NATIONAL GENS H.S. SCHOOL Vs. JAGANNATH DEGA

JUDGEMENT

(1.) THIS is an application under Section 227 of the Constitution of India preferred by the defendant Nos. 3/petitioner herein challenging an order dated 12th of September, 2011 passed by Sri M. K. Prosad, learned 2nd Additional Civil Judge (Junior Division) at Alipore in Title Suit Nos. 32 of 2007.

(2.) SHORN of unnecessary details, the facts are that one Shri Jagannath Daga and one Shri Biswanath Daga preferred a suit for permanent injunction, inter alia, praying for a decree for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit property. In connection with the said suit an application for temporary injunction was filed by the plaintiffs and the said application was heard along with an application for local inspection filed by the defendant Nos. 3. Upon contested hearing, by an order dated 21st of January, 2001, the parties were directed to maintain status quo in respect of their possession till the disposal of the suit and the application under Order 39 Rule 7 was dismissed. The said order of dismissal of the application under Order 39, Rule 7 was not challenged. Subsequent thereto, trial commenced and at the stage of cross -examination of the plaintiffs ' witnesses, an application under Order 39, Rule 7 read with Section 151 of the Code of Civil Procedure was filed by the defendant Nos. 3, being the petitioner herein. The said application has been rejected by the order impugned in the instant revisional application.

(3.) MR . S. P. Roy Chowdhury, learned Senior Advocate, assisted by Mr. Mukherjee, appears on behalf of the petitioner and submits that the initial application under Order 39, Rule 7 was dismissed erroneously by the learned Court below construing the dispute amongst the parties to be as regards title to the suit property though the dispute was pertaining to possession of the respective parties. However, he hastens to add that title to the property is an incidental issue involved in the suit.