Indumati Maity and Another vs Priyabrata Maity and Another

Prasenjit Mandal, J.—This application is at the instance of the plaintiffs/appellants and is directed against the Order dated April 16, 2013 passed by the learned Additional District Judge, 1st Court Howrah in Misc. Appeal No. 129 of 2011 thereby affirming the Order No. 40 dated May 7, 2011 passed by the learned Civil Judge (Junior Division), 2nd Court, Uluberia in Title Suit No. 401 of 2004. The plaintiffs filed the aforesaid suit for declaration, injunction and other reliefs. Subsequently, they filed another application for mandatory injunction contending that the defendants had forcibly dispossessed them from the suit property and put a padlock restraining the plaintiff from entering the suit property. So, the plaintiffs have preferred for mandatory injunction for removal of the padlock restoring the possession of the plaintiffs.

Upon due consideration of the submissions of the learned Advocates of both the sides, the learned Trial Judge has held that the plaintiffs'' title over the suit property is to be decided. Without any decision to that effect, it is not possible to consider the relief sought for by the plaintiffs. Therefore, the prayer for ad interim mandatory injunction was refused. Being aggrieved, the plaintiffs preferred the aforesaid misc. appeal being Misc. Appeal No. 129 of 2011 and the said misc. appeal was also dismissed by the impugned order. Being aggrieved, this application has been preferred.

Having heard the learned Counsel for the parties and on going through the materials on record, I find that both the Courts below have come to the concurrent findings that in absence of evidence in the positive form, it cannot be decided whether the plaintiffs have right, title and interest over the suit property and if they are entitled to get possession over the suit property and as such, they were inclined to grant any reliefs. The First Appellate Court has discussed the materials tendered by the petitioners, such as, order of the writ court directing the police not to disturb the possession of the writ petitioners by the private respondents. The police record submitted in G.R. No. 1430 of 2010 upon enquiry done on the basis of complaint lodged by Indumati Maity on July 24, 2010 does not disclose the plaintiffs were out of the suit property and that their rooms had been kept under lock and key.

The learned Appellate Court has also observed that the police report did not find that the plaintiffs/appellants were out of the suit property and that their rooms had been kept under lock and key by the defendants.

Under the circumstances, the Appellate Court has declined to interfere with the order passed by the learned Trial Judge and held that the prayer for mandatory injunction should not be granted at this stage and thus, she has affirmed the order passed by the learned Trial Judge.

Having considered the above findings and the fact that, prima facie, the plaintiffs have not shown exclusive possession of the rooms in question, unless, evidence is tendered, it is difficult to come to a clear finding that the plaintiffs/appellants/petitioners herein were in exclusive possession.

Under the circumstances, the concurrent findings arrived at by the Courts below should not be interfered with in exercising the jurisdiction under Article 227 of the Constitution.

Accordingly, I am of the view that the impugned order does not suffer from perversity and that there is no scope of interference.

The application is, therefore, dismissed.

Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.