Suprabhat Ghosh vs Ashok Kumar Ghosh & Ors

Shampa Sarkar, J

This revisional application has been filed by the plaintiff No.1/appellant being aggrieved by an order dated November 28, 2019 passed by the learned Additional District Judge, Fast Track Court, 6th Court at Alipore, District‐24‐Parganas (South) in Misc. Appeal No.5 of 2019 arising out of an order dated November 28, 2018 passed by the learned Civil Judge (Junior Division), First Additional Court at Alipore in Title Suit No. 8235 of 2011. The learned Trial Judge considering the case of the plaintiffs and held that until and unless it was adjudicated whether the "B" schedule property fell under Dag No.463 or 464, the injunction could not be granted as any injunction may give rise to complexity in future and also lead multiplicity of proceeding which was not beneficial to either of the parties. Aggrieved, the petitioner has preferred the Misc. Appeal No.5 of 2019. The said Misc. Appeal was allowed by setting aside the order of the learned Trial Judge and both the parties were directed to maintain status quo over "A" and "B" schedule properties of the plaint with the observation that the plaintiffs could not be allowed to raise any construction on the said schedule properties. The learned Additional District Judge held that the plaintiffs could not be allowed to make any construction on the suit properties, "A" schedule as also and "B" schedule, as any construction would cause damage to the property and in protection of the said properties, the learned Court of appeal below directed both the parties to maintain status quo over "A" and "B" schedule properties.

It is a settled principle of law that the Courts while deciding whether injunction should be granted or not should consider prima facie case, balance of convenience and inconvenience as also irreparable loss and injury.

Having gone through the records, it appears that the plaint case is that the defendants have encroached into the "B" schedule property, which is a part of the Plot No.463 and the plaintiffs are the owners of the said plot. Thus plaintiffs filed the suit praying for declaration of the title over the "B" schedule property and an injunction restraining the defendants from encroaching into the "B" schedule property. An application for temporary injunction was filed with a prayer restraining the defendants from encroaching into the "B" schedule property which was rejected by the learned Trial Judge. For convenience, "A" and "B" schedule properties are set out hereunder:

"SCHEDULE 'A' ABOVE REFERRED TO

All that piece and parcel of 03 decimals of Bastu land out of 10 decimals recorded in R.S. and L.R. dag no.463 under R.S. khatian no.101 and L.R. Khatian no.315 AND 03 decimals of Doba out of 16 decimals in R.S. and L.R. dag no.467 under R.S. khatian no.81 and L.R. Khatian no.315 in total 6 decimals of bastu land and doba in Mouza‐Makhalia, J.L. no.44, P.S. Bishnupur, Dist : South 24 Parganas, within the jurisdiction of this Ld. Court.

SCHEDULE 'B' ABOVE REFERRED TO

All that piece and parcel more or less 75 sq.ft. of strip of land measuring 2'6'' (two feet six inches) on the eastern side and 60 ft. in length and two lines of the strip of land thereafter coincided on the western side which is a part of 'A' schedule property and the same has been shown in the annexed sketch map."

From the averments in the written statement of the defendants, it appears that the defendants have admitted the title of the plaintiffs on Plot No.463 and have claimed title and possession over the Dag No.464.

The defendants have said that the plaintiffs were trying to encroach from the northern side into the land of the defendants in Dag No.464 measuring 200 sq.ft. In the written objection to the application for temporary injunction the defendants' case is that although the Dag No.463 measured 8.96 decimals but in the record of rights the same was recorded as 9 decimals. The defendants are the owners of contiguous southern side of R.S. Dag No.464 which as per the record of rights was 8 decimals but as per Mouza map the Dag measures 8.62 decimals. That the disputed "B" schedule property was near the northern wall of the two‐storied building in R.S. Dag No.464. Thus, the description of the "B" schedule property as per the plaint and as per the statement of the defendants is more or less clear. The "B" schedule property falls within the northern side of the defendants' northern wall of the two‐storied building in R.S. Dag No.464. It is the claim of the defendants that through the "B" schedule property the plaintiff were trying to encroach the Dag No.464. It is the case of the defendants/opposite parties that unless there was a clear demarcation of the 75 sq.ft., the plaintiff should not be allowed to construct on the entire "A" schedule property. The learned Court of appeal below proceeded as if it was for the plaintiff to prove his title over the entire "A" schedule property while praying for an injunction over the encroached portion restraining the defendants from making any encroachment in the 75 sq.ft. of land. The learned Court of appeal below has made out a third case and has held that both the parties should maintain status quo with regard to the "A" and "B" schedule properties. Admittedly, the "A" schedule property is owned and possessed by the plaintiffs as also admitted by the defendants. The only question which arises is that whether the 75 sq.ft. of land, which is a "B" schedule property falls within the Plot No.463 or Plot No.464. The defendants have described the said area to be on the northern boundary wall of R.S. Dag No.464. Thus, the "B" schedule property as described in the plaint as also by the defendants in their written objection as also in the written statement is the bone of contention over which there is a boundary dispute. The dispute is not with regard to the entire "A" schedule property, but with regard to the 75 sq.ft. of land ("B" schedule property), thus an order of injunction over the entire "A" schedule property, that is, over the entire Plot No.463 owned and possessed by the plaintiff which the defendants also admit cannot be granted, considering the balance of convenience and inconvenience. However, this is a boundary dispute with regard to the 75 sq.ft. strip of land over the northern wall of the defendants. Thus, the defendant alone cannot be directed to maintain status quo with regard to the "B" schedule property as described in the plaint and in the written statement. The boundary dispute is admitted by the defendant. Both parties are restrained from making any construction or encroachment over "B" schedule property.

If it is found that either party has encroached in Plot No.463 or 464 by making construction, then such construction will abide by the result of the suit and parties cannot claim any equity over the same.

The observations made hereinabove are only of the purpose of determination of prima facie case and balance of convenience and inconvenience, irreparable loss and injury and the learned Trial Judge will not be influenced with the above observations.

The revisional application is, thus, disposed of.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.