AJOY NARAYAN GHOSH Vs. FEROZ ALAM

JUDGEMENT

(1.) This revision is directed against an order passed by the 3rd Court of the Assistant District Judge, Alipore in affirming the order passed by the 2nd Court of Additional Munsif at Alipore in T.S.83 of 1987 directing both the parties to maintain status-quo over the suit land.

(2.) The suit property formed part and parcel of the Wakf Estate of one Sahib Zabi Azhar alias Zahura Begum, wife of Tipu Sultan of Mysore on the basis of Wakfnama dated 24th Baisakh, 1255 B.S. corresponding to 5.5.1848. In or about 1881 one Jahanara Begum then a minor was the Mutwalli for the trust property. The learned Distinct Judge, 24-Parganas appointed one Anukul Chandra Chatterjee, who was the Court officer as Receiver of the Wakf Estate. The Receiver granted a lease of a portion of the Wakf Estate for a period of 30 years that is from 1.8.1912 till 1.8.1942 in favour of Charu Chandra Ghosh. During the continuance of the lease the lessee Charu Chandra Ghose is said to have inducted monthly tenants subject to the terms of the original lease. After the expiration of the lease period Jahanara Begum filed a suit against the lessee Churn Chandra Ghosh for eviction. The Mutwalli Jahanam Begum obtained a decree against the heirs of Churn Chandra Ghosh and took possession of the suit properties. The structures which allegedly stood on the Wakf Estate and those which were subsequently constructed became vested in the Wakf Estate. The revision petitioner is said to have approached the then Mutwalli for a fresh lease which was granted in contravention of law and, therefore, the plaintiff filled the suit on the ground that the said lease was invalid. The revision petitioner is said have obtained few bills to token of payment of rent for the use and occupation of the suit land in collusion with the officials of the Mutwalli. The opposite party/plaintiff in their pleadings stated that the defendant No.1 to be their tenant at a rental of Rs. 200.86 granted by Jahanara Begum, who was the Mulwalli and had left for Pakistan around 1950 and after her departure there was a great deal of mismanagement over the wakf estate. After Jahanara Begum left for Pakistan there were many litigation's over the wakf estate following judgement and decree in T.S. 35/47 of the 7th Court of Additional Subordinate Judge, Alipore. The defendant is a habitual defaulter in payment of rent ever since 1979. Therefore, the plaintiff has filed the suit for ejectment and recovery of Khas possession and for mesne profits from the defendant No.1. In the said suit the plaintiff/opposite party has also moved for ad-interim injunction and the learned Trial Court on hearing the parties directed the defendant Nos.1(a) to 1(d), their men and agents not to make any construction over the suit property till the disposal of the suit. The defendant Nos. 1(a) to 1(d) being aggrieved by such ad-interim order of injunction preferred an appeal before the Assistant District Judge. Alipore who had upheld the findings of the learned Munsif.

(3.) Mr. Dasgupta, the learned counsel appearing far the defendant Nos. 1(a) to 1(d)/revision petitioners has submitted that both the courts below has passed an order of injunction without looking to the real matter in controversy. If is further highlighted that in a prayer for ad-interim injunction the fundamental question that requires to be decided is about the possession of a party. From the findings of the appellate court's Judgment it is revealed that the revision petitioners are continuing to be to possession of the suit properties. In that event the Trial Court should not have passed an order prohibiting them from proceeding with the construction. It is further argued that the revision petitioners being the thika tenants and the interest of the plaintiff/opposite party, if any, had already vested in the State Government after passing of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981.The revision petitioners are to be treated as tenants under the State Government after the right of their landlord having vested in the State Government. Further he has submitted that in case the revision petitioners are permitted to raise one storey shed they shall not claim any equity in case the plaintiff will get a decree for possession against the revision petitioners.