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2010 DIGILAW 916 (CAL)

Rabindra Nath Majumdar v. Ganesh Nath Majumdar

2010-08-03

PRASENJIT MANDAL

body2010
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiff and is directed against the order no.27 dated 06.01.2010 passed by the learned Civil Judge (Junior Division), Fourth Court, Howrah in Title Suit No.200 of 2007 thereby dismissing an application under Section 151 of the Code of Civil Procedure filed by the applicant. The short fact of the case is that the applicant instituted a title suit for declaration of title and permanent injunction against the opposite party nos.1 & 2 in respect of the suit property as described in the schedule of the plaint. In that suit, the applicant prayed for temporary injunction restraining the opposite parties from causing, interfering or obstructing to the plaintiff’s erectional work in the suit property on the strength of his sanctioned building plan. That prayer was allowed but the opposite party nos.1 & 2 were creating obstruction against the construction of the boundary wall by the applicant. So he sought for police help which was refused by the order impugned. Being aggrieved, this application has been preferred by the plaintiff/applicant. Mr. Das, appearing on behalf of the applicant, submits that the plaintiff purchased the suit property for his residential purpose and he constructed house thereon for the said purpose. He was able to raise boundary wall on the three sides, namely, East, South and North. But, when the plaintiff started construction of the wall towards the western side, the opposite party nos.1 & 2 raised objection not to construct any wall, although the plaintiff did not encroach any portion of the area of the opposite party nos.1 & 2. So the learned Trial Judge should have granted the prayer for intervention by police so that the boundary wall could be constructed. He also submits that the learned Trial Judge did not allow the prayer for police help on the ground that when there is a specific provision to adjudicate over the said matter an application under Section 151 of the C.P.C. does not lie. Moreover, there is no material before the Court that actually any violation has been committed. The learned Trial Judge has also held that there is no merit in the application. It is not proper because the learned Trial Judge has passed the order of injunction. On the other hand, Mr. Moreover, there is no material before the Court that actually any violation has been committed. The learned Trial Judge has also held that there is no merit in the application. It is not proper because the learned Trial Judge has passed the order of injunction. On the other hand, Mr. Roy, appearing on behalf of the opposite party nos.1 & 2, supports the order stating that there is no illegality in the order. So, the application should be dismissed. After hearing the submission of the learned Advocate for both the parties and on perusal of the materials on record, it appears that the plaintiff became the owner of the suit property by way of purchase. Thereafter, he obtained a sanctioned building plan for raising a construction of his residential house. Then, he constructed his residential house thereon. Even, he constructed the boundary wall on three sides of the suit property, namely, East, South and North. When he started construction towards the western side of his property as per sanctioned building plan, the opposite party nos.1 & 2 raised objection and for that reason he sought for temporary injunction which was granted by the learned Civil Judge (Junior Division). Thereafter, on the basis of the order of injunction when he was about to raise construction, the opposite party nos.1 & 2 raised objection and so police help was sought for. From the materials on record, I find that the plaintiff filed the Title Suit No.200 of 2007 praying for the following reliefs: “13. Thereafter, on the basis of the order of injunction when he was about to raise construction, the opposite party nos.1 & 2 raised objection and so police help was sought for. From the materials on record, I find that the plaintiff filed the Title Suit No.200 of 2007 praying for the following reliefs: “13. The plaintiff prays for:- (a) a decree of declaration that the plaintiff is the owner and occupier of the suit property mentioned in the schedule below; (b) for a further declaration that the plaintiff is legally entitled to erect his structure in the suit property according to the sanctioned Plan, which was first sanctioned on 17.2.1993 and lastly renewed on 13.1.2005 giving extension of the said Plan upto 12.1.2008; (c) Permanent injunction against the principal defendants restraining them from causing any interference and or obstruction in the plaintiff’s erectional work in the suit property on the strength of his sanctioned Building Plan till disposal of the suit; (d) Temporary injunction in aid of the permanent injunction; (e) Cost of the suit; (f) Any other relief or reliefs to which the plaintiff is legally entitled to in law and equity.” Thus, I find that by the prayer no.(c ) the plaintiff prayed for permanent injunction restraining the defendants from causing any interference and obstruction in the plaintiff’s erectional work in the suit property on the strength of his sanctioned building plan till disposal of the suit. While granting the prayer for temporary injunction, the learned Civil Judge has allowed the prayer for temporary injunction which is in the same line as made in prayer (c) of the plaint. Thus, I find that the final relief, as sought for, in the suit, has been granted by way of grant of temporary injunction. From the materials on record, it appears that the dispute between the parties is nothing but a boundary dispute. The plaintiff was able to raise the construction of the boundary wall on three sides, but the dispute began when he started construction towards the western side of his land. At that time, the opposite party nos.1 & 2 raised objection. The objection of granting injunction is to keep the property in status quo during pendency of the suit. If the plaintiff is able to raise any construction as claimed, there remains nothing for solving the dispute between the parties. At that time, the opposite party nos.1 & 2 raised objection. The objection of granting injunction is to keep the property in status quo during pendency of the suit. If the plaintiff is able to raise any construction as claimed, there remains nothing for solving the dispute between the parties. The learned Trial Judge has granted the final relief while disposing the application for temporary injunction. Such type of injunction should not be granted without considering the materials placed by both the sides at the trial. Beside the ground as disclosed in the order impugned, the prayer for police help cannot, therefore, be granted at all. Therefore, I am of the view that there is no illegality in rejecting the prayer for police help. It is also recorded here that beside the reasons stated in the order impugned, the prayer for police help cannot be granted for the reasons disclosed above. The application filed by the plaintiff cannot be entertained. It is meritless. Accordingly, it is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.