T S DAS Vs. LALITHAMMA

JUDGEMENT

(1.) HEARD learned counsel for the appellant and for the respondent.

(2.) THIS appeal is against an order of temporary injunction in mandatory form which, by this time, has been given effect to. The appellant has been dispossessed with police force.

(3.) I.A.No.3075/11 was filed in that suit seeking an order of temporary injunction prohibiting the defendants from, among other things, commencing any business in the plaint schedule property. By ad-interim order dated 8.6.2011, learned Subordinate Judge granted an order of temporary injunction, restraining the defendants from making any new construction, altering the existing structure or inducting any strangers into the plaint schedule property. Conspicuously, the prayer for injunction against commencing any office was not granted. Later, that application was contested. That led to the detailed order dated 4.7.2011, whereby, the court below made absolute its ad-interim order as against the second defendant. It was specifically stated that as the first defendant not being in possession, an order of injunction as against him is unnecessary. Obviously therefore, whatever be its quality, rigour or acceptability, the court below proceeded as if the second defendant was in possession of the plaint schedule property. That order led to FAO.No.208/11 before this court. Different arguments were addressed before the Bench, including that the building in question is a dwelling unit and therefore, is covered by Section 44 of the Transfer of Property Act, 1882 and Section 4 of the Partition Act and as to whether the building could be put to use by a person under transfer by only one among the sharers. After recording all the arguments, the Bench was of the view that the matter requires deeper consideration. It was not inclined to interfere with the order issued by the trial court. Accordingly, the Bench decided the FAO on 10.8.2011 holding that interest of justice would be sub-served if the suit is disposed of at the earliest, totally untrammelled by any of the observations contained in the order, including the one that the property is a dwelling house. It is abundantly clear that this Court did not speak anything on the plea between the parties on the merits. It left open all contentions, including the question whether the property is a dwelling house. The question as to the application of Section 44 of the Transfer of Property Act, 1882 and Section 4 of the Partition Act were also thus left open to be decided at trial. Their Lordships had very cautiously thought it fit that interference at that stage would affect the process of trial.