowed or granted under the rules. The terms and conditions of the said agreement are as follows: " Firstly.-that we shall maintain the said building in proper repair and that we shall at all times without objection, make such repairs to the said buildings as the Superintending Engineer of the Circle may, by letter under his signature, require to be made. Secondly.-that we shall not without the permission of Government in the Public Works Department, denote the said building to any other purpose than that for which it is allowed to be erected, that is to say the accommodation of the Barristers, Vakils, Pleaders and Legal practitioners of the district of Cawnpore for all purposes connected with their practice in the civil and criminal Courts, their clients and for our Bar Library. Thirdly.- that if we shall, for three months after receipt thereof, fail to comply with a requisition to repair the said building made by the Superintending Engineer in the manner aforesaid, or if we shall without the aforesaid permission of Government denote the said building to any other purpose than that for which it is allowed to be erected, or if for the space of six months, the said building shall not be used for the said purpose, then the said building shall become absolutely and entirely the property of Government and we shall not be entitled to any compensation in respect thereof. Fourthly.-that we shall not, by reason of being allowed such said building on such said Government land, acquire or be entitled to any right or interest whatever in the said or around upon which such building is and except the right to enjoy and use subject to the conditions of this agreement. Fifthly.-that we shall without objection pay all the chargeable upon the said building when erected, such taxes be leviable by law upon land always save and provided that we shall not be able to pay land revenue. Sixthly.- that if the Government requires the removal of the said building whilst in our use and my agreement under these rules we shall without objection comply with a requisition for its removal within a reasonable time after receipt thereof and of the value of the building at the time such value to be by the Superintending Engineer of the Circle. " Annexure-10 is a further agreement dated 5th October, 1929 entered into between the Cawnpore Bar Association, incorporated under the Societies Registration Act, 1860, and the Secretary of the State for India in Council (which includes his successors in office and assigns ). Bar Association wanted to erect chambers upon the Government land in the vicinity of the Bar Association at the Court compound in accordance with the plan attached to the letter G. O. No. 155/v1i-541 Allahabad dated 2nd February, 1928. The conditions of such agreement are as under: " Firstly, that the Association shall maintain the said building in proper repair and that it shall at all time, without objection, make such repairs to the said building chambers as the Superintending Engineer of the Circle may by letter, under his signature, require to be made. Secondly, that the Association shall not without the permission of Government, in public works department, devote the said building, chambers to any other purpose than that for which it is allowed to be erected, that is to say the accommodating of the Barristers, Advocates, Pleaders, Members of the Association of the district of Cawnpore for purposes connected with their legal profession. Thirdly, that if the Association shall, for three months after receipt thereof, fail to comply with a requisition to repair the said building made by the Superintending Engineer in the manner aforesaid, or if it shall without the aforesaid permission of Government devote the said building to any other purpose than that for which it is allowed to be erected, or if for the space of six months, the said building shall not be used for the said purpose, then the said building shall become absolutely and entirely the property of the Government, and the Association shall not be entitled to any compensation in respect thereof. Fourthly, that the Association shall not, by reason of being allowed to erect such said building on such said Government land, acquire or be entitled to any right or interest-whatever in the soil or ground up on which such building is erected, save and except the right to enjoy and use the said building, subject to the conditions of this agreement. Fifthly, that the Association shall without objection pay all taxes chargeable upon the said building when erected whether such taxes be leviable by law upon landlord or tenant always save and provided that it shall not be liable to pay land revenue. Sixthly, that if Government requires the removal of the said building whilst in the Association's use and enjoyment under these rules, the Association shall without objection comply with a requisition for its removal within a reasonable time after receipt thereof and upon payment of the value of the building at the time, such value to be assessed by the Superintending Engineer of the Circle. . Seuenthly, that no additions or alterations subsequently required will be made to the said building until the plans thereof have been approved and the sanction of Government accorded to the same. " It is stated by the plaintiffs-appellants that the Bar Association had no fund to construct the chambers and the land was assigned to different legal practitioners to erect permanent chambers at their own cost. The chambers were constructed by the predecessors-in-interest of the plaintiffs-appellants. They are the absolute owners of the chambers by succession/transfer. The number of the chambers is disclosed in the schedule annexed with the plaint. The Bar Association has always been recognizing the absolute rights of the plaintiffs-appellants and their predecessors. In June, 2007, the respondent Bar Association took a resolution to erect the chambers over the roofs of the chambers owned by the plaintiffs-appellants. According to the appellants, the said resolution is not in accordance with the terms of the agreement deed dated 5th October, 1929. The plaintiffs-appellants asked the defendants-respondents to withdraw the said resolution but they did not pay any heed, which gave a cause of action to the plaintiffs-appellants to file the present suit. The plaintiffs-appellants and/or their predecessors are enjoying the chambers as owners of the same for more than 70 years and they have perfected their title by adverse possession. The defendants-respondents filed their respective objections and contested the cause.
(3.) LEARNED Judge of the court below in the order impugned has extensively discussed the facts and circumstances of the case and pointed out two very important factual parts. Firstly, the agreement was made for construction of building for the occupation of the Barristers, Pleaders and Mukhtars for attending the public courts and secondly, the subsequent agreement provided grant of land to the Bar Association for the purpose of occupation of Barristers, Advocates, Pleaders and Members of the Association for the purposes connected with their legal profession. Therefore, grant of the land was made for the purpose of justice delivery system. Neither the grant was sought for any advocate in personam nor any right in personam was created by the said grant. It appears that number of advocates, who were occupying such chambers, sold the same by registered sale-deeds. Somewhere heirs of the deceased legal practitioners have executed sale-deeds showing their proprietary right over the chambers in question. No such right has been assigned to the advocates by the State Government for the said purpose. Subsequent assignment, if any, was made by the Cawnpore Bar Association for the specific purpose with the sole objective of rendering justice. They cannot be protected by their adverse possessory right. Since the assignment was made by the then Government to the Bar Association, any sale-deed by any advocate is outcome of fraud and can be thrown out at any stage of litigation. It has further been observed by the court below that the constructions were made without the sanction of the Kanpur Development Authority. Moreover, since the Bar Association has permitted some of the advocate to construct the chambers, the occupation is permissive occupation being contra to the adverse possession. Mr. Shashi Nandan, learned senior counsel, contended before this Court, there is no dispute that the plaintiffs-appellants made construction of the chambers at their own costs. This important aspect has not been considered by the court below. When the construction is made out of their own funds, the respondents cannot take a resolution to make construction on the roof of the respective chambers to allot the same to others. Relying upon two judgments of the Supreme Court in Dalpat Kumar and another v. Prahlad Singh and others, 1992 (1) SCO 719 and Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Doss, AIR 2005 SC 104 2004 (4) AWC 3717 (SC), he stated that prima facie case is not attached to prima facie title, which the court below failed to appreciate and rejected the prayer for adinterim order of injunction. At the time of grant of injunction only three aspects are to be seen by the Court, i. e. , (a) prima facie case (b) irreparable injury and (c) balance of convenience. We find from the judgment of the Supreme Court in re: Dalpat Kumar (supra) that the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad-interim injunction pending the suit. By referring Maharuml Kheuiajt Trust (supra) Mr. Shashi Nandan wanted to say that the Court should not permit the nature of the property being changed, which also includes alienation or transfer of property which may lead to loss or damages being caused to the party, who may ultimately succeed and may further lead to multiplicity of proceedings.;