MAKHAN CHANDRA DAS Vs. PARIMAL CHANDRA DAS

JUDGEMENT

(1.) This is an application for review of an order dated February 17, 2011 passed in C.O. No. 377 of 2010 by Shyamal Kanti Chakraborty,J., (His lordship the then was).

(2.) Shorn of unnecessary details, the plaintiff/opposite party in this review application filed a suit for declaration of his title in respect of the property as described in Schedule 'A' to the plaint and a decree for permanent injunction restraining the petitioner in this review application from creating any obstructions and hindrances in taking free access in the property owned by the opposite party and also from forcible occupying the Room No.3 and any other property in occupation of the opposite party on the ground floor and the first floor of the Schedule premises. The plaintiff averred in the plaint that the 'A' Schedule property was originally belonged to the mother of the parties who during her lifetime gifted half of the said property to the petitioner and the other half is gifted to the petitioner.

(3.) Subsequently, the opposite party obtained a sanction plan for construction of a building in the portion gifted by the mother of the parties and constructed a partly two storied building thereupon. Subsequently, the petitioner tried to forcible occupy one room located on the extreme north of the portion exclusively gifted to the opposite party although, he has no semblance of right, title and interest therein. Precisely for such threat of dispossession, the suit was filed for declaration of title and permanent injunction. In the said suit, an application under Order 39 Rule 1 of the Code was taken out for an order of injunction restraining the petitioner from creating any obstructions and hindrances in peaceful enjoyment of the 'A' Schedule property. The Trial Court passed an ad interim order of injunction restraining the petitioner from creating any hindrances to free ingress and egress of the opposite party to the suit properties as mentioned in Schedule 'A' and 'B' of the application for injunction and also from evicting the opposite party therefrom, without due process of law for a limited period. The petitioner contested the said application for injunction by filing the written objection denying the allegation contained therein. It is categorically stated that the Room No.3 which is described in Schedule 'B' to the plaint and the injunction application was in possession of the petitioner since last 20 years. It is further averred that the property is not demarcated by metes and bounds and the parties are occupying the respective portions since the lifetime of the mother. Subsequently, an application under Section 151 of the Code is filed by the opposite party complaining of the dispossession from the 'B' Schedule property by the petitioner in spite of the subsistence of an order of injunction and prayed for the restoration of the possession through police help. In the written objection, it has again reiterated that the petitioner is, in fact, in possession and occupation of the 'B' Schedule property being Room No.3 since several years and the opposite party was never in possession thereof.