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2012 DIGILAW 836 (CAL)

Shamser Ali v. Nilkamal Sarkar

2012-09-06

PRASENJIT MANDAL

body2012
JUDGMENT Prasenjit Mandal, J. 1. Challenge is to the judgment and order dated April 17, 2012 passed by the learned Additional District Judge, Fast Track, 3rd Court, Barasat in Misc. Appeal No.11 of 2012 arising out of the Order dated January 3, 2012 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat in Title Suit No.502 of 2010 thereby rejecting the prayer for temporary injunction. 2. On August 25, 2010, the plaintiffs/petitioners herein instituted a suit being Title Suit No.502 of 2010 for declaration, permanent injunction and other reliefs against the defendants/opposite parties herein in respect of the suit property described in the schedule to the plaint. For convenience, the declaratory reliefs and permanent injunctions as prayed for in the plaint are described below:- a) a Decree declaring that, the Plaintiffs have unfettered right, title and possession of the schedule suit property by virtue of Deed of Heba and inheritance; b) a Decree declaring that, the Defendant Nos.1 to 4 either jointly and/or severally have/has no right, title to interfere with the peaceful possession and enjoyment by the Plaintiffs in the Schedule suit property; c) a Decree for permanent Injunction against the Defendant Nos. 1 to 4 restraining them their agents and men from interfering with the peaceful possession of the Plaintiffs in the Schedule suit property in any way or manner and/or ousting Plaintiffs from the Suit Property and/or causing any waste and damage and/or changing the nature and character of the Schedule Suit Property and pass similar order in ad-interim form; 4. On the same day, i.e., on August 25, 2010, an application for temporary injunction was moved by the learned Advocate for the petitioners and the said application was fixed for hearing on September 14,2010. On that day, the defendant No.1 entered an appearance and prayed for time and accordingly, the application for temporary injunction was fixed for hearing on November 11, 2010. Then the defendant again prayed for adjournment of hearing on November 11, 2010 and so, the injunction matter was fixed for hearing on December 14, 2010. On that date, the defendant No.s 1 to 4 filed a written statement but the hearing of the application for temporary injunction was shifted to February 22, 2011. On February 22, 2011, the defendants again prayed for adjournment of hearing the application for temporary injunction and such prayer was granted. On that date, the defendant No.s 1 to 4 filed a written statement but the hearing of the application for temporary injunction was shifted to February 22, 2011. On February 22, 2011, the defendants again prayed for adjournment of hearing the application for temporary injunction and such prayer was granted. In this way, the matter is being dragged and ultimately, the hearing of injunction matter was fixed on January 3, 2012, though the plaintiffs were pressing hard for passing orders for temporary injunction. Thereafter, on January 3, 2012, the defendants as usual again prayed for an adjournment of hearing of the injunction matter and the matter was heard in part and then adjourned to February 8, 2012 for further hearing and also for hearing of another application dated November 16, 2011. Being aggrieved by the manner in which the application for temporary injunction was being dragged, the plaintiffs moved the Lower Appellate Court by filing a Misc. Appeal being Misc. Appeal No.11 of 2012 stating the circumstances and challenging the Order dated January 3, 2012 that the injunction mater is being dragged in spite of the mandate as provided in the CPC. While dealing with the Misc. Appeal, the learned Lower Appellate Court discussed the relevant provisions relating to the scope of granting injunction at the earliest opportunity and accordingly, he requested the learned Trial Judge to complete the hearing of the injunction matter in one sitting without being influenced by the order of the Lower Appellate Court. But no interim order of injunction was granted. Being aggrieved, this application has been preferred by the plaintiffs. 5. Now, the question is whether the impugned order should be sustained. 6. Having heard the learned Advocates of both the parties and on perusal of the materials-on-record, I find that both the Courts did not consider whether there is any scope of granting ad interim injunction as prayed for by the plaintiffs. The learned Trial Judge granted time to the defendants to file a written objection, etc. but did not take proper care to dispose of the application for temporary injunction at an early date. While disposing of the Misc. The learned Trial Judge granted time to the defendants to file a written objection, etc. but did not take proper care to dispose of the application for temporary injunction at an early date. While disposing of the Misc. Appeal, the Lower Appellate Court simply remanded the matter directing that the matter shall be heard in one sitting but he did not consider at all whether there is any urgency in passing an ad interim order or if immediate measures are to be taken to avoid multiplicity of suits or proceedings or to consider the fact whether if injunction is not granted for the time being by way of interim injunction, the nature and character of the property are likely to be changed. That is why this application has been preferred. 7. According to the plaint case, the suit property as described in the schedule to the plaint originally belonged to four brothers, namely, Ejahar Mondal and others. The C.S. Record of Rights had been prepared accordingly. The plaintiffs got the suit property by inheritance. But the R.S. Record of Rights and the L.R. Record of Rights had been prepared otherwise showing the tenants as in possession. The plaintiffs have contended that they did not sell their shares in the suit property and that they are in possession of the same for the last 42 years. They received a notice of mutation on the claim of transfer in favour of the defendants after two days of the date fixed for mutation and as such, they could not attend the hearing of the mutation matter. The R.S. Record of Rights and the L.R. Record of Rights had been wrongly prepared. The defendants are trying to make construction on the suit property on the basis of fictitious Deeds and wrong Record of Rights. 8. On the other hand, the defendants have claimed their right, title and interest in the suit property by purchase in the following way: (a) The suit property as described in the schedule to the plaint originally belonged to Ejahar Mondal, who transferred the same to Ramecha Bibi and Amina Bibi in 1938. (b) Then, Ramecha Bibi transferred her share to Amina Bibi by a Deed of 1963. Thereafter, in 1966, Amina Bibi transferred the suit property by several Deeds in favour of the Housing Property, who in turn sold the same to Simanti Mitra by a Deed of 1986. (b) Then, Ramecha Bibi transferred her share to Amina Bibi by a Deed of 1963. Thereafter, in 1966, Amina Bibi transferred the suit property by several Deeds in favour of the Housing Property, who in turn sold the same to Simanti Mitra by a Deed of 1986. (c) Thereafter, Simanti Mitra transferred the same to Ramakanta Pandey by two Deeds of 1988, and Ramakanta in turn transferred a portion of the suit property to Bimal Das and others by a Deed of 1992. Ramankanta also transferred other portion of the suit property to Poppy Bhattacharya and others by a Deed of 2009. (d) Bimal Das and others transferred the suit property by a Deed of 1996 to Bhaskar Sarkar, who in turn sold a portion of the suit property to Poppy Bhattacharya and others by a Deed of 2009. (e) Luxmi Sarkar inherited the rest share of the suit property from his son Bhaskar after his death. Thereafter, Luxmi Sarkar again transferred her share to Poppy Bhattacharya and others by a Deed of 2009 and they in turn transferred to Achintya Kumar Ghosh (Defendant No.4). Thus, the defendants have acquired right, title and interest in the suit property. 9. From the above facts and circumstances, I find that so far as the claims of the defendants are concerned, several transfers took place in quick succession creating a doubt whether really such transfers of the suit property took place. On the other hand, the plaintiffs have stated clearly how they got the suit property from the original owner, namely, Ejahar Mondal and his brothers by inheritance. The issue of right, title and interest could be decided only at the time of trial of the suit. Thus, I find from he rival contentions of the parties that triable issues are to be framed for decision in the final hearing of the suit. 10. The defendant No.1 filed a 144(2) Cr.P.C. case against the plaintiffs/petitioners herein in the year 2009 and an enquiry was held. He prayed for restraining the plaintiffs/petitioners herein from making any disturbance to the construction work of the petitioners of the 144(2) Case. The matter was sent to one Sumit Saha for holding a field enquiry and on spot enquiry, as per report, the defendant No.1 was found in possession of the land in uestion. 11. Mr. He prayed for restraining the plaintiffs/petitioners herein from making any disturbance to the construction work of the petitioners of the 144(2) Case. The matter was sent to one Sumit Saha for holding a field enquiry and on spot enquiry, as per report, the defendant No.1 was found in possession of the land in uestion. 11. Mr. S.P. Roy Chowdhury, learned Senior Advocate appearing for the petitioners has referred to the decision of Maharwal Khewaji rust (Regd.), Faridkot v. Baldev Dass reported in (2004)8 Supreme ourt Cases 488 and thus, he has submitted that when there is a likelihood of change of the nature of the property including alienation of the transfer, an order of status quo should be passed. So, an order of status quo should be passed to avoid multiplicity of proceedings. 12. Mr. Roy Chowdhury has also referred to the decision of Dalpat Kumar & anr. v. Prahlad Singh & ors. reported in AIR 1993 Supreme Court 276 particularly the Paragraph No.5 and thus, he has submitted that the Court is to see whether the plaintiff has been able to show prima facie case to go for trial. He has also submitted by referring the decision that the Court is to look into the conduct of the parties and to decide the probabilities of suffering injuries by either of the parties if any order of injunction is granted or not granted. 13. These two decisions are of general in nature in the matter of granting injunction and so, these two decisions are also to be considered in view of the entire facts and situations to decide whether there is a prima facie case and if there is a grave urgency in the matter. 14. By filing the application under Section 39 Rule 1 & 2 of the CPC, the plaintiffs have prayed for temporary injunction restraining the defendants from disturbing the plaintiffs’ peaceful enjoyment to the suit property. Thus, rival claims have been set out which is to be investigated. So, I am of the view that a prima facie case to go for trial has been made out and there are triable issues for decision in the suit. Thus, rival claims have been set out which is to be investigated. So, I am of the view that a prima facie case to go for trial has been made out and there are triable issues for decision in the suit. While dealing with the matters, both the Courts below did not consider whether there was any urgency in passing any order in the nature of ad interim order in view of the contention of the plaintiffs that the defendants are trying to make huge construction on the land in question and to raise a boundary wall of the suit property. 15. Therefore, I hold that it is a fit situation to consider that there is a grave urgency in passing interim order. If no such order is passed and if any construction or otherwise any work is done on the suit property, the interest of the plaintiff with regard to the suit property may be frustrated. Otherwise, multiplicity of suits/proceedings are likely to occur. 16. Therefore, I am of the view that the materials filed by the plaintiffs in support of the application for injunction are sufficient to consider that there is a grave urgency in passing an interim order of injunction in the nature of status quo. I am also of the view that both the Courts below have failed to address the issue before them for decision properly and for that reason, interference is required to correct the errors committed by the Courts below. So, it would be fit and proper to direct both the parties to maintain status quo of the suit property as it stands today for a period of four months from date. In the meantime, the learned Trial Judge shall be directed to dispose of the temporary injunction matter without fail. 17. In that view of the matter, the impugned order cannot be sustained. The application succeeds and is, therefore, allowed. 18. The impugned order is hereby set aside. 19. Both the parties are directed to maintain status quo in respect of the suit property as it stands today for a period of four months hence or till the disposal of the application for temporary injunction whichever is earlier. 20. The learned Trial Judge is directed to dispose of the said application for temporary injunction within a period of four months from date. 20. The learned Trial Judge is directed to dispose of the said application for temporary injunction within a period of four months from date. If necessary, he shall take up the matter on day-to-day basis hearing without granting any adjournment to either of the parties except in extreme emergent cases. 21. Considering the circumstances, there will be no order as to costs. 22. The above findings have been made only for the purpose of disposal of this application and while deciding the injunction matter, the learned Trial Judge shall dispose of the injunction matter independently on the basis of the materials placed before him without being influenced in any way by my above observations.