BRIJ LAXMI FOUNDATION Vs. KRISHNA CHANDRA SAPUI

JUDGEMENT

(1.) In the instant application under Article 227 of the Constitution order dated 16th February, 2009 passed in Misc. Appeal No. 463 of 2008 arising out of Title Suit No. 468 of 2005 now pending before the learned First Civil Judge (Senior Division), 1st Court, Alipore has been assailed.

(2.) By such order the learned First civil Judge (Senior Division), Alipore disposed of a Misc. Appeal being no. 463 of 2008 affirming the order dated 28.08.2008 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No. 468 of 2005. By the said order the learned Trial Court directed both parties to maintain status quo in respect of the suit property till disposal of the suit.

(3.) In fact, the plaintiff filed the aforesaid Title Suit No. 468 of 2005 praying for a decree for declaration, injunction and recovery of possession. In the plaint it has been claimed that the plaintiffs and other family members got total 367 bighas 14 cottahs of land including the disputed property from time to time from 1888 onwards from Beni Madhab Ghosh, Joy Krishna Mondal and Naba Krishna Pal and many others by virtue of Patta being no. 51/18888 and 264/1897, deed of exchange being 2474 of 1915, sale deeds being 2476, 2478, 2480 and 2482 etc of 1915 and also by other means comprised in Touzi No. 169/1, 169/2, 129, 159, 169, 206 and 210 etc Mouza Barokhola. It is further case of the plaintiff that subsequently the members of the family lost their unity and due to their non-cooperation name of only one of the three owners namely, Naba Krishna Pal was erroneously recorded in the relevant records of rights in respect of some plots of land at Barokhola mouza. In 1956 Bishnu Pada Sapui and Jatindra Nath Sapui filed a partition suit being Title Suit No. 43 of 1956 which was subsequently renumbered as Title Suit No. 121 of 1962. In the said suit one Receiver was appointed to look after the entire properties including the suit property. An application was filed for removal of such Receiver and taking advantage of such unusual circumstances the defendant took possession of the suit property and started construction of building thereon. The plaintiffs then raised objection being co-sharer but the Receiver Mr. Sankar Sen remained silent. So some of the parties moved the Hon ble Court and the Hon ble Court was pleased to pass an order of civil imprisonment against the Receiver. Thereafter, the defendant again tried to change the nature and character of the suit property though the partition suit was pending and an application under Section 144 Cr.P.C. was also filed against the defendant in which the learned Executive Magistrate was pleased to pass restraint order against the defendant.