Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 624 (CAL)

Eastern Coalfields Ltd. v. Kusodhaj Chakraborty

2019-05-24

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. This is an application for injunction filed by the respondent of the instant appeal praying for an order of temporary injunction restraining the defendant/appellant No.1 and its men and agents acting on behalf of it from transferring, alienating and/or changing the nature and character of the suit property till the disposal of the instant 2nd Appeal. 2. In his application, the respondent applicant has stated that he is the owner of the suit property by virtue of a deed of sale executed and registered in his favour by its erstwhile owner on 21st December, 1980. The defendant/appellant No.1 and its men and agents tried to disturb the possession of the plaintiff/applicant by encroaching upon the suit property and making endeavour to make construction thereon. In order to protect the suit property from illegal and unwarranted acts of the opposite parties, the applicant as plaintiff instituted Title Suit No.90 of 1989 in the Court of the learned Civil Judge (Junior Division), 3rd Court at Asansol praying for declaration of title and permanent injunction. After contested hearing, the said suit was decreed in favour of the applicant. The opposite party No.1 challenged the said judgment and decree before the learned Additional District Judge, 2nd Court at Asansol by preferring Title Appeal No.111 of 1998 which was subsequently renumbered as Title Appeal No.1 of 2000. The said appeal was also dismissed on contest. 3. Against concurrent finding of fact of both the trial court and the 1st Appellate Court, the Second Appeal has been admitted for hearing. 4. During the pendency of the appeal the opposite party No.1 and their men and agents tried to take forcible possession of the suit property and attempted to demolish one Magazine house standing on the suit property. Thus, the opposite parties have been trying to change the nature and character of the suit property illegally during the pendency of the instant appeal. So is the prayer for temporary injunction. 5. Mr. Suhrid Sur, learned Advocate for the applicant submits before me that the applicant is the owner of the suit property by purchase. That the opposite parties have no right, title and interest over the suit property, have been established by concurrent finding of fact by both the courts below. So is the prayer for temporary injunction. 5. Mr. Suhrid Sur, learned Advocate for the applicant submits before me that the applicant is the owner of the suit property by purchase. That the opposite parties have no right, title and interest over the suit property, have been established by concurrent finding of fact by both the courts below. During the pendency of the appeal, the opposite parties most illegally have been trying to take illegal possession of the suit property and demolish the Magazine room situated on the suit property. If the nature and character of the suit property is changed during pendency of the instant appeal, the applicant will suffer irreparable loss and injury because specific case of the applicant is that he is in possession of the suit property and the instant appeal has been admitted on the ground as to whether the learned courts below were justified in passing the decree for declaration in favour of the applicant in the absence of any prayer for recovery of possession made by him. The contention of the application is that he is all along in possession over the suit property. If at this stage, the possession in respect of the suit property and its nature and character is altered as a result of illegal and wrongful act of opposite parties, this will tell upon the fate of the appeal. 6. Mr. Raja Basu Chakraborty, learned Advocate for the opposite parties, on the other hand submits that the suit property is a part of dag No.1834 of khatian No.1358 within mouza Jamgram, P.S Baraboni, Asansol. Entire suit property was/is used as Colliery. Previously the property in suit was under possession of Gourandi Colliery and subsequently after nationalization of Coal Mines, the same is in possession of the opposite parties. Existence of Magazine house is a prima facie evidence in support of possession of the suit property by opposite parties. The learned Counsel for the opposite parties has denied the allegation of the applicant of taking illegal possession over the suit property. 7. I have heard learned Counsels for applicants as well as the opposite parties. 8. It is important to mention at the outset that the opposite parties have not filed any affidavit-in-opposition controverting the statement made by the applicant in his application for temporary injunction. 9. 7. I have heard learned Counsels for applicants as well as the opposite parties. 8. It is important to mention at the outset that the opposite parties have not filed any affidavit-in-opposition controverting the statement made by the applicant in his application for temporary injunction. 9. The suit filed by the plaintiff/applicants was decreed against the opposite parties and the said decree was affirmed by the learned 1st Appellate Court is matters of record. Against the impugned judgment of affirmation of trial court's decree, the opposite parties have filed the instant appeal. The appeal was admitted for hearing on the ground as to whether the learned 1st Appellate Court was justified in granting compensation in favour of the applicant in the absence of any such relief or prayer to that effect. 10. During the pendency of the appeal, it is absolutely necessary for the parties to maintain status quo in respect of possession and nature and character of the suit property, failing which both the parties may suffer irreparably. 11. For the reasons stated above, the application for temporary injunction is disposed of on contest directing both the parties to maintain status quo in respect of the possession, nature and character of the suit property till the disposal of the appeal.Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.