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2011 DIGILAW 842 (CAL)

Kalikar Mahata v. Dibakar Kundu

2011-06-28

RAGHUNATH BHATTACHARYA

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Judgment :- Raghunath Bhattacharya, J. The hearing stems from an application under Article 227 of the Constitution of India filed by the defendant No. 1 – 6 / petitioner praying for revision of the order dated 09.02.2009 passed by learned A.D.J., 4th Court at Midnapor, District – Midnapore (West) in Misc. Appeal No. 109 of 2007 reversing the order No. 14 dated 14.09.2007 passed by learned Civil Judge (Junior Division) at Jhargram in T.S. No. 8 of 2007. Plaintiff / Opposite party No. 1 – 7 initiated Title Suit No. 8 of 2007 before the learned Civil Judge (Junior Division) at Jhargram against the opposite party No. 8 and 9 inter alia praying for declaration of their right, title and interest in respect of “Ka” schedule suit property and also for injunction restraining the defendants / petitioners from disturbing the peaceful possession and enjoyment of the opposite party No. 1 – 7 in respect of “Ka” schedule property. Learned Civil Judge (Junior Division) granted an ex-parte interim order of injunction which was subsequently vacated after contested hearing. Opposite party No. 1-7 preferred the Misc. Appeal No. 109 of 2007 before Learned D.J., Midnapore which was transferred to the A.D.J., 4th Court at Midnapore. Learned A.D.J. after hearing both side allowed the appeal on contest against the petitioner but without any cost and set aside the order No. 14 dated 14.09.2007 passed by learned Civil Judge (Junior Division) at Jhargram. Being aggrieved by and dissatisfied with the said order petitioner / defendant filed the instant revision application. Heard learned Lawyer for the petitioner. None appear on behalf of the opposite party / plaintiff. Perused the impugned order passed by learned A.D.J. Midnapore and order passed by learned Civil Judge (Junior Division), at Jhargram. Admittedly plaintiff has filed the instant suit praying for declaration of their right, title and interest in respect of “Ka” Schedule property and injunction and ancillary prayer in respect of injunction. On careful scrutiny of the order as well as the instant petition it appears that plaintiff’s name appeared in the record of right and the plaintiff name was deleted at the time of present K.B. settlement. It is needless to mention that any entry in the R.S.R.O.R and that that of L.R. record only proves that parties are in possession of the suit property. It is needless to mention that any entry in the R.S.R.O.R and that that of L.R. record only proves that parties are in possession of the suit property. The recording in the R.S. & L.R. do not prove any title in respect of property. If the instant suit plaintiff has prayed for declaration of their right, title and interest in respect of “Ka’ schedule property. Evidence yet to be adduced and at this juncture if I allow the prayer of petitioner as submitted by learned Counsel Mr. Mahato then it will amount to dispose of the entire suit in a round about way. Prima facie plaintiffs title in respect of the suit property was clouded. But the same fact does not create any title in favour of the defendant in respect of the suit property. In view of aforesaid discussion I think that the order passed by the learned A.D.J. should be modified. Civil Revision is thus disposed of. Both side is hereby directed to maintain status-quo in respect of the suit property till the disposal of the suit. There is no order as to the cost. Learned Trial Court is hereby directed to dispose of the suit as quickly as possible preferably within this year. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible.