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2000 DIGILAW 361 (CAL)

ALEKHYA GHOSAL v. MATRI SANGHA JANAKALYAN ASHRAM

2000-07-21

BASUDEVA PANIGRAHI

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BASUDEVA PANIGRAHI, J. ( 1 ) THIS revisional application is directed against an order passed by the learned District Judge, Alipore, in Misc. Appeal No. 209/2000 dated 13th June, 2000, refusing to grant an order of injunction by the learned Civil Judge, Senior Division, Alipore, in Title Suit No. 100/2000. ( 2 ) THE plaintiff/opposite party which is a charitable institution has filed a suit before the learned Civil Judge, Senior Division, Alipore for a decree for declaration of title that it is the absolute owner of the suit property described in Schedule 'b' to the plaint and also further a decree for declaration that the defendants have no manner of right, title, interest and possession in the suit property and further for a permanent injunction restraining the defendants, their men and agents from disturbing the plaintiff's possession in any manner whatsoever in enjoying the suit property. The plaintiff/opposite party has claimed the title on the basis of adverse possession against the defendant/opposite party. The learned trial Court has further directed to serve notice but declined to record the interim order. Therefore, the plaintiff being aggrieved by and affected with the refusal of injunction, filed an appeal before the learned District Judge and moved for ad interim order of injunction. The learned appellate Court granted ex parte injunction and fixed the matter to 14th July, 2000 for appearance of the defendant/respondents. Since the defendant/respondents were aggrieved by such grant of ex parte injunction, they filed this revisional application. ( 3 ) MR. Dasgupta, learned advocate, appearing for the defendant/petitioner at the outset has drawn my attention that the plaintiff/opposite party having claimed of title on adverse possession but they do not produce any cogent and credible evidence that they have acquired title by adverse possession. ( 4 ) THEREFORE, the appeal Court without discussing the prima facie case should not have granted ex parte injunction. It has been further noted that till the acquisition of title by adverse possession has been established the plaintiff's possession should not be protected. The learned appeal Court has neither discussed about the irreparable injury nor there is any such injury proved to have been sustained by the respondents in case of grant of ex parte injunction as withhold. ( 5 ) MR. The learned appeal Court has neither discussed about the irreparable injury nor there is any such injury proved to have been sustained by the respondents in case of grant of ex parte injunction as withhold. ( 5 ) MR. Sabyasachi Bhattacharyya, learned Advocate appearing for the opposite party/plaintiff has not been able to argue for the sustaining the order passed by the appeal Court. On being asked to Mr. Bhattacharyya with regard to acquisition of the title by adverse possession, he, however, submitted that certain photographs were produced before the appellate Court which on being satisfied after observation of such photographs, granted ad interim order of injunction. ( 6 ) OF course, the tenure of ad interim order of injunction is only till 14th July, 2000, on which date it is open to the petitioners to file an application and rejoinder/affidavit-in-opposition for vacating the ex parte injunction. Since the matter is also pending before the appeal Court, I do not find it expedient to discuss the merits of the case. It is, however, incumbent upon the plaintiff/opposite party to prove the prima facie title before obtaining the order of ad interim injunction. In this case, the plaintiff in order to obtain such reliefs only relied upon certain photographs stated to have been produced before the appeal Court. These photographs, in my view, cannot be evidence of adverse title at the moment unless the plaintiff prove their adverse possession continuously against the present petitioner they cannot acquire the title against them. No further discussion with regard to merit is desirable since such matter is still to be adjudicated by the appeal Court. Suffice it to say that the appeal Court did not advert to this question and granted ex parte injunction mechanically. ( 7 ) ACCORDINGLY, I vacate the order of ex parte injunction by directing him to hear outhe matter on the date of hearing. With the above observations, this revisional application is allowed. This observation made in this revisional application shall not influence the appeal Court while disposing of the appeal. Revision allowed.