JUDGMENT Kalyan Jyoti Sengupta 1. THE plaintff has taken out above application for interim order of injunction restraining the defendants each of them from alienating, encumbering, dealing with, disposing of or from creating third party interest in respect of the demised premises and/or changing the nature and character thereof, particulars whereof are more fully described in Schedule 'A' and B' of the lease deed dated 24th March, 1970; for appointment of Receiver to make inventory of demised premises in respect of the properties described in Schedule 'A' and 'B' of the lease deed dated 25th March 1970 and to submit a report thereof and with direction upon the Receiver to take possession of the demised premises. 2. THIS application is opposed by filing affidavit. The suit in which the present application has been filed was originally instituted in or about 1985 in the Court of learned Second Assistant District Judge at Howrah for obtaining relief for recovery of khas possession by evicting the defendants, their servants, agents and assigns in respect of the suit property and other incidental relief. Subsequently, the said suit was withdrawn and transferred to this Court for its trial in 1987. The suit was filed by the plaintiff on the fact shortly put hereunder: The plaintiff is claiming to be the owner of three rolling mills foundry and workshop together with all plant, machinery, structures, equipments, fittings and fixture, shed and structure situate and lying at No. 106 and 106/1 Dharmatala Road, Salkia, Howrah (herinafter referred to said demised premises). His claim of ownership is on the strength of a registered deed of lease dated 25th March 1970, whereby leave has been granted for initial period of 10 years with two renewable option for 5 years to the defendant No.2 which was a partnership firm but apparently to the defendant No. 1 namely Dinanath Parolia. Thereafter, the possession of the said demised premises was handed over to both the defendants. On expiry of initial period of 10 years the plaintiff did not renew the period of lease though the second defendant in which the first defendant is a partner, asked for renewal. The first defendant on the other hand demanded return of the demised premises from the plaintiff. Ultimately, the aforesaid suit was filed. 3. On expiry of initial period of 10 years the plaintiff did not renew the period of lease though the second defendant in which the first defendant is a partner, asked for renewal. The first defendant on the other hand demanded return of the demised premises from the plaintiff. Ultimately, the aforesaid suit was filed. 3. AFTER transfer of the suit a Receiver was appointed for collecting occupation charges from the defendant and which has been done for a considerable period and thereafter, the payment was not made. First Receiver appointed by this Court was discharged and subsequent Receiver appointed, expired. It appears from the records in terms of the order of the Court the Receiver had been depositing amount of collection made by him from the defendants with the United Bank of India, Old Post Office Street Branch. AFTER death of the said Receiver there has been no collection. In terms of the order of the Court the bank has informed the Registrar, Original Side that a sum of Rs. 1,66,150.00/- is lying with the bank. 4. IT appears that the above suit was once dismissed for default, subsequently restored. IT further appears that the defendant also filed a suit in the Howrah Court for necessary reliefs against the plaintiff and the said suit was also transferred to this Court. The said suit was re-numbered as EOS 59 of 1987. The suit filed by the defendants was dismissed for default on 24th June 2002. There is nothing to show the said suit filed by the defendants was restored. Now the present application has been made on the ground that the demised properties being the suit properties are systematically destroyed and dissipated. It is also alleged that the defendants and each of them are trying to transfer, alienate not only the land but also plant and machinery, indeed certain parts of plant machinery have already been transferred. In other words, the defendants while remaining in possession have resorted to act of waste and total mis-management of running of the business which has been closed due to incapability of the defendant to run the same. In order to preserve and protect the suit property the aforesaid relief has been prayed alleging as above. 5. AFFIDAVIT has been filed by the first defendant for his own behalf as well as on behalf of the second defendant being the firm. In order to preserve and protect the suit property the aforesaid relief has been prayed alleging as above. 5. AFFIDAVIT has been filed by the first defendant for his own behalf as well as on behalf of the second defendant being the firm. In the affidavit it is alleged that the suit is not maintainable firstly because the plaintiff is not the owner of the property rather monthly tenant under one Taraknath Basak and others. Being the monthly tenant the plaintiff had no right and authority to sublet and/or transfer or part with possession of the tenanted premises to anyone else. It is also said in the affidavit that there has been partition suit amongst the said Basaks in this Hon'ble Court being suit No.383 of 1975. In the said partition suit, this Court passed an order of sale of the some of the suit properties. The present suit properties are part and parcel of the said joint properties as described in the said partition suit. In terms of the order of the Court by two separate deeds of conveyance dated 23rd September, 1991 the said Basaks duly and lawfully for valuable consideration transferred and/ or sold by and under three conveyances to one Smt. Suhil Kumari Parolia wife of Ram Chandra Parolia, Smt. Meena Parolia wife of the first defendant and Vikash Parolia nephew of the first defendant, who were the original nominees of the first defendant. Under such circumstances, the right, title and interest as such owner in respect of the said suit properties has passed on to the members of the family of the first defendant. Thereafter a suit has been filed in Howrah Court in 1993 being Title Suit No. 14 of 1993 for eviction of the plaintiff from the suit property upon termination of the tenancy. The said suit is still pending. However, in the affldavit-in-opposition it is admitted that there has been a lease for 10 years and the defendants are in possession. The allegations of act and wastes made by the plaintiff herein have been denied and disputed. The plaintiff though has claimed ownership of the property in paragraph 2(a) of the said application, in the lease deed it has been specifically mentioned that the plaintiff is a tenant. The allegations of act and wastes made by the plaintiff herein have been denied and disputed. The plaintiff though has claimed ownership of the property in paragraph 2(a) of the said application, in the lease deed it has been specifically mentioned that the plaintiff is a tenant. In paragraph 20 it is claimed that the plaintiff is a thika tenant and the erstwhile owner of the said premises being the Basaks, were superior landlord, and their right, title and interest have vested with the State of West Bengal under the provisions of Acquisition and Regulation of Thika Tenancy Act. Under such circumstances, the said relation of the first defendant being the vendee has not acquired any right, title and interest. 6. LEARNED counsel Mr. Bachawat for the plaintiff submits that it is an admitted position that the said suit property was let out under deed of lease for a period of 10 years and the defendants are in possession and it will appear factually that there is no existence of the plant and machinery in the premises demised in favour of the second defendant. On expiry of the period of lease the defendants have no right to remain in possession therefore, this property is absolutely in medio, that means total absence of protection preservation and lack of maintenance. Hence, the interim order already passed must be confirmed and the Receiver already appointed should be directed to take over possession. Mr. Swapan Kumar Mallick appearing for the defendant submits that in view of transfer of ownership of the property in question and since the members of the family of the first defendant have become the owner, the plaintiff has no right, title and interest therein nor it can recover possession from the owner. The present application has been filed in order to create defence in eviction suit filed by the said persons who are the owners of the said suit property in terms of the order of the sale of this Court. No order of injunction nor any appointment of Receiver can be made as against the real owner as that would amount to dispossession or eviction before the suit is decreed. 7. No order of injunction nor any appointment of Receiver can be made as against the real owner as that would amount to dispossession or eviction before the suit is decreed. 7. HE submits that even assuming the plaintiff is having locus to file the suit for eviction still then the suit cannot be maintened under the provisions of West Bengal Premises Tenancy Act 1956 (hereinafter referred to as the said Act) inasmuch as admittedly, the lease in relation to a premises was for 10 years which is less than 21 years as such the second defendants are the monthly tenant and no notice under section 13(6) of the said Act, has been given. When the suit is not maintainable no interim relief can be granted. 8. UPON hearing the learned counsel for the parties and going through the pleadings and documents annexed thereto I find the following facts are admitted: (i) Lease was granted by the plaintiff covering the suit property ostensibly to first defendant but in reality to the defendant No.2 for a period of 10 years (ii) The possession was taken by the defendant No. 1 of the entire demised property (iii) The defendant No. 1 at one point of time on expiry of initial period of 10 years asked for renewal which was refused (iv) Suit for eviction was filed by the plaintiff (v) The defendants have also filed suit which was prior one in the appropriate Court at Howrah (vi) Both the suits were transferred to this Court and have been registered as Extraordinary Suit (vii) Both the suits were dismissed for default, however, the plaintiffs suit was restored on application being made (viii) During pendency of the suit Receiver was appointed for accepting the occupation charges being equivalent to the Municipal rent reserved and the same was being deposited (ix) There has been order of sale of the properties in a partition suit as stated earlier and the conveyance have been executed in favour of the relation of the first defendant (x) The said relation of the first defendant has filed eviction suit against plaintiff Therefore it emerges from the admitted fact that plaintiff is having some right, title and interest prima facie, of course, plaintiff is claiming a thika tenancy in respect of the suit property however, that is yet to be decided by this Court. I am of the prima facie view that the plaintiff has locus to file the present suit and such locus has been accepted by the relations of the defendants who have filed the eviction suit. When the deed of lease has not been denied and disputed, and further factum of possession having been taken pursuant to the lease, though the same has been denied and disputed, I think that the plaintiff has every right to recover the property which has been demised in terms of the said deed of lease. 9. ON earlier occasion interim order was passed and obviously Court found prima facie that the suit could be maintained. As such at this stage, for considering grant of interlocutory relief I hold that the suit is maintainable of course I hasten to add that this prima facie finding will not be binding at the time of trial of the suit. 10. IT is not clear who (is) are real owners of the land, plants and machineries whether the Basaks were owner or subsequently the members of the family of the plaintiffs have become owner or the plaintiff as the owner of the plant and machinery or the plaintiff was a thika tenant of the entire properties. These are the questions which are to be gone into in the present suit. On 22nd December 2008 interim order was passed appointing Mr. Prabir Sankar Bose, Advocate for making inventory of the plant and machinery lying at the said premises and interim order of injunction was also passed restraining the defendants each of them from alienating, encumbering, dealing with, disposing of or from creating third party interest in respect of the premises and that said interim order is continuing till hearing of this application. Now question is whether the aforesaid interim order should be confirmed or not. I am of the view that it should be confirmed when balance of convenience and inconvenience is weighed I can feel that the defendant does not stand to suffer as they are in possession. It will not disturb their possession. I am of the prima facie view that the defendants and each of them through their relation cannot claim any right to resist the claim of the plaintiff as the relations if they are found to be the real owner, may get an eviction decree against the plaintiff. It will not disturb their possession. I am of the prima facie view that the defendants and each of them through their relation cannot claim any right to resist the claim of the plaintiff as the relations if they are found to be the real owner, may get an eviction decree against the plaintiff. When the defendents and each of them came into suit property their relations were not the owner, and as such they are obviously under the law answerable to the plaintiff. The defendants and each of them of their own right has to resist the claim of the plaintiff both at the interlocutory stage as well as at the final stage. 11. ON the other hand, if the order of injunction is not confirmed then there is likelihood of transferring, alienating and parting with possession of the suit property and in that case third party right would be created resulting multiplicity of the judicial proceedings. 12. HENCE, considering the aforesaid factual situation and probabilities the interim order passed is confirmed. The Receiver already appointed has been given direction to make inventory if it is done same shall be kept on record if not done shall be completed. I, direct the Receiver to take symbolic possession of the property in question until further orders of this Court. However, he will not disturb the physical and actual possession of the defendants and each of them. Thus, this application is disposed of. Application disposed of.