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Calcutta High Court · body

2018 DIGILAW 599 (CAL)

Karmatullah Khan v. Zafrullah Khan

2018-08-24

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : 1. The challenge in the present revisional application is at the instance of the defendants in a suit for permanent injunction restraining the defendants/petitioners from disturbing the peaceful possession of the plaintiff over the suit property. In the said suit, the plaintiff/opposite party filed an application for an ad interim injunction in the same tune as the relief of permanent injunction in the suit. The trial court refused ad interim injunction only on the premise that the plaintiff had started construction about 1½ years after obtaining sanctioned plan. The appellate court reversed such decision and granted temporary injunction, apparently on the basis that the plaintiff/opposite party had exclusive title in respect of the suit property, as well as a valid sanctioned plan to raise construction. 2. It appears that the plaintiff/opposite party produced in the courts below relevant transfer deeds not only to show the plaintiff’s title, but also to show that the predecessor-in-interest of the defendants/petitioners, namely Fazlul Khan, had transferred his share in the suit property in its entirety in favour of the outsiders. 3. However, it further appears from the submissions of the parties that a partition suit is pending at the behest of the plaintiff/opposite party himself, where the present plaintiff has sought partition of the self-same property, naturally on the premise that the property was jointly owned by the plaintiff and by certain strangers to the present suit. 4. It is well-settled that adjudication on injunction applications at the ad interim stage, has to be on the basis of the averments made in the injunction application itself, since the court does not have the opportunity of looking into the pleadings of the other side. 5. In such respect, although the plaintiff/opposite party prima facie succeeded in proving his title in respect of the suit property, by virtue of the admitted position as evident from the pending partition suit, the plaintiff is only a joint owner in respect of the suit property and the frame of the present suit would prima-facie be bad in the absence of the other co-owners. 6. 6. As such, although the appellate court was somewhat correct in holding in favour of title of the plaintiff/opposite party, but overlooked that the plaintiff had no prima facie case at least at the ad interim stage, to go for trial, in view of cloud having been cast to the maintainability of the suit for non-joinder of other co-owners. 7. This is all the more relevant since the plaintiff/opposite party claims exclusive title in respect of the suit property on the basis of a prior amicable partition, which might operate contrary to the contentions of the plaintiff in the partition suit. 8. In such view of the matter, the appellate court acted without jurisdiction in granting injunction to the plaintiff. 9. Accordingly, C. O. No. 654 of 2017 is allowed, thereby setting aside the impugned order and directing the trial court to hear out the injunction application pending before it as expeditiously as possible, without granting any unnecessary adjournment to either of the parties, preferably within September 30, 2018. 10. The present petitioners are directed to file their written objection to the injunction application in the trial court within a week from date. 11. It is made clear that the observations made herein and in the order impugned in the present revisional application would only be binding for the purpose of adjudicating the ad interim injunction and the trial court would be free to adjudicate the injunction application and the suit on merits, without being influenced by any of the observations made herein. 12. There will, however, be no order as to costs. 13. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.