ATIN KUNDU CHOWDHURY Vs. KRISHNA CHHATTOPADHYAY

JUDGEMENT

(1.) THIS instant revisional application has been directed against the order dated 25.04.2006 passed by the learned Civil Judge (Senior Division) 1st Court, Hooghly in Misc. Appeal No. 99 of 2005 whereby the order of injunction dated 11.08.2005 passed by the learned Civil Judge (Junior Division), Hooghly in Title Suit No. 40 of 2005 was set aside. As indicated in the record, the petitioners entered into an agreement with opposite party No. 1 for purchasing a cinema hall called Rama Talkies at a consideration of Rs. 4,50,000. The agreement for sale was executed on 15.09.1990. It was followed by delivery of possession of the cinema hall with all its fixtures and furnitures in favour of the petitioners. The owner of the cinema hall received Rs. 1,90,000 on the date of agreement as earnest money. The petitioners claimed having paid the balance amount by instalments, whereas the opposite party No. 1 denied paying received the entire balance amount. Alleging that the opposite parties threatened the petitioners to dispossess them from their possession of the cinema hall, the plaintiffs filed a suit for declaration for their right and also for a decree for an injunction restraining the opposite party from dispossess them from the cinema hall. The Trial Court granted interim injunction in favour of the petitioners. The opposite parties preferred an appeal, which was registered as Misc. Appeal No. 99 of 1995. The learned Additional District Judge set aside the order dated 11.08.2005 passed by the learned Court in connection with T.S. No. 40 of 2005, thereby vacating the order of injunction.

(2.) APPEARING on behalf of the petitioner, Mr. Jiban Ratan Chatterjee, learned Senior Counsel, has submitted that the Appellate Court completely lost sight of the fact that the petitioners had been in lawful possession of the suit property after the execution of the agreement for sale. Drawing the attention of the Court to the receipts as to the payment of instalments, Mr. Chatterjee has submitted that the entire balance amount having, been paid to the transferor, the transferee in lawful possession should not be evicted from the lawful possession of the property.

(3.) REFERRING to the claim of the petitioners that they had been in lawful possession of the suit property since the execution of agreement, Mr. Ganguly has submitted that since the balance consideration of amount was not paid, the opposite party No. 1 duly recovered the cinema hall in question from the petitioners. Thereafter the cinema hall was gifted to opposite party No. 2 by execution of deed of gift. Licence for operation of the cinema hall was also granted in favour of the opposite party No. 2 by the Municipal Authorities. Had the petitioners been in lawful possession of the cinema hall, the licence would not have been granted in favour of the opposite parties, as contended by Mr. Ganguly. The R.S. record also vindicates the claim of the opposite parties that the petitioner had no longer been in possession of the suit property at the time of the institution of the suit. Having been ousted from the cinema hall, the petitioners, it is argued, cannot claim right and title as well as permanent injunction against the opposite parties. Citing to the case of Pushapa Rani S. Sundaram and others v. Pauline Manomani James and others, Mr. Ganguly has submitted that the petitioners not having averred and proved that they had actually performed or they were always ready and willing to perform their essential obligations under the contract, the petitioners/plaintiffs should not be entitled to any relief whatsoever under the Specific Relief Act.