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2016 DIGILAW 1063 (CAL)

Shabbir Ahmed Ansari v. Sk. Mohamad Ghori

2016-12-22

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
Jyotirmay Bhattacharya, J. 1. Leave is granted to the learned advocate-on-record of the appellants to mention the name of the learned Trial Judge who passed the impugned order correctly in the memorandum of appeal. 2. This First Miscellaneous Appeal is directed against an order dated 31st July, 2015 passed by the learned Civil Judge, Senior Division, 1st Court at Howrah, in Title Suit No. 394 of 2015 at the instance of the defendants/appellants. 3. By the impugned order, ad-interim order of injunction which was passed by the learned Trial Judge on 31st July, 2015 was made absolute. 4. The legality of the said order is under challenge in this appeal. 5. Let us now test the legality of the said order in the facts of the instant case. 6. The plaintiffs filed a suit for partition against the defendants in respect of the suit premises. After filing the said suit, the plaintiffs filed an application for temporary injunction praying for an order for restraining the defendants from disturbing their possession in the suit property. An interim injunction was also sought for so that the defendants are restrained from transferring and/or alienating their shares in the suit property during the pendency of the suit. Ad-interim order of injunction was also prayed for in similar term. 7. The learned Trial Judge after recording that the plaintiffs have title over the suit property and their possession in the suit property, were threatened by the defendants and the suit property sill remains unpartitioned, was pleased to pass an ad-interim order of injunction on 31st July, 2015 by directing both the plaintiffs and the defendant nos. 1 to 5 to maintain status-quo as on that date in respect of the nature, character, possession, alienating and transfer of the suit property as mentioned in the injunction application till 14th September, 2015. The said ad-interim order of injunction was made absolute by the learned Trial Judge by the impugned order. 8. On perusal of the said ad-interim order of injunction and/or the order impugned by which the ad-interim order of injunction was made absolute, we are of the view that in a suit of this nature, the parties are required to maintain status-quo with regard to their possession in the suit property and/or the nature and character thereof till the disposal of the suit. However, we hold that restriction imposed on transfer and/or alienation of the suit property by co-owners to the extent of their share in the suit property is unjustified, as a co-owner having interest in the suit property may require money to meet his urgent need at any point of time. 9. As such, we hold that the restriction which was imposed by the learned Trial Judge on the parties' right to transfer and/or alienate the suit property to the extent of their shares therein cannot be maintained. 10. We, thus, admit the appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure and dispose of it by modifying the impugned order to this extent that the restriction which was imposed by the learned Trial Judge on the parties in transferring and/or alienating their shares in the suit property is lifted. 11. Incidentally it is clarified that in the event any of the co-sharers transfer his/her share in the suit property, he/she may put the transferee into possession of the suit property, subject to any right which may be exercised by the other party in accordance with law. 12. The appeal and the application are, thus, disposed of.