KAMAL SARDAR Vs. DEVLOKE DEVELOPERS LTD.

JUDGEMENT

(1.) The instant revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for partition being Title Suit No. 112 of 2022 pending before the 2nd Court of learned Civil Judge(Senior Division) at Baruipur, District-24 Parganas (South). The plaintiff in the suit had filed an application under Order XXXIX Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure praying an order of temporary injunction against the defendant no.1. The learned Trial Judge by the order dated May 10, 2023 had rejected the said application. The plaintiff's appeal against the said order being Miscellaneous Appeal No. 14 of 2023 was also dismissed by the impugned Judgment and order dated September 06, 2023 passed by the Court of learned Additional District Judge at Baruipur, District-24 Parganas (South).

(2.) The plaintiff is alleging that one Erfan Sardar had 1/5th share in the suit property, though his other co-sharers by the deed of sale dated December 10, 1953 had transferred the entire suit property in favour of the predecessor-in-title of the defendant no. 1 namely Fakir Chand Naskar but the share of the said Erfan Sardar in the suit property remains since he was not a party to the said deed. It is the further allegation of the plaintiff that the transfer of share of Washed Ali, the minor co-sharer, the predecessor-in-title of the defendants nos. 3 to 9 in favour of the said Fakir Chand Naskar since was not in accordance with law, the said defendants also have undivided share in the suit property. Therefore, according to the plaintiff, the defendant no. 1, by virtue of purchase vide Sale Deed being no. 12071/08 dated December 05, 2008 has not acquired full title over the suit property. The plaintiff claims that his father, being the heir of said Erfan Sardar had inherited the said 1/5th undivided share in the suit property and by a Deed of gift bearing no. 160801711 of 2022 dated February 28, 2022 has bequeathed the same to the plaintiff, thus the plaintiff has acquired the said 1/5th undivided share in the suit property.

(3.) The defendant no. 1, on the other hand is alleging that the said Erfan Sardar, not being in possession of his said share in the suit property at the relevant point of time had lost his right, title and interest therein by operation of the West Bengal Estate Acquisition Act, 1953(hereinafter referred to as 'the said Act of 1953' in short) as such his name was not recorded in the R.S.R.O.R of the suit property. The defendant no. 1 claimed that after purchase of the suit property from the recorded owners on December 05, 2008, it not only has recorded its name in the L.R.R.O.R of the suit property but also is paying Municipal taxes upon recording its name in respect of the purchased property with the records of the Rajpur Sonarpur Municipality. The defendant no. 1, with a view to construct a housing project, has purchased and amalgamated the lands adjacent to the suit property and has obtained permission from the concerned authority of the Government to convert those lands from Shali to commercial Bastu. The said defendant thereafter is executing construction of the said housing project upon obtaining sanctioned building plan from the concerned Municipality.