MIRA PAL Vs. SWAPAN KR ROY

JUDGEMENT

(1.) : This application is at the instance of the defendants and is directed against the order dated November 18, 2009 passed by the learned Additional District Judge, Fast Track Court No.V, Barrackpore, District North 24 Parganas in Misc. Appeal No.07 of 2009 thereby dismissing the said misc. appeal and confirming the order dated January 12, 2009 passed by the learned Civil Judge (Junior Division), Third Court, Sealdah in Title Suit NO.102 of 2006.

(2.) The short fact of the case is that the plaintiffs/opposite parties became the owner of the two flats situated on the ground floor and the second floor of the premises no.47, Kali Charan Ghosh Road under P.S. Baranagar, Calcutta 700 050 by purchase. Previously, they along with other two tenants were the tenants under the defendant no.3/respondent in respect of the said premises. The tenants of the ground floor and the second floor of the said premises purchased their respective tenanted flats. But the appellants residing on the top floor, could not purchase their tenanted portion after death of the original tenant, i.e., late Bimalendu Pal. As per sale deed, the flat owners are entitled to use the top floor for the purpose of checking the water system, water reservoir, fixing antennas, etc. But the defendants/petitioners created obstruction to go to the top floor of the premises. For that reason, the plaintiffs/opposite parties filed a suit praying for declaration that the plaintiffs have got their right of user of the roof of the building and for permanent injunction restraining the defendants, their men and agents from obstructing the plaintiffs in any manner from getting access for free enjoyment of the roof of the building and other reliefs. In that suit, the plaintiffs prayed for temporary injunction and also prayed for local inspection of the premises. The learned Trial Judge rejected the application for appointment of commissioner and the petitioners preferred a civil revision and in that revision, the Lordship was pleased to hold that the dispute with regard to water was no more an issue and as such there was no requirement for appointment of a commissioner to ascertain the state of affairs of the supply of water. The learned Civil Judge allowed the application for temporary injunction. Being aggrieved by the said order of temporary injunction, the defendants/petitioners preferred a misc. appeal which was dismissed by the impugned order. Being aggrieved, the defendants/petitioners have preferred this application.

(3.) Mr. Ghosh, learned Advocate appearing on behalf of the petitioners, submits that the predecessor in interest of the petitioners was a tenant in respect of the entire top floor of the building and the rent receipt as made Annexure A is the proof that he was a tenant in respect of the entire top floor. The present petitioners could not purchase the said property because of their difficulties; but if the order of injunction as passed by the learned Trial Judge is allowed to be continued, there would be no privacy in the family of the petitioners and the opposite parties have to make access through their premises for the purpose of checking pipeline, water reservoir, fixing antennas, etc. He has also contended that by the order of injunction, the learned Trial Judge has practically granted the entire relief and so the entire relief, as granted in the petition for temporary injunction, cannot be supported at all. Similarly, the lower appellate court has committed an error in affirming the said order. He submits that the order impugned should be set aside. Mr. Ghosh has filed a number of decisions in respect of the principles of granting injunction such as AIR 1992 Andhra Pradesh 300, AIR 1986 Delhi 27, AIR 1998 Bombay 87, AIR 1996 Bombay 98 and 2001 (1) CLJ 663.