Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 752 (CAL)

Ratan Kumar Bera v. Jyotirindra Nath Bera

2015-09-07

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

body2015
JUDGMENT : Jyotirmay Bhattacharya, J. This first miscellaneous appeal is directed against an order being No. 99 dated 21st January, 2015 passed by the learned Civil Judge (Senior Division), 2nd Court at Contai, Purba Medinipur by which the plaintiffs' application for temporary injunction was rejected on contest. 2. Let us now consider the merit of the said appeal in the facts of the instant case for ascertaining as to whether the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not. 3. The plaintiffs filed a suit for partition on declaration that the deed of gifts executed by the parents of the plaintiffs in favour of their grandson viz. defendant nos. 2 and 3 were procured by the defendant no. 1 by practicing fraud, misrepresentation and undue influence upon the parents of the plaintiffs. They claimed that their father was the owner of the 'Ka' schedule property which is situated in the district of Purba Medinipur. They further alleged that the 'Kha' schedule property which is situated in State of Orissa was owned by their mother. 4. According to the plaintiffs, on the death of their parents, the plaintiffs along with their brother, the defendant no. 1 jointly inherited both 'Ka' and 'Kha' schedule properties from their predecessors-in-interest. Thus, they prayed for partition of the suit property in respect of both the "Ka" and 'Kha" schedule property by challenging the legality and/or validity of the deed of gifts through which the defendant nos. 2 and 3 are claiming title over the suit property. 5. In such a suit, the plaintiffs initially filed an application for temporary injunction in the year 2007 praying for temporary injunction for restraining the defendants from changing the nature and character of the suit property and from transferring the suit property to any stranger. The plaintiffs' said application for temporary injunction was rejected by the learned Trial Judge on 15th November, 2007. Subsequently, the plaintiffs filed the present application seeking identical reliefs by making the almost similar assertion with regard to their claim for title in respect of the suit property. The plaintiffs' said application for temporary injunction was contested by the defendants by filing a written objection. Subsequently, the plaintiffs filed the present application seeking identical reliefs by making the almost similar assertion with regard to their claim for title in respect of the suit property. The plaintiffs' said application for temporary injunction was contested by the defendants by filing a written objection. They claimed that since the parents of the plaintiffs during their lifetime transferred their entire interest in respect of both the 'Ka' and 'Kha' schedule property in favour of the defendant nos. 2 and 3 by executing the deed of gifts, the plaintiffs have not acquired any title either in 'Ka' schedule property or in 'Kha' schedule property. They further claimed that the defendant nos. 2 and 3 are in possession of the suit property and the plaintiffs are not in possession in any of the suit properties. 6. The learned Trial Judge after considering the pleadings of the respective parties rejected the plaintiffs' said application for temporary injunction by holding, inter alia, that though the plaintiffs have a prima facie case to go for trial but the balance of convenience and inconvenience are in favour of the defendant nos. 2 and 3. 7. Accordingly, the learned Trial Judge dismissed the plaintiffs' said application for injunction. While rejecting the plaintiffs' said application for temporary injunction, the learned Trial Judge also recorded that the plaintiffs' identical application for temporary injunction was rejected by the Learned Trial Judge earlier on 15th November, 2007. 8. The legality and/or propriety of the said order passed by the learned Trial Judge is under challenge in this appeal at the instance of the plaintiffs. 9. Having regard to the settled position in law that the principle of res judicata also applies at the interlocutory stage, we by following the decision passed by this Hon'ble Court in the case of Bank of Borada v. Fishco reported in AIR 1975 Cal 225 hold that the subsequent application for injunction which was filed by the plaintiffs, is barred by the principle of res judicata as the plaintiffs' earlier application for injunction for similar relief was rejected by the learned Trial Judge earlier on contest. 10. Accordingly, we find no merit in this appeal. The appeal thus, stands dismissed. 11. 10. Accordingly, we find no merit in this appeal. The appeal thus, stands dismissed. 11. It is made clear that the findings which we have arrived at while dismissing this appeal, are all tentative findings of the Court for disposal of this appeal only, as such, the Learned Trial Judge will consider and dispose of the suit on its own merit without being influenced by any of the observations made herein above. 12. Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance with all formalities immediately.