BENGAL AMBUJA HOUSING DEVELOPMENT LTD.versusPRAMILA SANFUI AND ORS.

                        [2015] 15 S.C.R. 428


A      BENGAL AM BUJA HOUSING DEVELOPMENT LTD.
                                   v.
                    PRAMILASANFUIAND ORS.
                       SEPTEMBER 18, 2015
B
               (Civil Appeal Nos. 7209-7210 of 2015)
            [T. S. THAKUR, V. GOPALA GOWDA AND
                      R. BANUMATHI, JJ.]
           Code of Civil Procedure, 1908- 0. XXXIX, rr.1and2-
C    Temporary or permanent injunction can be granted only
    against the parties to a suit- Intermediary right holder under
     the 1953 Act - Bar on jurisdiction of the Civil Court to deal
    with property of such intermediary - Whether order of
     temporary injunction passed by the Subordinate Judge, in
D   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 thejurisdictional police as has been granted
    by the Subordinate Judge, though the sale deed in favour of
E    the Board is not challenged by the plaintiffs-respondents and
     the said order can be enforced against the appellants through
    jurisdictional police - 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.
F   property was conferred upon the legal heirs of late 'G' as
    intermediary right holder u/s. 6 of the 1953 Act and the
    institution of suit for partition by the contesting respondents
    is barred by the provisions of ss.57-B(2)(a), (b) and (c) of the
    Act of 1953 - Held: The plaintiffs-respondents did not have
G   any right to get the said land included as part of the suit
    schedule properties for partition, and the Subordinate Judge
    erred in allowing the application to amend the suit schedule
    to include the property in question - The appellants were not
    parties to the suit, and the suit had abated as against late
H
                                 428
  BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v.                        429
           PRAM ILA SAN FU I AND ORS.

 'G' - The Subordinate Judge erred in passing order of              A
temporary injunction u/O.XXXIX, rr. 1 and 2 of CPC, 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       B
original suit proceedings is also not legally permissible -
The original owner in the instant case, late 'G' was an
intermediary in khas possession of the land in question in
terms of s. 6 of the 1953 Act - Thus, the Subordinate Judge
did not have the jurisdiction to entertain any suit with respect    c
to the said property, in light of the provision of s.57B (2)(a),
(b) and (c) of the 1953 Act - Ex parte interim order of
temporary injunction passed by the Subordinate Judge in
respect of the property in question purchased from the legal
heirs of the late 'G' who are declared as intermediaries u/s. 6     D
of the 1953 Act 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 s.57 B (2) (a), (b) and (c) of the 1953 Act-
Since the interim order of temporary injunction is not binding      E
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           F
the Subordinate Judge at the request of the plaintiffs-
respondents, does not arise -Appeals of appellant Housing
Board allowed - West Bengal Estates Acquisition, Act 1953
-ss.57-B(2)(a),(b) and (c).
     West Bengal Government Employees (Food and                     G
     Supplies) Cooperative Housing Society Ltd. and
     Ors. v. Sulekha Pal (Dey) & Ors. (2003) 9 SCC
     253 : 2003 (3) SCR 626; Bengal Ambuja Housing
     Development Limited & Anr. .v. Pramila Sanfui &
                                                                    H
430         SUPREME COURT REPORTS                [2015] 15S.C.R.


A          Ors., Kumaran Silk Trade (P.) Ltd. v. Devendra &
           Ors. (2007) 12 sec 549 : 2001 (11) SCR 752;
           Shanker Motiram Nale v. Shiolalsing Gannusing
           Rajput (1994) 2 SCC 753; Vinod Kapoor v. State
           of Goa (2012) 12 SCC 378: 2012 (8) SCR 1089;
B          M.N Haider v. Kendriya Vidyalaya Sangathan
           (2004) 13 SCC 677; Ramana Dayaram Shetty v.
           The International Airport Authority of India AIR
           1979 SC 1628 : 1979 (3) SCR 1014; Akhil
           Bhartiya Upbhokta Congress v. State of Madhya
C          Pradesh (2011) 5 SCC 29: 2011 (5) SCR 77 -
           referred to.
                         Case Law Reference
      2003 (3) SCR 626           ,·referred to        Para4
D     2007 (11) SCR 752          referred to          Para 9
      (1994) 2 sec 753           referred to          Para 10
      2012 (8) SCR 1089          referred to          Para 10
      (2004) 13 sec 677          referred to          Para 10
 E
      1979 (3) SCR 1014.         referred to          Para 22
      2011 (5) SCR 77            referred to          Para 22
          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      7209-7210 of 2015
 F
           From the Judgment and Order dated 21.11.2014 and
      19.12.2012 of the High Court of Calcutta in R.V.W. No. 78 of
      2013 and in C.O. No. 709of2010
                                 WITH
G
           C.A. Nos. 7211-7212 of 2015.
            Mukul Rohatgi, AG, Dushyant Dave, Jaideep Gupta, Sr.
      Advs., Sachin Patil, S. Sen, R. Sinha, S.S. Gupta, S. Ghosh,
      Shriram P. Pingle,Advs. for the Appellant.
H
  BENGALAMBUJAHOUSING DEVELOPMENT LTD. v.                        431
         . PRAMILASANFUIANDORS.

      J. P. Gama, Sanjay Hegde, Sr. Advs., Vimal Chandra         A
S. Dave, Ms. Susniita Mahala, Mayan Prasad, Ms. Shashi
Kiran, Gopal Pahari, Dipak Kumar Jena, Ms. Minakshi Ghose,
P. Nayak, Abdul Alim, Siddhartha Chowdhury, S. K.
Bhattacharjee, Ranjan Mukherjee, B.P. Yadav, Mrs. Sarla
Chandra, P.K. Maitra, Hitesh Kumar Sharma, V. Shanil Kumar,      B
M.A. Chinnasamy, Bijan Kumar Ghosh,· Ujjwal Banerjee,
U. Banerjee, Asit Kumar Rari, Ms. Ratna Banerjee,
Rameshwar Prasad Goyal, Subhasish Bhowmick,
Ms. Anamika, Kunal Malik, Ashok Kumar Juneja, Chand
Qureshi, Kumud Lata Das, Advs. for the Respondents.              c
     The Judgment of the Court was delivered by
    V. GOPALA GOWDA, J. 1. Leave granted in all the
Special Leave Petitions.
      2. The present appeals, filed separately, arise from the D
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 bythe High Court of
judicature at Calcutta, whereby the High Court refu:..ed to
interfere with the impugned judgments therein. The appeals E
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 F ·
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:                                       G
      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    H
432       SUPREME COURT REPORTS                   [2015) 15 S.C.R.


A   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
B said land among the co-owners namely, Sanfui, Naskar,
    Monda I 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.
    Gang ad as Pal was not a party to the said suit at its inception.
c   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.
D 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
E against them, as per the provisions of Order XXll, 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 XXI I of the Code of Civn Procedure,
    1908 holding that the suit had abated as against the deceased
F 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:
         "There is authority to hold that no formal order of
         abatement need be made as a suit or appeal
G        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
H
  BENGALAMBUJAHOUSING DEVELOPMENT LTD. v.                       433
  PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.]

     by order no. 337, dated 15.9.73 was a mere                  A
     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            B
     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, C
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 matter afresh held that the D
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:
                                                                 E
     "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
                                                                 F
     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
                                                                 G
     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
                                                                 H
434         SUPREME COURT REPORTS                 [2015] 15 S.C.R.


A          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
B          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
c          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
0 acquired   by the State Government, and came to be vested in
  them, vide order dated 16.09.1971 passed in Big Raiyat Case
  No.5of1967. In 1991, the order of vesting was challenged by
  the heirs of Gangadas Pal, byway of a Writ Petition C.O. No.
  11731 (W) of 1991. The learned single judge allowed the Writ
E 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
F the decision of 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
G 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,
H
                                       •,
BENGALAMBU~A HOUSING DEVELOPMENT.LTD. v.                    435
PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.]

  actual and physical possession of the properties           A
  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         B
  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          c
  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          D
  procedure necessarily to be observed before such
  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                .E
  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          F
  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 su~fer from any            G
  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
                                                             H
436         SUPREME COURT REPORTS                  [2015) 15 S.C.R.


A          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
 B         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
 c         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 Notification is issued under
           Section 4 and got published by the combined
 D         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
 E         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.
 F        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
 G 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 had not given
   their consent, directing the parties to maintain status quo with
 H respect to the suit properties, and restrained them from selling,
  BENGALAMBUJAHQUSING DEVELOPMENT LTD. v.                        437
  PRAM ILA SAN FU I AND ORS. [V. GO PALA GOWDA, J.]

transferring, alienating inter party or with any third party or in A
any mannerwhatsoeverfrom 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 B
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 C
held as under:
     "On perusal of the instant applications under
     consideration and after hearing the submissions
     of the learned advocates court comes to the
     conclusion that the amendment is formal in nature            D
     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."                                                    E
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 F
 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, G
 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 H
438       SUPREME COURT REPORTS                  [2015] 15S.C.R.


A 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
B 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
c dismissed the same. The High Court held that the third party
  (appellant Housing Board) had purchased the suit property /is
  pendens, and that no permission was taken from the court for
  the-same. Thus, the provisions of Section 52 of the Transfer of
  Property Act, 1882 would govern the transaction. The High
D Court, while dismissing the application fifed 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
E        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
 F       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
G        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.
H
  BENGALAMBUJAHOUSING DEVELOPMENT LTD. v.                       439
  PRAMILA SAN FU I AND ORS. [V. GOPALA GOWDA, J.]

     From the above facts, it is clear that the third-party/     A
     petitioner herein had purchased the suit property
     tis pendens and that no permission was sought for
     from the Court to purchase the suit property.
     So, the principle of lis pendens as provided in
     Section 52 of the Transfer of Property Act shall            B
     govern the issue.


     The learned Trial judge is justified to pass the
     impugned order. Record does not show that the               C
     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               D
     Receiver."
       7. Aggrieved by the order, the appellant Bengal Ambuja
Housing Development Ltd. filed an S.L.P. (C) No. 8049 of2013
before this Court challenging the legality of the said order, which
petition was dismissed as withdrawn, by granting liberty to file E
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 F
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 G
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
                                                                 H
440         SUPREME COURT REPORTS                   [2015) 15 S.C.R.


A     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
 B    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 broadly framed
      the following points which require our attention and
      consideration:-
 c         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?
 D
           2. Whether the order of temporary injunction dated
           16.06.2006 passed by the l(i)arned Subordinate Judge,
           Alipore, passed in respect of the suit property without
           impleading the vendors and the appellant Housing Board,
 E         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
 F         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
 G          amendment by the plaintiffs-respondents which property
            was 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
 H
     BENGALAMBUJAHOUSING DEVELOPMENT LTD. v.                       441
     PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.]

        barred by the provisions of Sections 57 - B (2)(a), (b)    A
        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 B
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 & C
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 legal submissions, the learned senior
counsel has placed reliance on the decision of this Court in D
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      E
        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       F
        the earlier appeal, reserving only a liberty in itself
        of seeking a review of th~ 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 G
Court in the case of Shanker Motiram Nale v. Shiolalsing
Gannusing Rajpuf2, wherein it has been held as under:
1
    c2001) 12 sec 549
2
    (1994) 2 sec 753
                                                                   H
442           - SUPREME COURT REPORTS                 [2015] 15S.C.R.


 A             "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
 B             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
  C 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
 0
   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
 E petition being dismissed, the appeals filed by BengalAmbuja
   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
 F challenged by the appellant Housing Board before this Court,
   and that the interim order of temporary injunction and order
   dated 13.01.2010 directing tlile jurisdictional police to enforce
   the order of temporary injun,ction 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
"G 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
      3
          (;1012) 12   sec 378
  H • (2004) 13 sec 677
  BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v.                        443
  PRAMILASANFUI AND ORS. [V. GOPALA GOWDA, J.]

by them, in terms of the decision of this Court in the case of A
Su/ekha Pal referred to supra. Thus, the order of temporary
injunction passed in the 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 B
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 C
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 D
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           E
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.                                       F
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   G
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
                                                                    H
444        SUPREME COURT REPORTS                  [2015] 15 S.C.R.


A     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
 B 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
 C 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
 D R;Jainst him without bringing his legal heirs on record. The
   status quo order passed 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
 E 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
 F 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
 G giving consent by them to the interim orders dated 16.06.2006
   and 13.01.2010 does not and cannot 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
 H
 BENGALAMBUJAHOUSING DEVELOPMENT LTD. v.                            445
 PRAMILASANFUI AND ORS. [V. GOPALA GOWDA, J.]

learned senior counsel appearing on behalf of the appellant, A
BengalAmbuja Housing Development Ltd. thatthe High Court
had failed to consider the scope of the principle of /is 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. B
121of1962. The Information Slip issued bytheAlipore 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       C
counsel appearing on behalf of the respondent- Receiver
contends that the appellants presently do not have the locus
standito challenge any subsequent orders passed in the Title
Suit No. 121 of 1962. The property in dispute, upon wtiich the
claim is made by them, being a portion of the suit property is      D
governed by the principle of /is 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           E
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      F
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 the suit property could not have been transferred in
favour of the appellant Housing Board during pendency of the        G
restrain order. Therefore, it is urged by the learned senior
counsel th1!1t 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.
                                                                    H
446         SUPREME COURT REPORTS                 [2015] 15 S.C.R.


A           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
B     produced before tis jn 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
      ir these appeals.
         17. We agree with the contentions advanced by the
C 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 attai.ned finality as no appeal has been filed questioning
D t~e correctness of the same. By order dated 07 .07 .2006
  1 1assed 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
E 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
F transferring the suit property. A perusal of "Annexure P/1 O"
  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
G 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
  BEN GALAM BUJA HOUSING DEVELOPMENT LTD. v.                       447
  PRAMILA SAN FU I AND ORS. [V. GOPALA GOWDA, J.]

suit schedule properties by way of amendment to the plaint A
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 B
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 c
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 D
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.                             E
      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 F
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 G
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.
                                                                    H
448         SUPREME COURT REPORTS                  [2015] 15 S.C.R.


A           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 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
 B    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.-
 c              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-
 D         (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,
 E         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
 F         this Act is to be , or 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
 G 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.
 H the suit schedule property in dispute cannot be the subject
  BENGALAMBUJA HOUSING DEVELOPMENT LTD. v.                          449
  PRAMILASANFUIAND ORS. [V. GOPALAGOWDA, J.]

matter of partition in view of the express provisions of the West   A
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   B
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 Su/ekha Pal, referred to supra.
       20. Th·e amendment of plaint to include the suit property
of the heirs of late Gangadas Pal was done in pursuance of C
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 D
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    E
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.
      22. At the end, it was brought to our notice by Mr. Sanjay
Hegde, the learned senior counsel appearing on behalf of the F
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 G
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

                                                                    H
450            SUPREME COURT REPORTS                   [2015] 15S.C.R.


A      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
 B     Central or State Government or Statutory Boards or
       Corporations or Companies owned by either the Central or
       State governments, including the case of Ramana Dayaram
       Shetty v. The International Airport Authority of lndia 5 ,
       which was relied upon in the more recent decision of Akhil
c      Bhartiya Upbhokta Congress v. State of Madhya
       Pradesh 6 • 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
 D     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 t~e appellant Housing Board in the
 E     instant case. Thus, public interest has been adversely affected
       as a result of the arbitrary and unreasonable action on the 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
 F     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
 G the present case before us. The aggrieved parties are at liberty
   to seek the above mentioned prayer in an appropriate
   proceeding.

      5
          AIR 1979 SC 1628
 H    6
          (2011)5SCC29
  BENGAL AM BUJA HOUSING DEVELOPMENT LTD. v.                          451
  PRAM ILA SANF~ AND ORS. [V. GO PALA GOWDA, J.]

      24. Since we have answered the points formulated in             A
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 B
      allowed by holding that ex parte interim order of
      temporary injunction passed on 16.06.2006 by the
      learned Subordinate Judge, Ali pore 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 C
      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 D
      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                E
      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 Judge
      by his orders dated 03.07.2006 and 13.01.2010 at the            F
      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        G
      of.


Bibhuti Bhushan Bose                           Appeals disposed of.

                                                                      H