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2012 DIGILAW 509 (CAL)

Golak Dhali v. Saraswati Seal (Dhali)

2012-06-13

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. These four applications are disposed of by this common judgment and order as they involve over the same matter in issue. For the sake of convenience, the C.O. No.1493 of 2012 is taken up for decision first. C.O. No.1493 of 2012 This application is at the instance of the respondent no.8 and is directed against the Order No.2 dated March 5, 2012 and Order No.7 dated April 5, 2012 passed by the learned District Judge-in-charge, South 24 Parganas in Misc. Appeal No.111 of 2012 thereby granting an order of status quo upon both the parties in respect of the suit property and extending the said order of interim order from time to time. The petitioner is a developer and is developing the suit property as described in the schedule of the plaint on the basis of the registered Powers of Attorney. The petitioner has contended that one, Pyari Mohan Dhali, since deceased, was the owner of the land in suit along with dilapidated structure thereon and he died in 1967 leaving his wife, four sons and two daughters as legal heirs as described in paragraph no.3 of the application at page no.5. The widow of Pyari Mohan Dhali gifted her 1/7th share in the suit property in favour of her sons and the two daughters executed the deeds of relinquishment thereby divesting themselves from the suit property in favour of their brothers. In this way, the four sons of Pyari Mohan Dhali became the absolute owners of the suit property and on the basis of agreements for development, the petitioner herein started construction on the land in suit and in fact, the G+3 construction had already been done and a bank is functioning in the suit property. The promoter had to provide funds and he also took advance money from the intending purchasers and thus, the promoter is to hand over the respective flats in favour of the intending purchasers after completion. At that juncture, one daughter, namely, Saraswati Seal (Dhali) and one Ratan Mondal, son of Late Nani Mandal and Late Brajabala Mandal (predeceased daughter of Late Pyari Mohan Dhali) filed the suit being Title Suit No.4893 of 2012 against the other heirs of Late Pyari Mohan Dhali for declaration, permanent injunction and other consequential reliefs before the learned Civil Judge (Senior Division), Alipore. In that suit, they prayed for temporary injunction and while the application was moved for interim order, their prayer for ad interim injunction was rejected, but, show cause notice was issued upon the defendants by the concerned Trial Judge. Being aggrieved, the plaintiffs preferred an appeal being Misc. Appeal No.111 of 2012 before the learned District Judge, Alipore and in that misc. appeal, by the order dated March 5, 2012, the learned District Judge-in-charge directed the parties to maintain status quo in respect of the suit property till April 5, 2012 and the said order was extended subsequently. Being aggrieved by such orders, this application has been filed by the respondent-developer. Now, the question is whether the learned District Judge is justified in granting ad interim order of injunction as noted above. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that it is an admitted position that Late Pyari Mohan Dhali was the original owner of the land in suit as described in the schedule of the plaint along with structure thereon. The petitioner has contended that Pyari Mohan Dhali died in 1967 leaving the seven heirs as noted in paragraph no.3 of the said application. It is also contended by him that the wife had gifted her share in the suit property in favour of her sons and the two daughters of Pyari Mohan Dhali divested themselves by execution of the deeds of relinquishment in favour of the four sons of Pyari Mohan Dhali. Thus, the four sons in became the 16 anna owner of the suit property and on the basis of the registered Deeds of Power of Attorney, the petitioner had constructed the suit property by taking loan from the bank and also the advance money from the intending purchasers. This is apparent from annexure J to the application. Mr. Shakti Nath Mukherjee, learned Senior Advocate, appearing for the petitioner has submitted that the developer had constructed the suit property by collecting money in the aforesaid manner and the construction works had been completed and when the flats were likely to be handed over soon to the respective sons and intending purchasers and internal works, such as, installation of electric lines etc. were to be done, at that stage, the suit was filed by the plaintiffs claiming 2/7th share of the suit property. were to be done, at that stage, the suit was filed by the plaintiffs claiming 2/7th share of the suit property. Thus, he submits that the plaintiffs have failed to show prima facie case and the observation of the learned Trial Judge that there is an urgency in the matter cannot be supported. He has also contended that the observations as to balance of convenience and inconvenience as noted by the Lower Appellate Court cannot be supported and it is to be shown at the time of hearing. The petitioner is not in a position to complete the building and to hand over the possession of the intending purchasers as per agreement and as such, he is in great hardship. So, the impugned order should be vacated. Mr. Mukherjee has also pointed out that the plaintiff no. 1 being a resident of the locality did not take any step earlier when the construction was going on. But, she came at the belated stage as noted above. So, her contentions should not have been accepted by the Lower Appellate Court. On the other hand, Mr. Bidyut Banerjee, learned Senior Advocate, appearing for the opposite party has submitted that although the notice of show cause was issued upon the petitioner and the sons of Late Pyari Mohan Dhali, none has appeared in the said suit or in the misc. appeal. Nor did they file any document before the Courts below but this revisional application has been filed by the promoter incorporating many documents. So, appropriate orders may be passed for directing the Lower Appellate Court to dispose of the misc. appeal within a certain period and also to maintain the order of status quo. Otherwise, the developer would dispose of the property causing inconvenience to his clients. Mr. Banerjee has also submitted that the so-called deeds of relinquishment were not at all the deeds of such nature and on perusal of the deeds, it will appear so and as such, the contention of relinquishing rights as claimed by the sons of Pyari Mohan Dhali cannot be accepted. Thus, he supports the impugned order. Mr. Ashok Kumar Banerjee, learned Senior Advocate, appearing for the opposite party no.1 supporting the impugned order submits that the learned Lower Appellate Court has rightly granted the interim order and the extension thereon. Thus, he supports the impugned order. Mr. Ashok Kumar Banerjee, learned Senior Advocate, appearing for the opposite party no.1 supporting the impugned order submits that the learned Lower Appellate Court has rightly granted the interim order and the extension thereon. There is no delay at all on the part of the plaintiffs in filing the said suit and praying for temporary injunction. The plaintiffs have clearly stated the cause of filing of the suit. They have clearly stated that they had no knowledge of the appointment of a developer. In fact, a discussion was held regarding the shares of the parties with regard to the suit property on February 25, 2012 and when the discussion failed, the plaintiffs were compelled to institute the suit. Mr. D.K. Mukherjee appearing for the opposite party in C.O. No.1495 of 2012 submits that while the doubtful deeds were executed, the sons of Late Pyari Mohan Dhali ignored the claim of the plaintiff no.2 who is the son of the predeceased daughter, Brajabala Mandal of Late Pyari Mohan Dhali. So, the Lower Appellate Court has rightly granted the interim order. Thus, he also supports the impugned order. Having heard the above submissions and on perusal of the materials on record, I find that the petitioner has filed the copy of the deeds of relinquishment alleged to have been executed by the two daughters of Pyari Mohan Dhali. So these deeds are prima facie against the claim of the plaintiff no.1. But, the plaintiff no.2 has also contended that he is the son of another predeceased daughter of Pyari Mohan Dhali, namely, Brajabala and as such, he has his due share in the suit property. On perusal of the materials, it appears prima facie that the two other daughters of Pyari Mohan Dhali executed the deeds of relinquishment in favour of sons of Pyari Mohan Dhali and thus, prima facie they divested themselves of their right, title and interest in the suit property. So far as the share of the plaintiff no.2 in the suit property is concerned that has to be decided at the time of trial. So, at present I find that there is prima facie case to go for trial in respect of the share of the plaintiff no.2 in the suit property. So far as the plaintiff no.1 is concerned, I find that she has been residing the nearby suit property. So, at present I find that there is prima facie case to go for trial in respect of the share of the plaintiff no.2 in the suit property. So far as the plaintiff no.1 is concerned, I find that she has been residing the nearby suit property. But, she did not take steps earlier when the building was being constructed by the promoter / petitioner herein upto the G+3 level (as appearing from the Annexures at page no.142 onwards). She was very much aware when the construction was being made by the petitioner, but, prima facie, she did not take any step. Though the construction was being made on her paternal property, she has come to court only when the discussion regarding the share failed on February 25, 2012. So, the plaintiffs instituted the suit at the belated stage, when the promoter was about to complete the internal works and to hand over possession to the owners and the intending purchasers. So, prima facie it appears that the plaintiffs have failed to show the urgency in the matter of granting interim order. The plaintiffs have filed the suit when the developer had already invested huge money in raising the four storied construction, prima facie, within the knowledge of the plaintiffs. Under such circumstances, according to the decision of Mandali Ranganna & ors. v. T. Ramachandra & ors. reported in (2008)11 SCC 1 , prayer for injunction, prima facie, should have been refused by the Lower Appellate Court. So, the findings of the learned Lower Appellate Court, prima facie, cannot be supported. However, on persuasion, both the parties agree to cooperate with the Lower Appellate Court if directions are given to file written objection by one week and if the misc. appeal is disposed of within a period of two weeks hence. It may be noted herein that since the plaintiffs have claimed the 2/7th share in the suit property and as per materials on record, the owners’ shares to the extent of nine flats have been allotted, the defendants / respondents should be directed not to dispose or encumber such nine flats of the owners’ share in any way till the disposal of the misc. case. case. Accordingly, I am of the view that this application shall be disposed of by passing the following orders:- i) That the respondents shall file written objection to the application for temporary injunction within a period of one week from date and reply, if any, three days thereafter, ii) That the learned Lower Appellate Court shall dispose of the said misc. appeal within a period of two weeks hence; iii) That in order to achieve the said object, he shall not grant any adjournment to either of the parties except in extreme emergent cases; iv) That the petitioner and other respondents of the misc. appeal shall not transfer, dispose of or encumber the nine flats being the owners’ share in the suit property till the disposal of the misc. appeal, and v) That interim order of status quo in respect of the suit property as granted on March 5, 2012 and extended subsequently stands modified as indicated above. Accordingly, the application is disposed of. Considering the circumstances, there will be no order as to costs. C.O. No.1492 of 2012 In view of the above findings in C.O. No.1493 of 2012, on the selfsame reasoning, this application is also disposed of with similar observations. Considering the circumstances, there will be no order as to costs. C.O. No.1494 of 2012 In view of the above findings in C.O. No.1493 of 2012, on the selfsame reasoning, this application is also disposed of with similar observations. Considering the circumstances, there will be no order as to costs. C.O. No.1495 of 2012 In view of the above findings in C.O. No.1493 of 2012, on the selfsame reasoning, this application is also disposed of with similar observations. Considering the circumstances, there will be no order as to costs. It is hereby recorded that above findings are for the purpose of disposal of these four applications only and that while disposing of the injunction matter, the Courts below shall not swayed away by my above observations. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.