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2019 DIGILAW 259 (CAL)

BINAY RANJAN PAL v. GITA RANI JANA

2019-02-22

HIRANMAY BHATTACHARYYA

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JUDGMENT : Hiranmay Bhattacharyya, J. 1. The instant application under Article 227 of the Constitution of India is at the instance of the plaintiffs in a suit for declaration of title and for further declaration that the deeds being No.8660 and 8661 both dated 18th December, 2013 executed by defendant no.3 in favour of the defendant nos.1 and 2 be declared as illegal and void and for permanent injunction. 2. The case as made out in the plaint is that Rani Laha obtained 'Ka' Schedule property by virtue of a registered deed of partition being no.9115 dated 09-06-1992. Rani Laha was married with defendant no.3 and she died issueless. As Rani Laha obtained the property by way of inheritance from her mother, the defendant no.3 did not inherit any share in her properties upon her death. The property thus devolved upon the brothers and sisters of Rani Laha who are the plaintiff nos.1 and 2 and proforma defendant nos.4 and 5 in the suit. The defendant no.3 do not have any right, title and possession over the suit property but have executed two registered sale deeds being no.8660 and 8661 respectively both dated 18-12-2013. Since, the defendant nos.1, 2, and 3 have threatened to dispossess the plaintiff from the suit property and are trying to change the nature and character of the suit property, the instant suit has been filed by the petitioner herein. 3. In connection with the said suit, the plaintiffs filed an application for injunction praying for an order of temporary injunction restraining the defendant nos.1 and 2 from disturbing the peaceful possession of the plaintiffs in respect of the suit property as well as from changing the nature and character of the same. 4. The defendant nos.1 and 2 contested the application for injunction by filing a written objection denying the material allegations contained in the injunction application and by contending that Rani Laha along with her brothers and sisters executed the deed of partition being no.9115 dated 10-06-1992. According to schedule 'Gha' of the said deed, Rani Laha obtained 'A' schedule property. Upon the death of Rani Laha the said property devolved upon her husband i.e. the defendant no.3 and defendant no.3 is in possession of the same as owner thereof. The name of the defendant no.3 was recorded in Khatian no.1936 in the Record of Rights. According to schedule 'Gha' of the said deed, Rani Laha obtained 'A' schedule property. Upon the death of Rani Laha the said property devolved upon her husband i.e. the defendant no.3 and defendant no.3 is in possession of the same as owner thereof. The name of the defendant no.3 was recorded in Khatian no.1936 in the Record of Rights. It was further contended that the entire property of Rani Laha was not obtained from her mother. 5. However, despite service no one appears to oppose the instant civil revisional application. 6. The Learned Trial Judge by an order being no.12 dated 25-02-2015 rejected the application under Order 39 Rule 1 & 2 of the Code of Civil Procedure on contest without cost upon holding that the plaintiffs are not in possession of the suit property. It was further held that the plaintiffs did not produce any scrap of paper to suggest that the plaintiffs are in possession of the suit property. 7. Being aggrieved by the rejection of the application for temporary injunction, the plaintiffs preferred a Misc. Appeal being no.22 of 2015 before the Learned Additional District Judge, 1st Court at Contain. The Learned Additional District Judge, 1st Court at Contain, however, dismissed the said appeal on contest by a judgment dated 17-02-2017. It was held by the Learned Court of Appeal below that the 'A' schedule property as well as the other properties lost their character as inherited property. It was further observed that there is no document on record to show that the plaintiffs are in possession of the suit property. 8. Being aggrieved by the judgment dated 17-02-2017 passed by the Learned Court of Appeal below in Misc. Appeal No. 22 of 2015, the plaintiffs have preferred the instant application under Article 227 of the Constitution of India. 9. I have heard the learned advocate appearing on behalf of the petitioner and have perused the materials available on record. The learned advocate for the plaintiffs/petitioners herein has failed to bring to the notice of this court any document in support of the plaintiffs' claim that they are in possession of the suit property. The learned Judges of both the Courts below have concurrently held that the plaintiffs are not in possession of the suit property. The learned advocate for the plaintiffs/petitioners herein has failed to bring to the notice of this court any document in support of the plaintiffs' claim that they are in possession of the suit property. The learned Judges of both the Courts below have concurrently held that the plaintiffs are not in possession of the suit property. On the contrary, the Learned Judges of both the courts below held that the suit property is recorded in the name of the defendant nos. 1 and 2. The said concurrent finding of fact cannot be interfered with under Article 227 of the Constitution of India in the instant case. The learned Judge of the court of appeal below further held that it is undisputed that Rani Laha obtained "Ka" schedule property as per Partition Deed. 10. The question as to whether the property devolved upon the brothers and sisters of Rani Laha upon her death or the same devolved upon her husband is required to be decided upon taking evidence in the suit. In my view, justice will be sub-served in the instant case if the defendant/ Opposite party Nos. 1 and 2 are restrained from dealing with or disposing of the suit property and /or from creating any third party rights in respect thereof till the disposal of the suit since there are rival claims to the title of the suit property. 11. The defendant Nos. 1 and 2 are hereby restrained by an order of injunction from transferring, alienating, dealing with or disposing of the suit property and from creating any third party rights in respect of the suit property till the disposal of the suit. 12. The Revisional Application is thus disposed of by modifying the judgment and order dated 17-02-2017 in the manner as indicated above. There shall be no order as to costs.