Satish Chandra Karmakar & Ors vs Bed Prakash Ojha

Biswajit Basu, J

Affidavit of service filed in Court today be kept with the record. Inspite of service none appears on behalf of the opposite party. The revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for declaration of title and is directed against the judgment and order dated February 9, 2007 passed by the learned Additional District Judge, Cooch Behar in Misc. Appeal No. 15 of 2006, thereby setting aside the order dated September 4, 2006 passed by the learned Civil Judge, (Junior Division), Cooch Behar, Sadar in Title Suit No. 20 of 2006.

The opposite party filed the connected suit for a decree, inter alia, for declaration of his title over the suit property. In such suit the plaintiff filed an application under Order XXXIX Rules 1 and 2, read with Section 151 of the Code of Civil Procedure praying an order of injunction restraining the defendants/petitioners from entering into the suit property till the disposal of the suit.

The learned trial Judge by the order dated September 4, 2006 disposed of the said application by directing the parties to maintain status quo as regards the nature and character and the possession of the suit property till the disposal of the suit.

The plaintiff/opposite party aggrieved by the said order preferred the connected Misc. Appeal No. 15 of 2006.

The appeal Court below by the order impugned has modified the order of the learned trial Judge by directing the plaintiff/opposite party not to sale/transfer the suit property to any other person till the disposal of the suit, but permitted him to complete the construction as per Municipal plan within shortest possible time.

The petitioners/opposite parties are claiming to be tenants of the suit property inducted by one of the co-sharer of it. The further claim of the petitioners is that the said co-sharer agreed to rehabilitate them in the newly constructed building to be constructed on the suit property after demolishing the old structure and the petitioners have been shifted to an alternative accommodation for their stay during the continuance of such construction work.

The appeal Court below took this defence of the petitioners into consideration and held that unless the new building is allowed to be constructed the petitioners cannot be rehabilitated there in terms of their claim and on consideration of such defence of the petitioners modified the order of the learned trial Judge in the manner as indicated above.

This Court does not find any illegality and/or infirmity in such approach of the learned appeal Court below in modifying the order of the learned trial Judge. The order impugned therefore does not call for any interference.

C.O. No. 2017 of 2007 is therefore disposed of by directing the learned Civil Judge, (Junior Division), Cooch Behar, Sadar to dispose of the Title Suit No. 20 of 2006 expeditiously preferably within a period of 15 months from the date of communication of this order, if the suit is otherwise ready for disposal.

No order as to costs.

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