Shri Baidyanath Chatterjee vs Smt. Anima Chatterjee and Others

Prasenjit Mandal, J.—This application is at the instance of the plaintiff/appellant and is directed against the order dated August 23, 2013 passed by the learned Additional District Judge, 10th Court, Alipore in Misc. Appeal No. 390 of 2010 thereby affirming the order of refusal of injunction, passed by the Order No. 23 dated May 28, 2010 by the learned Civil Judge, 1st Court, Alipore in Title Suit No. 1777 of 2007. The plaintiff/appellant/petitioner herein filed the aforesaid suit against the defendants before the learned Trial Judge praying for a decree of declaration that the common passage as described in the schedule to the plaint for use of egress and ingress of the descendants of late Monmatha Nath Chatterjee, permanent injunction restraining the defendants from encroaching the common passage and other consequential reliefs.

In that suit he filed an application for temporary injunction praying for restraining the defendant Nos. 1 to 4 from encroaching the said common passage. An ad interim injunction was also prayed for. The learned Trial Judge, upon hearing both the sides, refused the prayer for temporary injunction. Being aggrieved, the plaintiff preferred an appeal being Misc. Appeal No. 390 of 2010 and the said appeal was also dismissed by the learned 1st Appellate Court on contests thereby affirming the order of refusal of the prayer for temporary injunction. Being aggrieved by such order, the plaintiff has preferred this application.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the dispute between the parties is over the common passage measuring 129 ft. X 12ft. running from West to East from Raja S.C. Mullick Road measuring about 33 chittacks left by the original owner, Manmatha Nath Chatterjee for common use of his descendants. While distributing his property in favour of his four sons by four separate deeds executed in 1961, he indicated that the said common passage could be used by his descendants without any let or hindrance. The plaintiff is a descendant of late Manmatha Nath Chatterjee. The dispute cropped up when the defendant Nos. 1 & 2 who are the descendants of Manmatha Nath Chatterjee, had sold their shares to the defendant No. 3 & 4, who raised the multistoried building thereon and flats were sold to different purchasers. The matter under consideration before this Bench is as to the refusal of the prayer for temporary injunction sought for by the plaintiff. The plaintiff has contended that the defendant Nos. 3 & 4 have encroached the common passage and they have staggered building materials in the passage and thus, causing hindrance to the use of the said common passage. So, the prayer for injunction has been sought for.

While rejecting the prayer for temporary injunction against the defendant Nos. 1 to 4, the learned Trial Judge has recorded that the descendants of Manmatha Nath Chatterjee got the absolute right, title and interest of enjoying, selling or transferring their respective sharers and so, it cannot be held that the defendants have no right or common use of the passage and so, the prayer for temporary injunction has been refused. While dealing with the appeal, the learned 1st Appellate Court has observed that the contesting defendants have acquired easement rights over the common passage in question and at the time of sale, covenant runs always with the land and so, the transferers cannot claim any right in respect of the passage and so, there is no merit in the misc. appeal. Thus, the learned 1st Appellate Court has held that the plaintiff has no prima facie case and the balance of convenience and inconvenience is not also in favour of the plaintiff. Thus, the learned 1st Appellate Court has held the concurrent views with the learned Trial Judge.

The learned Trial Judge has discussed the merit of the application for temporary injunction in details and in making such an elaborate discussion, he has contended that the settler himself had created easement right over the aforesaid common passage for the beneficiaries and such easement right over the common passage is an appurtenance to the respective plots without any other respective covenant. The defendant Nos. 3 & 4 being the transferees from the defendant Nos. 1 & 2 have stepped into the shoes of the transferers. Thus, the learned Trial Judge has concluded that the settler himself had settled the property to the beneficiaries with the absolute right or interest of enjoying or selling or transferring the share. The defendant No. 4 having constructed a multistoried building had transferred the flats to the respective purchasers. Prima facie, the purchasers are entitled to enjoy the benefit of the common passage. It is not the question whether they have any other separate passage or not. The learned 1st Appellate Court has endorsed the same view.

Under the facts and circumstances, this Bench finds that both the courts below have come to the concurrent findings, as to the prayer of refusal of temporary injunction, on the basis of the materials on record. Both the Courts below have considered the basic principles of granting injunction such as prima facie case, balance of convenience and inconvenience, etc. These counts are against the plaintiff/petitioner herein. In my view, the plaintiff will not also suffer irreparable loss if the prayer for injunction is refused. So, in exercising the jurisdiction under Article 227 of the Constitution of India, the concurrent findings should not be interfered with.

Therefore, this application is dismissed.

Considering the circumstances, there will be no order as to costs.

It is clarified that the learned Trial Judge shall not be swayed away by the above observations. He shall dispose of the suit on the basis of the materials placed before him by the parties. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.