JAMUNA SINGH Vs. SIBANI BASU & ORS.

JUDGEMENT

(1.) This petition being one under section 115 of the Code of Civil Procedure is directed against the order dated Jaunary 5, 1989 passed by the 5th Additional Court of District Judge, at Alipore in Miscellaneous Appeal No. 153 of 1988 arising out of an order dated April 28, 1987 passed by the 3rd Court of the Munsiff at Alipore in Title Suit No. 55 of 1987. By the impugned order, the Additional District Judge affirmed the order of the Munsiff granting temporary injunction directing the defendant in the suit to remove the padlock from the door on the passage situate in the southern part of the suit property.

(2.) The facts relevant for the present can be put in a short compass. The suit-in-question being Title Suit No. 55 of 1987 was instituted by the plaintiffs - opposite parties for declaration and permanent injunction against the defendant - petitioner with respect to certain portion of the Premises No. 25, South-end Park, P. S. Tollygunge, Calcutta.29. Whereas the plaintiffs - opposite parties were the landlords of the said premises, the ground floor of the said premises was under the tenancy of the defendant-petitioner. The petitioner was thus admittedly a tenant under the plaintiffs with regard to the ground floor of the premises. There was, however, dispute between the parties with regard to the extent of the defendant's tenancy as also with regard to the eviction of the defendant on one or the other ground. The issue between the parties with regard to eviction was not relevant for the instant case inasmuch as the litigation on that score stood on different footing in a separate proceeding. What alone was relevant for the Title Suit-in-question referred to above as also the present revisional petition is the dispute between the parties with regard to the extent of the area in the tenancy. The defendant - petitioner as alleged by the plaintiffs - respondents bad put a padlock on the passage negotiating with some portion of the courtyard of the suit premises, which is said to be not covered by the tenancy of the defendant - petitioner.

(3.) In order to sort out the above controversy between the parties, it appears to be most relevant to refer to a dispute of the same nature raised earlier between the parties as a result of which the defendant - petitioner had to move the Court of 3rd Munsiff, Alipore through a suit being Title Suit No. 294 of 1968. In the said suit, the defendant - petitioner exercising r his right as a tenant has prayed for permanent injunction against the plaintiffs - opposite parties with respect to some portion of his tenancy. The decision in the said suit would be, therefore, very much relevant at least to base a decision with regard to the mandatory injunction as prayed for in the subsequent suit being Title Suit No. 55 of 1987 of the Court of 3rd Munsiff, Alipore, which, this time, has been brought by the plaintiffs - opposite parties being the landlords/owners of the premises-in-question. Before extract the relevant decision in the earlier suit, 1 may also point out that the Additional District Judge, Alipore has rightly placed sufficient reliance in his impugned order over the aforesaid decision in Title suit No. 294 of 1968, which having been initially dismissed by the Trial Court was subsequently also affirmed by an order dated 31.1.1972 of the Appellate Court in Title Appeal No. 781 of 1971 (of the Court of 3rd Additional District Judge, Alipore).