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2020 DIGILAW 278 (CAL)

Sankar Prasad Dey v. Sandip Kumar Dey

2020-02-25

SHAMPA SARKAR

body2020
JUDGMENT Shampa Sarkar, J. - The petitioner is the plaintiff in Title Suit No.443 of 2016 pending before the learned Civil Judge (Junior Division) 4th Court, Serampore, District-Hooghly. The petitioner is aggrieved by an order dated November 21, 2019 by which the application under Section 151 of the Code of Civil Procedure dated November 19, 2018 (IA/2/2019) was rejected by the learned Civil Judge (Junior Division) 4th Court, Serampore. 2. It is contended on behalf of the petitioner that the petitioner had filed a suit against the opposite party, inter alia, for a declaration to the effect that the defendant did not have any right to close the door by lock and key over the 'B' schedule property, thereby causing an obstruction to the ingress and egress of the petitioner to the ground-floor passage leading to the stair case as well as to the electric meter. The further case of the petitioner was that the petitioner as the brother of the opposite party had 1/4th share in the joint property left by the father. Title Suit No.376 of 2014 was filed by the petitioner for partition of his 1/4th share. The said title suit was pending before the learned Civil Judge (Senior Division) at Serampore. In connection with the said partition suit an application was filed by the petitioner for injunction, restraining the opposite party as also the other co-sharers from disturbing the petitioner's peaceful possession. The application for injunction was disposed of and the opposite party and other co-sharers were restrained form evicting the petitioner from the ground-floor of the suit property except by due process of law. Parties were also restrained from alienating and/or encumbering the suit property, by an order of the Hon'ble Division Bench of this Court. As the opposite party created disturbance with regard to the installation of an electric meter in the name of the petitioner, the petitioner filed a writ petition being W.P. No.13159 (W) of 2018. The said writ petition was disposed by a learned Judge of this Hon'ble Court by an order dated August 29, 2018 with the observation that as the electric supply had already been provided to the petitioner, the writ petition had become infructuous. 3. The said writ petition was disposed by a learned Judge of this Hon'ble Court by an order dated August 29, 2018 with the observation that as the electric supply had already been provided to the petitioner, the writ petition had become infructuous. 3. Another suit being Title Suit No.442 of 2016 was filed by the petitioner for declaration of the right of the petitioner to install an overhead water tank over the roof of the suit property. In a report filed by a learned Advocate-Commissioner in Title Suit No.442 of 2016, the existence of an eastern side entrance gate for entering into the suit property from the main road, found mention. Thereafter, the petitioner filed Title Suit No.443 of 2016. The petitioner filed an application for local inspection of the suit property on the ground that the existence of the eastern side gate and the electric meter should be ascertained. The application for local inspection was rejected and aggrieved by the said order the petitioner had preferred a revisional application before this Court. In Title Suit No.443 of 2016, the petitioner filed another application under Section 151 of the Code of Civil Procedure praying for a direction upon the defendant/opposite party to handover the duplicate keys of the main door of the eastern side boundary of the suit premises to the plaintiff/petitioner, so that the plaintiff/petitioner had access through the door situated on the eastern side of the boundary wall to the electric meter board position. The learned Civil Judge (Junior Division) 4th Court, Serampore, rejected the application under Section 151 of the Code of Civil Procedure by the order impugned. Aggrieved the petitioner preferred this revisional application. 4. Mr. Ashok Kumar Banerjee, learned Senior Advocate, appearing on behalf of the petitioner submitted that the learned Court below erred in rejecting the application by not allowing the petitioner to get a duplicate key for a free access through the eastern side main entrance door in order to access the electric meter. He contended that the petitioner being a co-sharer of the property had a right to every inch of the property and the opposite party could not restrain the petitioner from enjoying access to the property through the said eastern side gate. That the learned Court below could not have rejected the application on the ground that other entrance doors were opened for free access of the petitioner. 5. Mr. That the learned Court below could not have rejected the application on the ground that other entrance doors were opened for free access of the petitioner. 5. Mr. Saptangshu Basu, learned Senior Advocate, appearing on behalf of the opposite party submitted that the application was filed by the petitioner for entry through the eastern side gate although, the petitioner had access to the property through three other entrance doors and also had free access to the electric meter board position. That the petitioner was protected by an order of injunction in the partition suit to the extent that the petitioner should not be evicted from the ground-floor of the property except in accordance with law and such an order had attained finality by the order the Hon'ble High Court. Mr. Basu further submitted that the petitioner could not claim access through the eastern side entrance door as a matter of right, being a co-sharer of the suit property in question. 6. Heard the parties. 7. From the order impugned, it appears that the learned Court below came to the conclusion that as the petitioner had filed the suit for a declaration that the defendant should open the lock and key of the door situated on the western side of the ground-floor of the suit property, and as such, the application for handing over the duplicate keys to enable the petitioner to unlock the eastern side gate on the boundary wall in order to access the electric meter was beyond the scope of the suit. The learned Court below had also observed that, from the Commissioner's report filed in Title Suit No.442 of 2016, it would be apparent that there were four entrances to the suit premises and the petitioner had accesses through those. It was held that the application under Section 151 of the Code of Civil Procedure could not be allowed as it would amount to granting the final relief. The prayers as made in the plaint were as follows:- "a. A decree declaring that Defendant have no right to close the door by lock & key over the 'B' schedule property in order to use the ingress & egress of the ground floor passage of the stair & as well as to see the electric meter. The prayers as made in the plaint were as follows:- "a. A decree declaring that Defendant have no right to close the door by lock & key over the 'B' schedule property in order to use the ingress & egress of the ground floor passage of the stair & as well as to see the electric meter. b. Decree for declaration to open the lock & key from the door of the Plaintiff situated on the western side of the ground floor of the Plaintiff by way of mandatory injunction. c. For such declaration decree for permanent injunction restraining the Defendant from making any kind of disturbance & annoyance to the peaceful possession & enjoyment of 'B' schedule. d. cost of the suit. e. Such other further relief & order or orders as the learned Court may deem fit & proper under law & equity." 8. It appears that the petitioner had prayed for a declaration that the defendant/opposite party did not have any right to close the door by lock and key over the 'B' schedule property and that the petitioner's ingress and egress to the ground-floor passage and the stair case as also the electric meter could not be obstructed. The petitioner further prayed that the lock and key of the door situated on the western side of the ground-floor should be opened and the petitioner prayed for a further injunction restraining the opposite party from creating any disturbance and/or annoyance to the peaceful possession and enjoyment of the 'B' schedule property. The 'B' schedule property is quoted below:- "DESCRIPTION OF SCHEDULE 'B' (where Plaintiff is in possession) Within the 'A' schedule in the ground floor consisting of bedroom, dining room, chamber room, kitchen, verandah, bath & privy, water facility in covered area approx. 1184 sqft along with right to ingress & egress from the door of the ground floor situated on western side to the eastern side." 9. The 'B' schedule property comprises of the ground-floor consisting of bedroom, dining room, chamber room, kitchen, verandah, bath & privy, water facility covering an area of approximately 1184 sqft. along with right to ingress and egress through the door on the ground-floor situated on the western side to the eastern side. 10. In the suit, reliefs prayed for was not with regard to the use of the eastern side entrance door situated on the boundary wall. along with right to ingress and egress through the door on the ground-floor situated on the western side to the eastern side. 10. In the suit, reliefs prayed for was not with regard to the use of the eastern side entrance door situated on the boundary wall. It is also an admitted position that the petitioner had access to the premises through the three other doors and the petitioner also has access to the electric meter. Under such circumstances, allowing the application under Section 151 of the Code of Civil Procedure would amount to granting an interim relief which was beyond the prayers of the suit. 11. I do not find any illegality or irregularity in the order impugned. 12. This revisional application is dismissed. 13. There will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for be given to the parties on priority basis.