Shankar Chakraborty and Another vs Pratap Chakraborty and Another

Bhaskar Bhattacharya, J.—This revisional application u/s 115 of the CPC is at the instance of a defendant in a suit for declaration and injunction and is directed against order dated July 31, 1999 passed by the learned Assistant Civil Judge, Senior Division, Sealdah in Misc. Appeal No. 5 of 1999 thereby affirming Order No. 39 dated February 5, 1999 passed by the learned Civil Judge, Junior Division, 2nd Court. Sealdah disposing of application for temporary injunction filed by the parties by directing the parties to maintain status quo. The opposite party No. 1 filed a suit being Title Suit No. 498 of 1994 in the Court of Civil Judge, Junior Division, 2nd Court, Sealdah praying for a declaration that the opposite party No. 1 has got every right to occupy the suit property and for permanent injunction restraining the defendants and their men and agents from causing any interference or obstruction in the peaceful enjoyment of the suit property by the plaintiff. It may be mentioned here that two rooms with a sitting room on the front side and bath and entire roof of Premises No. 22 Congress Exhibition Road, Calcutta-17 is the subject matter of the said suit.

The case made out by the opposite party No. 1 in the aforesaid suit was that the mother of the parties, since deceased, was the actual owner of the property and the plaintiff became absolute owner of the roof of the property by way of a gift dated July 19, 1988 executed by the said mother. Similarly, as regards the other portion of the suit properties, according to the plaintiff, he got the said property by virtue of a deed of settlement dated October 2, 1981 and thus claimed absolute right over the aforesaid suit property.

After filing of the aforesaid suit, the plaintiff filed an application for injunction restraining the petitioner and other defendants from causing any interference or obstruction in the peaceful enjoyment of the suit property by the plaintiff.

The aforesaid application for injunction was not only opposed by the present petitioner by filing written objection but a separate application for injunction was also filed by he present petitioner for a direction upon the plaintiff to remove the padlock or any type of obstruction from the main door of the suit property which was the only way of ingress or egress of the present petitioner to his place of business in one of the rooms on the ground floor. The defence taken by the opposite party No. 1 was that the plaintiff cannot acquire any title to the property by virtue of an unregistered deed alleged to have been executed on October 2, 1981. The further defence of the petition was that the mother of the parties executed a will thereby appointing him as executor and he was going to take step for probate the said will. The petitioner claims that by of the said will the entire ground floor has been allotted to him and as such at present the opposite party No. 1 was in occupation of two rooms in the ground floor as his licensee. The petitioner further stated that for the purpose of going into Room No. 2 as mentioned in Commissioner''s report. Room No. 1 is the only way of ingress and egress.

A learned advocate was appointed as Commissioner for the purpose of local inspection for ascertaining the actual position of the rooms situated in the ground floor and it appears from the said report that so far Room No. 2 is concerned i.e. (he room in occupation of the petitioner, in order to enter the said room one must go through Room No. I which is in occupation of the plaintiff.

The learned trial Judge on contesded hearing disposed of both the applications filed by the parties by directing them to maintain status quo. By the said order, the learned trial Judge further directed that the possessor of Room Nos. 2 and 3 can use the Room No. 1 to get access to those rooms if Room No. 1 is not in his occupation.

Being dissatisfied, the present petitioner preferred an appeal and the learned first appellate court below by the order impugned herein has modified the said order by directing the parties to maintain status quo. The learned first appellate court below further held that there was alternative passage for entering Room No. 2 and as such the petitioner should not be permitted to go through Room No. 1.

Being dissatisfied, the defendant No. 1 has preferred the instant revisional application.

After hearing Mr. Dutt appearing in support of this application and Mr. Roychowdhury appearing on behalf of the opposite party No. 1, I find that the learned court of appeal below acted illegally and with material irregularity in modifying the order passed by the learned trial Judge thereby directing the parties merely to maintain status quo over the property.

In the instant case, the plaintiff/opposite party came forward with a definite case that he had become absolute owner of the property by way of deed of settlement as well as deed of gift. The deed of settlement relates to the ground floor portion of the property whereas deed of gift confers right over the roof. So far the deed of gift is concerned, in my opinion, a prima facie case has been made out and therefore the present petitioner should be restrained from disturbing the possession of the petitioner over the roof of the property.

As regards the other portion of the suit property than roof, in my view, the petitioner had failed to prove a prima facie case of absolute ownership over the property inasmuch as the alleged deed of settlement was an unregistered deed executed by the mother of the parties during her life time and as such by virtue of such a deed, no title could pass in favour of the plaintiff. The petitioner has on the other hand come forward with a case of will executed by the mother by which the ground floor portion has been given to him. I am quite conscious that so long the probate of the said will is not granted, this court cannot say that a prima facie case has been made out in favour of the defendant as regards absolute ownership of the petitioner in the ground floor. Therefore, the fact remains that at present prima facie, both the petitioner and the opposite parties should be treated to be co-sharer of the undivided property left by the mother so far ground floor is concerned. It appears from the written objection given by the plaintiff to the application for injunction filed by the petitioner that he has admitted the possession of the petitioner in Room No. 2 where he is running a business. Even in the written objection filed by the plaintiff to the application for injunction filed by the petitioner he has described Room No. 1 as "Baitakkhana". It appears from the report given by the learned advocate Commissioner in the learned trial Court that Room No. 1 is the only passage for entering Room No. 2.

Mr. Roychowdhury appearing on behalf of the plaintiff/opposite party No. 1 tried to improve the case by relying upon the affidavit filed in this court staging that previously Room No. 2 was a garage but the other entrance of the garage has been closed and as such after closing the road facing entrance of the garage, the petitioner is trying to get entrance through Room No. 1. Since this case was not made out in the courts below, in my opinion, the opposite party No. 1 should not be permitted to make out such a new case. The learned first appellate court below has erroneously held that there is no other passages for ingress and egress for Room No. 2 although the report of the Commissioner is just the otherwise. Therefore, the said finding is based on trial misreading of Commissioner''s report which goes to show that Room No. 1 is the only passage for entering Room No. 2. In my (c)pinion, the learned court of appeal below, therefore, acted illegally and with material irregularity in restraining the petitioner, even if his case of acquiring absolute title in the ground floor through will, is found to be ultimately untrue, from entering into his room wherefrom he has been admittedly running a business. The law is now settled that one co-sharer should not be restrained from using any part of the joint property if for such restraint he is unable to use any portion which is in his exclusive occupation.

The law is further settled that where one co-sharer disputes the title of another co-sharer in respect of a portion of the property by treating the same as his own. in such a case, injunction should be granted against such a co-sharer who is asserting absolute title in denial of has co-sharer''s right (See watson and Co. vs. Ram Chund Dutt, 17 IA 110)

In the instant case, the plaintiff came forward with his case of absolute ownership in room No. 1 although he has failed to prove such case and the room No. 1 being the only passage leading to Room No. 2. in my opinion, the learned first appellate court below ought not to have modified the order of learned trial Judge. Although the order of learned trial Judge was to some extent vague, in my view, the learned first appellate court ought to have corrected the said vagueness ''by making specific order restraining the opposite party No. 1 and his men and agent from creating any obstruction to the petitioner and his men in using Room No. 1 as passage for ingress and egress towards Room No. 2. It will not be out of place to mention here that the plaintiff did not prefer any appeal against the order of the learned trial Judge wherein the learned trial Judge passed a restrain order against the plaintiff.

Mr. Roychowdhury appearing on behalf of the opposite party No. 1 lastly submitted that I should not interfere with the finding of fact arrived at by the court of appeal below in this revisional jurisdiction. As mentioned earlier, while disposing of such appeal, the learned court of appeal below did not follow the well accepted principles which are required to be followed while disposing of an appeal against an order of injunction. The learned first appellate court below in this case failed to appreciate that the case of absolute ownership by deed of settlement was on face of it impossible. Therefore, the learned first appellate court below ought to have disposed of the appeal by treating the right of the parties as that of co-sharers. The balance of convenience and inconvenience was also in favour of granting injunction against plaintiff. I, therefore, set aside the order impugned and direct the parties to maintain status quo as regards the suit property with this specific direction that so far Room No. 1 is concerned, the petitioner and his men and agent will have right of passage over it for the purpose of going to Room No. 2 and such right of passage should not be interfered with by the plaintiff. The petitioner is however restrained from disturbing possession of the opposite party No. 1 the roof of the building.

The revisional application is thus allowed to the extent indicated above. No costs.