DIPANKAR CHOWDHURI Vs. ASHOK KUMAR ROY & ORS

JUDGEMENT

(1.) The present appeal arises out of Order No. 11 dated 23rd Sept., 1997, passed by the learned Judge, Senior Division, 8th Court, Alipore, 24 Parganas, in title suit No. 54 of 1997, rejecting an application under Order 39, Rules 1 and 2 read with Sec. 151 of the Civil Procedure Code, preferred on behalf of the plaintiff-appellant.

(2.) One Girish Chandra Moitra, left a Will, creating thereby a life interest for one of his daughters Urmila; on Urmila's death without any issue, the property was to devolve upon the children of remaining three sisters of Urmila; the appellant and the respondents 1 to 10 were the ultimate beneficiaries of the aforesaid Will, which had been probated; with the consent of all the beneficiaries, allegedly except the plaintiff, Urmila executed a development agreement in favour of respondent No. 11 and such execution of the agreement was proceeded by permission granted by the appropriate Civil Court under section 34 and 36 of the Indian Trust Act (Misc. case No. 171 of 1995). The plaintiff/appellant, allegedly, inspite of notice in the said proceeding, did not appear and did not sign the said agreement. Respondent No. 11 on the basis of a clause, permitting assignment, assigned its right, development and construction in favour of M/s. Abani Abases; Private Limited. The said Abani Abasan, in terms of the agreement, advanced. Rs. 2 lakhs to Urmila, got the property vacated by the tenants, got a building plan sanctioned and demolished the existing building; Urmila died on 20th May, 1997, on 2nd Aug., 1997, the title suit in questiion had been filed by the appellant/plaintiff, inter alia, praying for partition, the said suit, the plaintiff/appellant filed an application for injunction, which was constead by respondents 1, 6 and 7 by filing objection to the application for injunction; on the basis of direction issued by a Division Bench of this Court, in a first miscellaneous appeal, the injunction application was heard and disposed of by the impugned order in the manner as stated hereinbefore.

(3.) Since the parties, who contested the plaintiffs prayer for injunction before the Court below, appear before us, with the consent of such parties and dispensing with service of notice. We may have heard out the appeal.