TANUSREE BASU Vs. ISHNI PRASAD BASU

JUDGEMENT

(1.) Having heard the learned Counsels for the respective parties, it appears that the following are the facts, in brief.

(2.) The petitioners filed a suit for partition and in such suit the petitioners filed applications under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure. In one of the applications the petitioners prayed for an order of injunction restraining the defendant No. 7 from handing over possession of owners' allotted flat of premises No. 1/1A, Sree Mohan Lane, Calcutta-700 026 (schedule 'A' in the plaint) and also restraining the defendant Nos. 1 to 6 from selling any flat of the said premises to any stranger till the disposal of the suit. In the other application, the petitioners prayed for an order of temporary injunction restraining the defendant Nos. 1 to 6 from inducting any tenant or stranger and/or selling out the western side flat No. 201 on the second floor of premises No. 46A, Purna Chandra Mitra Lane, P.S. Charu Market, Kolkata - 700 033 (schedule 'B' in the plaint). In the order dated 16.07.2005 passed by the learned Trial Court, the learned Trial Court recorded inter alia that the plaintiff's Case is that the parties to 'the suit became the joint owners and possessors of the suit property by inheritance from their predecessors-in-interest and that the plaintiffs and the defendant Nos. 1 to 6 entered into a development agreement with the defendant No.7 on 15.05.2002 for erecting a multi-storied building on the 'A' schedule property. It has also been recorded that it is the case of the plaintiff's that as regards the 'B' schedule property the plaintiffs and the defendant Nos. 1 to 6 entered into another development agreement on 22.03.1993 with another developer for constructing another multi-storied building thereon and accordingly that was constructed and the developer has handed over the possession of the allotted flats to the plaintiffs and defendant Nos. 1 to 6 who have got possession of three flats and three garages therein and that, according to the plaintiffs, by amicable arrangements the plaintiffs and the defendants Nos. 1 to 6 are in separate possession of those three flats. With regard to the injunction application in respect of the 'A' schedule property, the learned Trial Court found that there is no substantive evidence showing the defendant's endeavour to sell out owners allotted flat and the learned Trial Court ordered that the parties to the suit shall maintain status quo with regard to the 'A' schedule property as on that date in respect of its nature and character of the said property and the parties were further directed not to encumber the said property in any way whatsoever till the disposal of the suit.

(3.) In the said order dated 16.7.2005 the learned Trial Court observed with regard to the 'B' schedule property that; from the materials on record it appears that admittedly the plaintiffs and the defendants Nos. 1 to 6 are in possession of 'B' schedule property by amicable arrangement having three flats and three car parking space thereto and in prima facie appears that the plaintiffs are in possession of flat No. 202, defendant No.1 is in possession of flat No. 201 and the defendant Nos. 2 to 6 are in possession of flat No. 302 in the 'B' schedule property. The learned Trial Court also observed that it is prima facie clear that on some false and vague plea for obtaining undue advantage the plaintiffs have come up before the Court with the injunction application in respect of the 'B' schedule property and that the plaintiffs have failed to prove any prima facie case. The learned Trial Court by the said order dated 16.07.2005 dismissed the said temporary injunction application.