Calcutta High Court (Appellete Side)
Prafulla Kumar Kansari vs Bankim Chandra Kansari & Ors on 9 April, 2015
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
09.04.2015
Sl. No.32
ad
F.M.A.T 263 of 2015
With
C.A.N 2644 of 2015
Prafulla Kumar Kansari
Vs.
Bankim Chandra Kansari & Ors.
Mr. Hiranmay Bhattacharya,
Mr. Saunak Bhattacharya......... For the appellant
Ms. Sarmistha Ghosh Sarma
......... For the respondents
The appeal has been preferred against the decision of the trial court by which the trial court has permitted the respondents to have the Shib Puja on 12th April in a particular vacant area which is in possession of the appellant, on the basis of report of the Commissioner dated 3rd April, 2012.
Mr. Bhattacharya, learned counsel appearing for the appellant, submits that the trial court has erred in passing such an order without appointing a Commissioner to ascertain whether the space where the Shib Puja is to be held is in fact vacant. From the trial court's order it is apparent that the vacant land is 24' 6" x 13' 9"
as mentioned in the report of the Commissioner dated 3rd April, 2012. An order had been passed by the trial court on 16th November, 2011 directing that the status quo be maintained by the parties with respect to the nature and character of the aforesaid vacant land. 2
Therefore, the character of the vacant land of the suit property could not have been changed after 16th November, 2011.
Mr. Bhattacharya submits that 'trees' have grown over the last four years on this land and, therefore, it would be impossible to hold the Shib Puja. He has produced photographs to convince us that the land is not vacant. From the photographs it is evident that the land is bounded by temporary bamboo fencing and shrubs have grown over that land. These shrubs can easily be removed in order to have the Shib Puja.
Accordingly, the appeal is dismissed. Consequently, the application is also dismissed.
There will be no order as to costs.
We make it clear that holding of the Shib Puja this year will not create any equity in favour of the respondents. It is further made clear that any structures erected for the purpose of holding the Shib Puja will be cleared by 15th of April, 2015.
(Nishita Mhatre,J.) (Asha Arora, J.)