SUMATI DAS Vs. BIDHAN TALUKDAR & ORS

JUDGEMENT

(1.) This revisional application is directed against order dated 29th April, 2014, passed by the learned Civil Judge (Senior Division), Baruipur, in Misc. Appeal No.19 of 2013, thereby reversing the order passed by the learned Trial Court granting an order of temporary injunction in the form of status quo. The plaintiff in a suit for declaration and permanent injunction is the petitioner in this revisional application. The plaintiff claimed that he is the absolute owner and in possession of the demarcated 161/2 decimals of land and property appertaining to Mouza Rajpur, more fully and particularly described in the Schedule of the plaint. In the said suit the plaintiff filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. In the temporary injunction application it is the plaintiff's case that she has purchased the suit property vide Registered Deed No.422 dated 1st February, 1972, measuring about 161/2 decimals from one Kanak Chandra Nath. After purchase of the same the plaintiff has converted some portion of the said property into a tank on the southern side of the suit plot and on the high land she constructed a mud-built tile shed structure. The plaintiff and her family members have been possessing the suit property, continuously and uninterruptedly since the purchase on 1st February, 1972. It has been stated that, although, the defendant no.1 has no manner of title and possession over the suit property he is trying to disturb the possession of the plaintiff by his overt act for which the plaintiff made General Diary with the local police station twice. According to the plaintiff, the defendant even attempted to trespass over the plaintiff's land. The plaintiff has further stated that demarcated Western part of the suit plot originally belonged to Smt. Hansi Bala Dey and her husband, Nani Gopal Dey (since deceased). His legal heirs are proforma defendant nos.2 to 4. Against such proforma defendants the plaintiff has sought no relief. The said Hansi Bala Dey filed a suit being Title Suit No.349 of 1989 in which they admitted title and possession of the plaintiff in the suit property. The said suit was, ultimately, dismissed.

(2.) Appearing in support of the plaintiff/petitioner Mr. Sahoo has drawn the attention of this Court that entire plot being Dag No.539 contains a total of 2.03 acres of land of which the plaintiff has a demarcated portion of 161/2 decimals equivalent to 10 cottahs of land. He has drawn attention of this Court on the documents which were filed before the Court below one of which is the injunction application filed by Smt. Hansi Bala Dey in Title Suit No.349 of 1989 wherein it was admitted that defendant in that suit, namely, Sumati Bala Das & Ors. had their land measuring 10 cottahs on the SouthEastern corner of plot no.539. It has been also stated that on the West of that 10 cottahs of land Smt. Hansi Bala Dey had remaining land in plot no.539 out of 2.03 acres. The said Hansi Bala Dey is proforma defendant in the present suit.

(3.) According to Mr. Bhattacharya, petitioner's vendor, Kanak Nath had no scope to acquire any land in the suit plot and, therefore, had no transferrable title to the petitioner. Even if the plaintiff has purchased any land in the plot in question by any Deed the same is a void Deed and/or obtained fraudulently. It has been pointed out in the written statement that in the recital of the Deed of purchase of the petitioner it has been mentioned that Kanak Nath purchased the land from Debendra Nath Paul but Debendra Nath Paul had no share in plot no.539. According to the defendant, therefore, the plaintiff had acquired no title in the said plot. The aforesaid injunction application has been disposed of by the learned Trial Court by an order dated 30th April, 2013 and on considerations of the materials on record and rival contentions of the parties and particularly that both the parties have claimed title over the property and filed documents in support thereof, came to a conclusion that until title is decided the property should be preserved in its present state. Accordingly, the learned Trial Court directed both the parties to maintain status quo as regards nature, character and possession of the suit property as existed on the date of passing of the said order. Being aggrieved by the said order passed by the learned Trial Court, the defendants/opposite parties filed Miscellaneous Appeal No.19 of 2013. After a contested hearing, the said appeal has been disposed of by the learned Appellate Court below holding, inter alia, that