JAGANNATH DHAR Vs. GOPAL CHANDRA DHAR

JUDGEMENT

(1.) This revisional application under Article 227 of the Constitution of India was filed by the defendant Nos. 1 & 2/petitioners challenging the order dated 4.08.08 passed in Misc. Appeal No. 10 of 2005 before the 4th Court of the Additional District Judge, Paschim Midnapore, thereby allowing the Misc. Appeal and setting aside the order No. 1 dated 13.01.2005 passed by the learned Civil Judge (Senior Division) Ghatal in title Suit No. 4 of 2005.

(2.) The plaintiffs/opposite party Nos. 1 and 2 filed the title suit No. 4 of 2005 in the Court of Civil Judge (Senior Division), Ghatal, for a declaration that the judgment and decree both in preliminary and final form passed in title suit No. 26 of 1980 of the 3rd Court of Subordinate Judge at Midnapore, is illegal and not binding upon the plaintiffs and for repartition of some of the suit property on the ground that the defendant Nos. 1 and 2 of title suit No. 4 of 2005 filed the suit for partition being title suit No. 26 of 1980 without impleading the defendant Nos. 1 and 2 who were also co-sharers in the suit property. However, the said plaintiffs in title suit No. 26 of 1980 impleaded the father of the defendant Nos. 1 and 2 that their father actually sold out the portion of the said property to one Haripada Routh by a registered deed of sale dated 28.05.1974 and the present plaintiffs/opposite party Nos. 1 and 2 purchased the same from the said Haripada Routh by a deed of purchase dated 9.12.1985 and since then the plaintiffs were in possession of the same. It is also contended that the defendant No. 4, Bankim Dhara, sold different portions of 'A' scheduled property by registered sale deed to Jugal Dolai, Kartick Dolai, Ajit Kumar Bhukta, Nandalal Routh and others who were not parties to the said suit. Now the present plaintiffs/petitioners came to know of the final decree of the said title suit No. 26 of 1980 for the first time after obtaining certified copy thereof on 11.01.2005 when the present defendant Nos. 1 and 2 had already filed an execution case No. 12 of 1999 on the basis of the final decree in the said partition suit. Thus, the plaintiffs/opposite party Nos. 1 and 2 after knowing of the final decree and being not a party to the suit were aggrieved by such final decree and according to them the preliminary decree and the final decree both are illegal, as passed without making of the co-sharers a party to the suit and they filed the petition under Section 47 of the Code of Civil Procedure in the execution Case No. 12 of 1999. The plaintiffs/opposite party Nos. 1 and 2 have brought this suit with a prayer for a decree of declaration that the said partition suit being title suit No. 80 of 2006 was illegal and not binding upon them.

(3.) In the said title suit No. 4 of 2005 of the Court of Civil Judge(Senior Division), Ghatal, the opposite party Nos. 1 and 2, that is the plaintiffs in the said suit, filed an application for temporary injunction restraining the defendants not to proceed with the title execution case No. 12 of 1999. The learned Trial Court rejected the petition for temporary injunction mainly on the ground that Section 41 of the Specific Relief Act, is not applicable.