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2016 DIGILAW 33 (CAL)

Chanchal Bhowal v. Biplab Howal

2016-01-13

JYOTIRMAY BHATTACHARYA, SHIB SADHAN SADHU

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. At the time when the application for stay filed by the appellant in connection with this appeal is taken up for hearing, we are requested by the learned counsel appearing for the appellant and the respondent no. 1 for disposal of the appeal itself on merit, on the basis of the materials available before us. We are also informed by the learned advocate for the appellant that all the papers which are necessary for disposal of the appeal, are annexed to the stay application. 2. Accordingly, on his prayer, we have decided to take up this appeal for hearing by dispensing with the requirement of filing paper book. We are also informed by the learned advocate of the appellant that notice was sent for effecting service of notice of appeal upon the respondent no. 2 but we are unable to ascertain the fate of such service from the affidavit-of service which is filed by the appellant in Court today. 3. Be that as it may, we find that the respondent no. 2 did not challenge the order of injunction passed by the Learned Trial Judge. Thus, we have no hesitation to hold that he has accepted the order of injunction passed by the Learned Trial Judge. Since he is not aggrieved by the said order and has also not filed any appeal, we feel that this appeal can be decided even in the absence of the said respondent no. 2 who did not even contest the injunction proceeding before the Trial Court. 4. We find from the record that the Learned Trial Judge passed an ad interim order of injunction on 11th December, 2013 directing the parties to maintain status quo as on that date in respect of the suit properties as regard existing possession for a limited period and thereafter the said interim order of injunction was extended from time to time and ultimately the said interim order was made absolute by the impugned order dated 22nd April, 2015. 5. The legality and/or propriety of the said order passed by the Learned Trial Judge on 22nd April, 2015 is under challenge before us in this first miscellaneous appeal. 6. Let us now consider as to how far the Learned Trial Judge was justified in passing the impugned order in the facts of the instant case. 7. 5. The legality and/or propriety of the said order passed by the Learned Trial Judge on 22nd April, 2015 is under challenge before us in this first miscellaneous appeal. 6. Let us now consider as to how far the Learned Trial Judge was justified in passing the impugned order in the facts of the instant case. 7. Such interim order of injunction was passed in a suit for partition filed by the plaintiff against his two brothers. Admittedly, all the three brothers are in possession jointly in the suit property. Each of the brothers has ?rd share in the suit property. Possession of all the three brothers in the suit property is not disputed. 8. Under such circumstances, we hold that the Learned Trial Judge did not commit any illegality by directing the parties to maintain status quo as regards possession in the suit property till the disposal of the suit. 9. We thus, dispose of this appeal without interfering with the impugned order. 10. The appeal is thus, disposed of. 11. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. 12. The application for stay being CAN No. 5377 of 2015 is thus, deemed to be disposed of. 13. The Learned Trial Judge is requested to dispose of the partition suit as early as possible without granting any unnecessary adjournment to any of the parties. 14. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocate for the appellant immediately.