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2011 DIGILAW 1168 (CAL)

Biswapati Debnath v. Anil Chandra Naskar

2011-08-25

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiff and is directed against the judgment and order dated July 26, 2011 passed by the learned Additional District Judge, 15th Court, Alipore in Misc. Appeal No.198 of 2011 thereby reversing the order dated April 21, 2011 passed by the learned Civil Judge (Junior Division), 5th Court, Alipore in Title Suit No.1165 of 2011. The short fact is that the plaintiff / petitioner herein instituted a suit being Title Suit No.1165 of 2011 against the opposite parties for declaration of their right, title and interest in respect of the suit property as described in Schedule ‘A’ to the plaint, injunction and other reliefs before the learned Civil Judge (Junior Division), 5th Court, Alipore. The opposite parties are contesting the said suit. At the time of filing of the suit, the plaintiff filed an application for temporary injunction contending that the suit property as described in Schedule ‘A’ to the plaint is his property under plot no.1049 of Mouza Sarsuna and the defendant no.1 was the erstwhile owner of the adjacent plot no.1048 of the said Mouza Sarsuna and that the entire plot no.1048 was acquired by the State of West Bengal and the possession of the same was taken more than 30 years ago. For that reason, the defendant no.1 has no right, title and interest over the said plot. To the South and West of the suit property, there is a passage for ingress to and egress from the suit property under the plot nos.16 and 17 and this is used as passage and it is described in Schedule ‘B’ to the plaint. The plaintiff after obtaining sanctioned plan started construction and the construction was made up to the roof of the ground floor when the defendant nos.1, 2 and 3 raised objection and for that reason, the plaintiff has to take legal recourses. He filed an application under Order 39 Rule 1 and 2 at the time of filing of the suit. But the learned Trial Judge did not grant any ad interim order and for that reason, the plaintiff filed a misc. appeal being Misc. Appeal No.198 of 2011. Upon hearing both the sides, the learned Lower Appellate Court directed both the parties to maintain status quo of the suit property as well as the common passage. But the learned Trial Judge did not grant any ad interim order and for that reason, the plaintiff filed a misc. appeal being Misc. Appeal No.198 of 2011. Upon hearing both the sides, the learned Lower Appellate Court directed both the parties to maintain status quo of the suit property as well as the common passage. Being aggrieved by such orders, this application has been preferred by the plaintiff. Now, the question is whether the impugned order should be sustained. Upon hearing both the sides and on consideration of the materials on record, I find that the suit property of the plaintiff has been clearly stated in Schedule ‘A’ to the plaint appearing as Annexure ‘A’ to the plaint and it comprises the plot no.1049 under Khatian No.1388, Mouza Sarsuna and the suit passage is under plot nos.16 and 17 which runs from South to North comprising plot no.1048 of Mouza Sarsuna known as Ram Naraya Mukherjee Road and this is a 19 feet wide passage. By the application for temporary injunction, the plaintiff has prayed for ad interim injunction restraining the defendant nos.1 to 4 / respondents, their men and agents from disturbing the peaceful possession and enjoyment of the suit property and also restraining from raising any construction, blocking the common suit passage for obstruction to the ingress to and egress from the suit land. The defendants have no claim over the suit property which is marked as Schedule ‘A’ to the plaint. The plaintiff has contended that he raised up to the roof of the ground floor on the suit property described in Schedule ‘A’ but the learned Trial Judge has granted status quo in respect of both the properties as described in Schedule ‘A’ and ‘B’. Since, the defendant nos.1 to 4 / respondents have no claim / objection in respect of Schedule ‘A’ property, I am of the view that the grant of injunction has caused hardship to the plaintiff debarring him from making construction on his own land, that is, on Schedule ‘A’ to the plaint. A person having the right of ownership and sanctioned plan to raise construction, has been debarred from raising the construction. Therefore, so far as Schedule ‘A’ property is concerned, the impugned order of status quo should be set aside. A person having the right of ownership and sanctioned plan to raise construction, has been debarred from raising the construction. Therefore, so far as Schedule ‘A’ property is concerned, the impugned order of status quo should be set aside. As regards, the Schedule ‘B’ property is concerned, I find that it is a passage and this passage is disputed having rival claims. So, unless and until, evidence is recorded, it will be difficult to conclude as to who is in possession of Schedule ‘B’ property. The contention of the plaintiff is that the defendants / respondents are trying to make construction blocking the said common passage in suit for obstruction to the ingress to and egress from the petitioner in his suit property by the plaintiff as described in Schedule ‘B’. Therefore, so far as the Schedule ‘B’ is concerned, I am of the view, without discussion more, that the learned Appellate Court has rightly observed that when there is a rival claim, the object of granting injunction is to keep the property in status quo for the time being. It may be pointed out that the learned Appellate Court has granted status quo for very limited period directing the learned Trial Judge to dispose of the application for temporary injunction within a period of 30 days from the date of receiving of the L.C.R. and the order of status quo shall remain in force till the disposal of the application for temporary injunction. I do not find any perversity in the orders passed by the Lower Appellate Court so far as Schedule ‘B’ property is concerned. Therefore, I am of the view that the impugned order should be partially modified setting aside the order of status quo with regard to Schedule ‘A’ property. The revisional application succeeds in part. The parties to the suit were directed to maintain status quo as it stands today in respect of the Schedule ‘B’ property described in the plaint till the disposal of the application for temporary injunction. The other conditions relating to direction for disposal of the application for temporary injunction within the period fixed shall remain in force. The revisional application is disposed of in the manner indicated above. Considering the circumstances, there will be no order as to costs.