PRASANTA KUMAR GHOSH Vs. BASUDEB GHOSH

JUDGEMENT

(1.) THE plaintiff/petitioner filed a suit for permanent injunction for restraining the defendant and his men and agents from dispossessing the plaintiff from the suit property without due process of law. A decree for permanent injunction for restraining the defendant, his men and agents from creating any disturbance, annoyance, inconvenience or obstruction in the plaintiff's peaceful possession in schedule "b" property, was also prayed for. In such a suit the plaintiff filed an application for temporary injunction inter alia praying for an interim injunction for restraining the defendant/opposite party, his men and agents from dispossessing the plaintiff from the "b" schedule property without due process of law and also from causing any nuisance, disturbance, obstruction and/or from causing any interference with the petitioner's peaceful use and occupation and enjoyment of the "b" schedule property for running his business therein till the disposal of the suit. An ad interim order of injunction in similar terms was also prayed for in the said application. On 28th April, 2004, the Learned Trial Judge passed an ad interim order directing the parties to maintain status quo with regard to possession of the parties in respect of the "b" schedule property till 27th May, 2004. Being aggrieved by and dissatisfied with the said ad interim order of injunction passed by the Learned Trial Judge, the defendant filed an appeal being Misc. Appeal No. 60 of 2004 before the Learned Additional District Judge, fast Track Court No. 4 at Barasat. The said appeal was ultimately allowed on contest on 29th May, 2008. Thus, the ad interim order of injunction passed by the learned Trial Judge on 28th April, 2004, was vacated. The propriety of the said order is under challenge in this application under article 227 of the Constitution of India before this Court. Let me now consider as to how far the Learned Appeal Court was justified in passing the impugned order in the facts of the instant case. Heard Mr. Bhattacharya, Learned Advocate for the petitioner and Mr. Sanyal, Learned Advocate for the opposite party. Considered the materials-onrecord including the order impugned.

(2.) ON perusal of the plaint as well as the application for injunction, this Court finds that the plaintiff claimed that he is in permissive possession in the "b" schedule property. The plaintiff alleged that such permission was granted jointly by his father and his uncle. The plaintiff further claims that his father and his uncle are the joint owners of the "a" schedule property of which "b" schedule property is a part. In support of the plaintiff's claim for his possession of the suit property, the plaintiff has annexed various receipts showing collection of periodical payments on account of service charges by his father who is an admitted co-owner of the suit premises. The plaintiff has also produced electricity bills and the trade licence issued by the Municipal Authority etc. in support of the plaintiff's claim for possession in respect of the "b" schedule property.

(3.) WHILE disposing of the said appeal, the learned Appeal Court came to the conclusion that the description of the "b" schedule property as given in the plaint does not tally with the description of the property as mentioned in the receipts issued by the father of the petitioner. The Learned Appeal Court though held that in view of the preliminary decree passed in the partition suit being Title Suit no. 13 of 2003 the father of the petitioner is a co-sharer in respect of the suit property but, still then, the Learned Appeal Court held that the plaintiff has failed to prove a prima facie case in support of his prayer for injunction. The learned Appeal Court also held that the balance of convenience and inconvenience is also against the grant of injunction. For examining as to whether the plaintiff succeeded in making out a prima facie case, this Court has carefully considered the case made out by the plaintiff in his application for temporary injunction. I have already indicated above that the plaintiff claims that he is in permissible possession in "b" schedule property and such permission was granted jointly by his father and his uncle. But the documents which were produced by the plaintiff i. e. the receipts, in my view, cannot be regarded as a proof of such permission which was allegedly granted jointly by his father and his uncle inasmuch as none of such receipts was issued either jointly or severally by the defendant. The petitioner has failed to produce any single receipt showing collection of service charges from the petitioner by his uncle. Thus, from those documents this Court cannot come to the conclusion that the plaintiff has succeeded in establishing his prima facie claim for grant of permission jointly by his father and his uncle.