LAKSHMI DEBNATH Vs. REND AICH

JUDGEMENT

(1.) The defendant appellant Smt. Lakshmi Debnath impugns in the present appeal an order bearing No. 4 dated 23rd May, 1992 passed by Shri C.A. Rahim, Judge-in-Charge, 13th Bench, City Civil Court, Calcutta in Title Suit No. 1030 of 1992 whereby the learned Judge passed an order of ad interim injunction against her, restraining her from obtaining possession of executing the decree in Title Execution Case No. 44 of 1986 arising out of Title Suit No. 1523 of 1978.

(2.) The suit premises is but one room covered with verandah in the ground floor of premises No. 36, Sree Gopal Mallick Lane, Calcutta-12.

(3.) It would be necessary in this perspective to trace the background of the case which led to the issuance of an ad interim temporary injunction against the present appellant. The appellant as a plaintiff filed Title Suit No. 1523 of 1978 against one Smt.. Sova Rani Mitra (who happened to be the sister of the plaintiff respondent No. 1 Renu Aich) for recovery of khas possession of the suit premises. The said suit was decreed on contest against the said Suit. Sova Ram Mitra on 30th April, 1983. Smt. Sova Rani Mitra filed an appeal before this Hon'ble Court being F.A. No. 358 of 1983 which stood dismissed by the Hon'ble Court on 17th June, 1986. In the said suit Smt. Sova Rani Mitra gave an undertaking to court to vacate the premises by February 1987 but ultimately she did not vacate. The decree holder appellant as a decree holder proceeded with the execution case being Title Execution Case No 44 of 1986. In the said execution proceeding the present respondent No. 1, Renu Aich as a third party filed an application which was registered as Misc. Case No. 301 of 1988 the same being treated as a miscellaneous proceeding under Order 21 Rule 97 read with section 151 of the Code of Civil Procedure. The said proceeding stood rejected on contest by order No. 49 dated 18.9.90. The present respondent No. 1 Renu Aich moved this Hon'ble Court by way of preferring an appeal against the said order being FAMT 3209 of 1990 and the appeal was dismissed by a Division Bench of this court on 12.11.91. On 7th August, 1991 the present appellant as a decree holder prayed for police help under Civil Rules and Orders 208 and police help was allowed for effecting delivery of possession. On 22nd April, 1992, a revisional application impugning the order for police help was moved by the respondent No. 1 before this Hon'ble Court and the revisional application preferred by her also stood rejected. The date of delivery of possession of the decreetal room was fixed on 29.5.92 by the executing court. The respondent No. 1 thereafter filed a suit being Title Suit No. 1030 of 1992 for a declaration of her right, title and interest in respect of the suit premises, praying inter alia for partition of the suit property being 36, Sree Gopal Mallick Lane, Calcutta and also prayed for an injunction restraining the decree holder appellant San. Lakshmi Debnath from obtaining possession of the decreetal premises by executing the decree in Title Execution Case No. 44 of 1986, arising out of Title Suit No. 1523 of 1978. In the said suit she also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure contending inter alia that she came to know of the said decree dated 13.12.86 when the decree holder along with the Court bailiff and some other anti-social elements went to execute the decree, that she was residing in the suit premises on her own right, and the premises in question is her own ancestral property. It was contended by her that the decree in Title Suit No. 1523 of 1978 was obtained by the present appellant Smt. Lakshmi Debnath in collusion with Smt. Sova Rani Mitra, her own elder sister and it was a sham contest. The learned Trial Judge decreed the suit on 13th April, 1983 and even though Sova Rani Mitra preferred an appeal against the aforesaid judgment and decree being F.A. No. 358 of 1983, there was a collusive decree similarly passed in the said appeal since Sam. Sova Rani Mitra gave an undertaking before the Hon'ble Court that she would vacate the suit premises within a stipulated period. On 13th December, 1986 at 12-30 p.m. she came to know about the collusive decree. Thereafter several proceedings have been taken by her including an application for getting her added as a party to the execution proceeding. In the mean time Sova Rani vacated the said suit premises and went over to 6A, Radha Madhab Garden Lane, Calcutta-10. The plaintiff respondent No. 1 claimed that she was one of the owners of the suit premises and alternatively she was a licensee of Smt. Lakshmi Debnath, the decree holder. On searching the old papers and documents, she got certified copies and xerox copies of important documents which could not be produced by her at the time of passing the order-in Misc. Case No. 301 of 1988 and its appeal before this Hon'ble Court or in any of the earlier proceedings connected therewith. On a discovery of new and important documents, she is now quite certain that defendant/appellant practised fraud upon the court and entire action taken by her was male fide. She further averred that Jugal Kishore Aich, her father was one of the owners of the suit premises who used to reside in the ground floor of his said dwelling house with his entire family consisting of his old and ailing mother Son. Sarojini Aich, his wife Bins, his younger brother Krishna Chandra @ Kesto Aich (a bachelor) and his two daughters Sova and Renu. Sarojini Aich died intestate in 1953 and Jugal Kishore Aich died intestate on 26.12.70. His wife Bina predeceased him. Sova was married with one Amulya Mitra and as and when she became a widow, she came with her children to live in her father's house at 36, Sree Gopal Mullick Lane, Calcutta in May 1965. According to the present appellant Late Jugal Kishore Aich who was the owner of the suit premises in its one third share sold the said premises to one Lakshmi Devi Samaddar, wife of Binoy Krishna Samaddar, who in her tam sold the premises to the present appellant. She was previously a tenant under Jugal Kishna Aich and thereafter under Sort. Lakshmi Devi Samaddar from whom she purchased the suit premises long back on 2.6.1975. Jugal Kishore Aich by an indenture dated July 30, 1947 along with his mother Sarojini mortgaged their 2/3rd share to Bijoy Gopal Samaddar. The said Bijoy Gopal Samaddar made a false indenture in the names of his wife Smt. Lakshmi Samaddar on 12 7. 1949 and by that indenture Jugal Kishore and Sarojini sold their respective 1/3rd shares each totally 2/3rd shares for a mere consideration of Rs. 10.000/- to Smt. Lakshmi Samaddar. Her grandmother's life estate could not be sold out except for legal necessity. The, plaintiff respondent No. 1 contends that no consideration really passed in between Jugal Kishore and Sarojini on the one hand and Lakshmi Devi Samaddar on the other and the said Jugal Kishore and Sarojini did not put their respective signatures on the said indenture. The plaintiff respondent No. 1 and her sister Sova Rani were always told by their father, grand-mother and uncle that they never sold out the said property. Their grand-mother Sarojini died in 1953, Jugal Kishore died in 1970 Krishna Chandra died in 1973. krishna Chandra also sold out his 1/3rd share on 21.3.54 to Lakshmi Debi Samaddar. It is the contention of the plaintiff No. 1 that where no consideration passed and when Krishna Chandra never put his signature to the said deed, Lakshmi Debi Samaddar Merely obtained fraudulently some other person's signature on the said document. It was on 2.6.75 that Lakshmi Debi Samaddar sold out the property to the present appellant by a registered indenture at a throw-away price of Rs. 20,000/-.