SHYAMALI HALDER Vs. SHIBNATH BANERJEE

JUDGEMENT

(1.) The grandfather of the opposite party no.1 and the father of the opposite party no.2, Debendra Nath Bandopadhyay (since deceased), was the owner of a dwelling house standing on a land measuring more or less 2 cottahs 6 chittacks and 19 sq. ft. (hereafter the said property). Debendra Nath passed away intestate on September 8, 1943 leaving behind him five sons, who jointly inherited the said property equally, each having undivided 1/5th share therein. The eldest son of Debendra Nath was Kshetra Mohan Bandopadhyay, the father of the opposite party no.1. Kshetra Mohan passed away intestate on August 22, 1970, leaving behind him three sons, who jointly inherited the undivided 1/5th share of the said property that had devolved on Kshetra Mohan on the death of Debendra Nath.

(2.) The opposite party no.1 instituted Title Suit No. 512 of 2008 before the learned Civil Judge (Senior Division), 7th Court, 24 Parganas (South) at Alipore for declaration and permanent injunction, impleading the opposite party no.2 as the sole defendant. It was alleged in the plaint that the opposite party no.1 had received a letter dated December 26, 2007 from the learned advocate of the opposite party no.2, wherein he had expressed his intention to sell his undivided 1/5th share of the said property and since the opposite party no.1 was one of several co-sharers, an offer was made that he could purchase the same at a price of Rs. 1,80,000/-. In his reply, the opposite party no.1 expressed willingness to purchase the share of the opposite party no.2 but at a price of Rs. 1,20,000/-. It was further alleged that the opposite party no.2 did not respond thereto but has been allowing inspection of portion of the said property under his occupation to outsiders/strangers with a view to encumber it. On or about February 20, 2008, the opposite party no.1 noticed to his utter surprise that the opposite party no.2 in collusion with his men and agents were illegally and unlawfully trying to block the common passage leading to the privy by constructing a partition wall but such attempt was resisted by him and the incident was diarized before the local Police Station. It was further alleged that since the said property is yet to be partitioned amongst the co-sharers, the opposite party no.1 had right and authority to use and enjoy every inch thereof. He, accordingly, prayed for a decree declaring that the said property is joint and that the opposite party no.2 had no right and authority to sell, transfer and encumber any demarcated portion of the said property to any third party until partition by metes and bounds and for a decree for permanent injunction restraining the opposite party no.2, his men, agents and associates or any one claiming through or under him from causing any interference and obstruction in the peaceful enjoyment of the common portion of the said property and also from inducting any third party and/or stranger and/or alienating any portion of the said property in any manner and or changing the nature and character thereof.

(3.) Immediately after instituting the suit, the opposite party no.1 applied for temporary injunction to restrain the opposite party no.2 or any one claiming under him from causing any disturbance and interference in the enjoyment of the said property and also from inducting any tenant and/or alienating any portion of the said property and/or otherwise dealing with any part thereof and/or changing its nature and character. He obtained an ex-parte order of injunction dated February 22, 2008, whereby the parties to the suit were directed to maintain status quo in respect of the said property.