Nasir Halder vs Tofik Halder and Others

Prasenjit Mandal, J.—This application is at the instance of the defendant No. 1/appellant and is directed against the Order dated January 13, 2012 passed by the learned Additional District Judge, 8th Court, Alipore in Misc. Appeal No. 537 of 2010 affirming the order dated August 18, 2010 passed by the learned Civil Judge (Junior Division), 3rd Court, Alipore in Title Suit No. 83 of 2007. The plaintiffs/opposite parties herein instituted the aforesaid suit for declaration of right, title and interest in respect of the suit property, permanent injunction and other Reliefs. The defendants are contesting the said suit by filing a written statement denying the material allegations raised in the plaint. While filing the suit, the plaintiffs filed an application for temporary injunction and upon consideration of the materials on record, the learned Trial Judge directed both the parties to maintain status quo in respect of the suit property by an interim order. Subsequently, the learned Trial Judge disposed of the application under Order 39 Rule 1 & 2 of the C.P.C. maintaining the same order as passed in the interim nature. The defendant/appellant/petitioner herein preferred an appeal being Misc. Appeal No. 537 of 2010. By the impugned order, the learned Appellate Court dismissed the said misc. appeal thereby affirming the order passed by the learned Trial Judge on the injunction matter. Being aggrieved, this application has been preferred.

Having heard the learned Advocates of both the sides and on perusal of the materials on record, I find that the learned Courts below have failed to appreciate the Defence stance properly. Admittedly, the parties are closely related and they have come from the common ancestor. The entire property measuring about 1245 decimals of land originally belonged to Md. Hasim Halder. There were several transfers of share amongst the co-sharers. The plaintiffs'' father purchased the property earmarked as S-58 and the defendants/predecessors purchased other portion marked S-59. While describing the cause title, the plaintiffs have specifically stated in the plaint that the plaintiffs reside at S-58, Marry Road, Halderpara Lane, under P.S. Metiabruz, Kolkata-700018 and the defendants reside at premises No. S-59, Marry Road, Halderpara Lane, under P.S. Metiabruz, Kolkata-700018.

It is an admitted position that both the parties to the suit inherited the ancestral properties. The defendants have contended that the original plot was partitioned into two separate allotments being S-58 and S-59. The plot bearing No. S-58 was allotted to the plaintiffs and the plot No. S-59, to the defendants. Mutation had been done accordingly with the Kolkata Municipal Corporation and separate premises numbers were allotted. This is also apparent from the cause title of the suit.

It is surprising to note that while describing the suit property, although the plaintiffs have stated in the later portion of the schedule to the plaint that the premises No. S-58 belongs to them, in the first portion of the schedule to the plaint, they have described the area of the suit property to the tune of 1245 decimals of land more or less equivalent to 7 cottah and 8 chittaks. But, this is the area over the entire plot which was divided into two allotments being S-58 and S-59. Parties are residing in their respective allotments. So, if the order of status quo as granted by the Courts below is maintained, the effect will be that order of injunction would be effective over the entire plot of the land which prevailed prior to the partition and separate allotments. The defendants have specifically contended that the respective portion of allotment is surrounded by wall and so, there is no cause of dispute.

While arguing over the matter, Mr. Partha Sarathi Banerjee, learned Advocate appearing for the opposite parties has contended that since there was an order u/s 144(2) of the Cr.P.C. in favour of the plaintiffs/opposite parties herein, it should be considered that prima facie case to go for trial has been established. With due respect to Mr. Banerjee, I am of the view that this submission cannot be accepted.

This being the position, I am of the view that the findings of the Courts below as to prima facie case to go for trial in the manner as drafted in the schedule to the plaint is not convincing at all.

If the rightful owners, i.e., the defendants are debarred from exercising their right to property, the rightful owners are likely to suffer irreparable loss. In the instant case, since the prayer for injunction was sought for over the entire plot of land, I am of the view that if the injunction is maintained, it is the defendants who are likely to suffer irreparable loss. Since, the plaintiffs are not the exclusive owners of the entire property as mentioned in the schedule to the plaint, the balance of granting injunction in favour of the plaintiffs does not lie. Therefore, I find that the impugned order suffers from perversity and in such a case, in exercise the jurisdiction under Article 227 of the Constitution of India, this Court is quite competent to interfere with the impugned order.

In that view of the matter, I am of the opinion that the concurrent findings should be set aside on the ground of perversity.

The application, therefore, succeeds and is, therefore, allowed.

The impugned order is hereby set aside.

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.