Laily Ghosal vs Debranjan Dey & Ors

Bibek Chaudhuri, J

CAN 5645 of 2018 is an application filed by the appellant/applicant against the respondents/opposite parties praying for an appropriate order and/or direction restraining the opposite parties No.1 and 2 from disturbing the appellant/applicant in the matter of construction of the building as per sanctioned building plan at premises No.311, Becharam Chatterjee Road within P.S Parnashree.

Before dealing with the above numbered application on merit for disposal, it is necessary to record the following factual background:-

The opposite parties No.1 and 2 as plaintiffs instituted Title Suit No.17 of 2015 against the opposite party No.3 and the appellant/applicant praying for specific performance of contract and permanent injunction in the 7th Court of the learned Civil Judge (Senior Division) at Alipore. In the said suit, it was pleaded by the plaintiffs/opposite parties No.1 and 2 that the opposite party No.3 is the owner of the suit property. The opposite party No.1 is the owner of a piece and parcel of immovable property situated adjacent to the suit property. The opposite party No.3 entrusted the opposite parties No.1 and 2 to look after the suit property on behalf of her. Subsequently, in the year 1978, the opposite party No.3 expressed her willingness to sell out the suit property which the opposite parties No.1 and 2 agreed to purchase at a consideration price of Rs.75,000/-. The opposite party No.3 agreed to the proposal of the opposite parties No.1 and 2 and received earnest money amounting to Rs.18,000/-in all in installments. On payment of earnest money, the suit property was under physical possession of the opposite parties No.1 and 2. However, the opposite party No.3 failed and neglected to execute the sell deed in favour of the opposite parties No.1 and 2. They lastly approached the said owner of the suit property to complete the sell process by executing a deed of conveyance upon receiving the balance consideration money. Finally, they filed a suit being Title Suit No.7322 of 2013 for declaration of their possession and permanent injunction against the opposite party No.3. During the pendency of the said suit, the opposite parties No.1 and 2 came to know that the opposite party No.3 surreptitiously transferred the suit property by executing a registered deed of sale in favour of the appellant/applicant. This prompted the opposite parties No.1 and 2 to file Title Suit No.17 of 2015 against opposite party No.3 and the appellant/applicant who purchased the suit property by a registered deed of conveyance on 16th April, 2013 on payment of consideration money amounting to Rs.21,00,000/-.

In the said suit the opposite parties No.1 and 2 filed an application for temporary injunction against the present applicant and her vendor restraining them from creating any third party interest over the suit property and also from changing the nature and character of the suit property as well as from disturbing the opposite parties No.1 and 2 in their peaceful possession till the disposal of the said suit.

The learned trial judge while considering the prayer for temporary injunction held that Title Suit No.17 of 2015 is barred by the provision of Order 2 Rule 2(2) and 3 of the Code of Civil Procedure. Accordingly he refused the prayer for temporary injunction made by the opposite parties No.1 and 2 and dismissed the suit being not maintainable under Order 2 Rule 2(2) and 3 of the CPC.

The said order was assailed by the opposite parties No.1 and 2 in appeal being Title Appeal No.23 of 2017 in the 1st Court of the learned Additional District Judge at Alipore. The learned Judge, First Appellate Court by judgment and order dated 7th March 2017 allowed the appeal on contest. The suit was sent back to the trial court on remand for hearing of the application for temporary injunction afresh and the suit on merit.

The defendant/opposite party No.2 has challenged the judgment and order of remand passed in Title Appeal No.23 of 2017 by filing first miscellaneous appeal before this Court which was registered as FMAT No.355 of 2017.

The appeal was admitted for hearing by the Division Bench of this Court vide order No.8th May, 2017.

In the instant appeal, the appellant/applicant filed an application for stay which was registered as CAN 3327 of 2017 praying for stay of the impugned judgment and order dated 7th March, 2017 passed by the learned 1st Additional District Judge, Alipore in Title Appeal No.23 of 2017 as well as stay of further proceeding in Misc Case No.8 of 2017 arising out of Title Appeal No.23 of 2017.

The Division Bench after admitting the appeal passed an order in CAN 3327 of 2017 staying of further proceedings of Title Suit No.17 of 2015 till the disposal of the said application.

In the instant application (CAN 5645 of 2018), the applicant has alleged that she is a bona fide purchaser of the suit property on payment of valuable consideration after purchase, she obtained building plan from Kolkata Municipal Corporation. She also constructed permanent pillars on the suit property up to first floor level as per sanction plan. However, construction of a building on the suit property was stopped in view of an interim order of injunction which was passed in Title Suit No.17 of 2015. It is pleaded by the applicant that she had already accumulated building materials to raise construction on the suit property and if she is not allowed to raise construction, she will suffer huge loss. Therefore, the applicant has prayed for permitting him to raise construction over the suit property in terms of the sanctioned building plan on the undertaking that she would not claim any equity and will pull down the structure at her cost if the suit instituted by the opposite parties No.1 and 2 (Title Suit No.17 of 2015) succeeds in future.

The opposite parties No.1 and 2 filed affidavit-in-opposition against the aforesaid application. It is contended by the contesting opposite parties that while allowing the Title Appeal No.23 of 2017, the learned First Appellate Court passed an order directing both the parties to maintain status quo in respect of the nature and character of the suit property till the disposal of the opposite parties in Title Suit No.17 of 2015 and the said order is still in force. The applicant did not pray for modification of the interim order of injunction that remains in force in view of the order dated 7th March, 2017 in Title Appeal No.23 of 2017. Therefore, the present application is thoroughly misconceived and the applicant is entitled to get no relief.

The applicant in turn has filed affidavit-in-reply reiterating her case. It is further pleaded by the applicant that after purchase, she mutated her name in the record of Kolkata Municipal Corporation. She is paying corporation tax in respect of the suit property. She was raising construction over the suit property on the strength of sanctioned building plan. The opposite parties had no possession over the suit property. Only to resist the applicant from enjoying the suit property, the opposite parties filed a harassing suit with some false concocted stories.

Mr. Ghosh, learned Senior Advocate on behalf of the applicant submits that the applicant is a lawful purchaser of the suit property. She is the owner of the suit property by virtue of a registered deed of sale dated 16th April, 2013. After purchase she mutated her name with the Kolkata Municipal Corporation. She has been regularly paying taxes. She obtained building plan from the corporation and actually raised construction over the suit property by raising pillars up to the first floor level. The opposite parties did not specifically deny such construction made by the applicant over the suit property. In order to raise a building thereon, the applicant has accumulated huge quantity of building materials. If she is not allowed to raise construction, she will suffer irreparable loss. It is also submitted by Mr. Ghosh that the applicant has already given undertaking that she will claim no equity and pull down the structure at her cost if the suit filed by the opposite parties succeeds in future.

Mr. Biswajib Ghosh, learned Advocate for the opposite parties, on the other hand, submits that the opposite parties are enjoying an order of injunction in the form of status quo in respect of the nature and character of the suit property granted in Title Appeal No.23 of 2017. The said order is still subsisting. Therefore, at this stage, if applicant is allowed to raise further construction over the suit property the suit filed by the opposite parties may be infructuous.

On careful perusal of the materials on record, it is ascertained that the opposite parties instituted Title Suit No.17 of 2015 for specific performance of an oral agreement for sale of the suit property which was allegedly entered into by them and opposite party No.3 sometimes in 1978. It is also on record that the opposite parties did not take any step for enforcement of the alleged oral agreement till 2015. Of course they filed a suit against the opposite party No.3 for protection of their possession over the suit property and permanent injunction being Title Suit No.7322 of 2013.

The opposite parties are totally misconceived in arguing that they are enjoying an order of injunction in the form of status quo in respect of the nature and character of the suit property. The interim order of injunction which was granted in Title Suit No.17 of 2015 had lost its force upon rejection of the application for temporary injunction by the learned trial court vide order dated 13th January, 2017.

The learned Judge in First Appellate Court revived the said order by his judgment and order dated 7th March, 2017. However, on admission of the instant appeal, the said order is now not in force. I have carefully considered the rival contention of the parties. It is already on record that the opposite parties have claimed specific performance of an oral agreement for sale allegedly entered into by and between them and opposite party No.3 in the year 1978 after a lapse of about 37 years. Even assuming that the opposite parties were requested by the original owner of the suit property to look after the same, it does not establish even prima facie lawful possession of the suit property by the opposite parties. On the contrary, the applicant is the bona fide purchaser of the suit property. She has mutated her name with the Kolkata Municipal Corporation. She obtained sanction plan from the corporation. It is not disputed that she raise construction of pillars up to first floor level over the suit property on the basis of sanctioned plan. The applicant has also given an undertaking that she will not claim any equity and pull down the structure at her cost if the suit succeeds in future.

Considering balance of convenience and inconvenience of the parties, I am of the view that the applicant is entitled to get relief on the basis of her prayer made in the instant application.

Accordingly, CAN 5645 of 2018 is allowed on contest, however without cost.

The applicant is permitted to raise further construction over the suit property strictly according to sanction building plan on condition that she cannot claim any equity over the suit property as a result of such construction and will pull down the entire structure at her own cost if the suit succeeds in future.

Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.