SAMIR KUMAR PAUL Vs. MINATI KHA

JUDGEMENT

(1.) This application is at the instance of the defendants and is directed against the order no.11 dated March 23, 2009 passed by the learned Additional District Judge, Arambag in Misc. Appeal No.12 of 2008 affirming the order no.12 dated January 17, 2008 passed by the learned Civil Judge (Junior Division), First Court, Arambag in Title Suit No.52 of 2007.

(2.) The plaintiffs/opposite parties instituted the Title Suit No.52 of 2007 praying for a decree for removal and encroachment of possession of ka-1 shcedule property, as described in the schedule of the plaint and for permanent injunction in respect of the kha schedule property of the plaint to the west and also adjacent eastern side 3 feet land of the ka-1 schedule property of the plaint all along north to south at the eastern side of the ka-1 schedule property of the plaint. In that application, the defendants/petitioners filed an objection. Upon consideration of the materials on record on behalf of both the parties, the learned Trial Judge allowed the application for temporary injunction filed by the plaintiffs. Being aggrieved, the defendants/petitioners preferred a misc. appeal being no.12 of 2008 which was also dismissed on contest affirming the order dated January 17, 2008 passed by the learned Trial Judge. Being aggrieved, this application has been preferred by the defendants.

(3.) Mr. S. Bhattacharya, learned Advocate appearing on behalf of the petitioners, submits that his clients did not encroach any land of the plaintiffs at all. In fact, the portion of the land marking ka-1 is the land of the defendants for ingress and egress to his property which is situate towards east of the ka schedule property possessed by the plaintiffs. Since ka-1 schedule property is the part and parcel of the property of the defendants, the plaintiffs cannot have any objection if at all construction was made. In fact, a commissioner was appointed and he submitted his report stating that after the building of the defendants, there are lands measuring 15 feet towards west of the house of the defendants and the chamber of the privy was constructed 12 (feet) by 64 from the western wall of the house of the defendants. Still then, a piece of land measuring 3 feet in width from north to south towards west of the land of the defendants is kept and so the Panchayat Rules have not been violated at all. The report of the commissioner is clear that the defendants did not encroach any land of the plaintiffs rather he had left 3 feet width land from north to south towards west of his land as side space. So, the defendants did not violate any Panchayat Rules. In fact, because of such order of injunction, the defendants are not in a position to complete the privy to be used by them. So, the order of injunction should be vacated or at least the defendants should be permitted to complete the construction of the privy so that they can use it. He also contends that the Panchayat has not been made a party to the suit and so the suit is not maintainable in its present form.