GAUTAM SEN & ORS Vs. GANESH DASGUPTA

JUDGEMENT

(1.) This revisional application is directed against order dated 5th May, 2017 passed by the learned 4th Court of Additional District and Sessions Judge, Alipore, in Misc. Appeal No.435 of 2009. By the order impugned the learned Appellate Court below has set aside the order passed by the trial Court granting an order of injunction in favour of the plaintiff. The plaintiff filed a suit for a declaration with permanent and mandatory injunction. In the said suit the plaintiff has made a prayer that defendant nos. 1, 2 and 3 have no right to sell, transfer, assign and/or part with their allotments in the suit premises, described in Schedule 'C', to any stranger, outsiders and/or to create any third party interest therein without making any first offer to the plaintiffs to enable them to purchase their allotments. In short, the plaint case is that the suit premises comprises of land measuring more or less 467 square meters together with 4-storied building having self-contained flats on each floor and three outhouses and three garages.

(2.) The suit premises originally belonged to Smt. Prativa Sen (since deceased), who died as widow without any issue. Smt. Prativa Sen, prior to her death, executed and published her last Will and Testament dated 31st December, 1975 which was the last Will of the Testatrix and as such, the Will was duly probated by a competent Court.

(3.) Plaintiff nos. 1 and 2 are the heirs of Paresh Nath Dasgupta (since deceased), the brother of Prativa Sen, who got 1/3rd share in the 2nd floor and the entire third floor of Premises No.35, Ballygunge Place, P.S. Gariahat, Kolkata, by virtue of the provisions made in the last Will and Testament of the said Prativa Sen. Such allotment of the plaintiffs has been described in Schedule 'B' to the plaint.