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2018 DIGILAW 1 (CAL)

Anwar Ali Khan v. Msstt. Farida Begam

2018-01-02

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2018
JUDGMENT : 1. The appeal arises out of an interlocutory injunction passed in a suit pertaining to an immovable property. 2. The appellants are the four brothers of the first respondent-plaintiff. According to the appellants, in a previous partition suit between the two branches of the appellants’ father’s family represented by two wives, a compromise decree was passed recognising the appellants herein as the joint owners of the immovable property in respect whereof the present partition suit has been filed by the first respondent. The appellants demonstrate that there is no relief claimed in the suit challenging the compromise decree in the previous partition suit and an attempt to amend the plaint to incorporate such relief failed and even a revision challenging the dismissal of the amendment application has failed in this court. 3. The first respondent says that in course of the previous partition suit a compromise was, indeed, recorded in favour of the appellants herein, but there is no thumb impression of the mother in the document and no document evidencing that the mother had gifted the property to her four sons and to the exclusion of her daughter. The first respondent submits that it was upon the matter pertaining to the previous partition suit being brought to the notice of the first respondent in course of the present proceedings that the first respondent sought to amend the plaint. Though the amendment application was dismissed and a petition challenging such order has also failed in this court, the first respondent suggests that since a review against the order of this court is pending, the present appeal should not be disposed of or the injunction order impugned should not be undone. According to the first respondent, if the amendment application is allowed and the amendment challenging the compromise decree in the previous partition suit is incorporated, the order of injunction assailed in the present appeal would be a routine order. 4. The present appeal has been adjourned on several occasions to facilitate the first respondent to have the review petition heard. It does not appear that any meaningful steps have been taken in such regard and every time the appeal is taken up, it is repeated ad nauseam that the review petition is pending. 5. As on date, there is no challenge to the compromise decree in the previous partition suit. It does not appear that any meaningful steps have been taken in such regard and every time the appeal is taken up, it is repeated ad nauseam that the review petition is pending. 5. As on date, there is no challenge to the compromise decree in the previous partition suit. As a consequence of such compromise decree, the appellants herein are the absolute owners of the immovable property which is the subject-matter of the present suit and the first respondent herein has no manner of right therein. Even if the amendment application were to be allowed and the amendment incorporated, it would only be a challenge which is permitted to be made; the title that the appellants assert would not evaporate thereupon. 6. However, in the absence of there being any challenge to the compromise decree, the order of injunction questioned in the present appeal cannot be sustained. Accordingly, FMA 769 of 2008 and CAN 293 of 2008 are disposed of by setting aside the judgment and order impugned dated July 12, 2007. In the event the amendment application is allowed and the compromise decree passed in the previous partition suit is permitted to be challenged in the present suit, it will be open to the first respondent to apply afresh for an injunction of the kind that is vacated hereby, whereupon the trial court will consider the same afresh uninfluenced by this order. 7. FMA 1234 of 2008 is on similar lines as the other appeal recorded above. For the same reasons as indicated earlier, FMA 1234 of 2008 is disposed of since this appeal also arises out of the same order. 8. There will be no order as to costs. 9. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.