HARISADHAN BISWAS Vs. NOOR ALI

JUDGEMENT

(1.) This is an application challenging the order dated December 5, 2019 passed by the learned Additional District Judge, 4th Court at Howrah in Title Appeal No.31 of 2014.

(2.) The plaintiff is the petitioner before this Court, who has obtained a decree in his favour. The learned Trial Court inter alia, held that the defendants did not have any manner of right, title, interest and possession over the suit property and the plaintiff was the absolute owner of the suit property by way of adverse possession. The plaintiff also got a decree of permanent injunction restraining the defendants and their men and agents from interfering with peaceful possession and enjoyment of the suit property and from committing any acts of waste, damage or change to the nature and character of the same. The plaintiff also got a decree for recovery of possession subject to payment of proper court fees.

(3.) Aggrieved, opposite parties preferred Title Appeal No.31 of 2014. The said appeal is pending before the learned Additional District Judge, 4th Court at Howrah. During the pendency of the appeal, the petitioner/plaintiff filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure for an order of injunction restraining the opposite parties from raising any further construction on the suit property. The specific contention of the petitioner in the said application was that the defendants/opposite parties had installed a shallow tubewell in the property and was attempting to raise further construction in violation of the judgment and decree. It was also recorded that the appellants/opposite parties had not filed any application before the learned appeal Court below for stay of execution of the judgment and decree passed by the learned Trial Court or for stay of the operation of the judgment and decree. In the objection filed to the application for injunction, the defendants/appellants/opposite parties have stated that they had not made any construction, neither had they changed the nature and character of the suit property and the shallow tubewell was constructed prior to the application for injunction was filed much to the knowledge of all concerned and the said shallow tubewell was being used by the defendants/opposite parties. That the plaintiff/petitioner was aware of the sinking of the shallow tubewell and as such the application for temporary injunction had become infructuous and the construction of the shallow tubewell was fait accompli over the suit property.