Calcutta High Court (Appellete Side)
Suvomoy Chatterjee vs Arunoy Chatterjee on 9 August, 2019
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present:
The Hon'ble Justice Dr. Sambuddha Chakrabarti
And
The Hon'ble Justice Madhumati Mitra
F.M.A. 1299 of 2017
With
C.A.N. 8543 of 2017
Suvomoy Chatterjee
Versus
Arunoy Chatterjee
Advocate for the Appellant/Petitioner :Mr. Shaunak Ghosh
Advocate for the Applicants/Respondents : Mr.Tapas Kumar Sinha
Heard on :12.12.2018 and 31.07.2019
Judgment on : 09.08.2019
Madhumati Mitra, J. :
This appeal has been preferred against an order, dated 29th July, 2017 passed by the learned Civil Judge, Senior Division, 7th Court, Alipore in Title Suit No.391 of 2015, rejecting the prayer for temporary injunction as prayed for by the plaintiff/appellant. 2
Before dealing with the rival submissions of the parties, it would be appropriate to set out the facts briefly.
As per plaint case the present appellant and respondent nos.1 and 2 are the successors in interest of Late Mantu Chatterjee who purchased 4 cottahs, 12 Chittacks and 10 sq.ft. of land in plot no.75407541 in Khatian No.8311 and 2047 in Mouza-Behala Gram from one Shankar Haldar. Said Mantu Chatterjee constructed a two storied building covering 1 cottah, 15 chittacks and 28 sq.ft of land keeping the remaining portion vacant. Subsequently said Mantu Chatterjee transferred the remaining vacant portion of the land. After the demise of Mantu Chatterjee and his wife, the plaintiff/appellant and the defendants/respondents inherited the suit property in equal shares. Respondent No.2 is the married sister of the plaintiff and respondent no.1 and she resides in her matrimonial home. Plaintiff and defendant no.1 reside in the suit building. It has been alleged by the plaintiff that the defendant no.1 is enjoying more than 1/3rd share in respect of the suit property. Plaintiff claims that the suit property is a joint property of the parties. Plaintiff has made several requests for partition of the suit property by amicable partition but the defendant no.1 did not pay any heed. As such the plaintiff/appellant was compelled to bring T.S.No.391 of 2015 praying for a decree of partition and declaration of his share.
In his application for temporary injunction the plaintiff/appellant has stated that he is occupying the ground floor of 3 the suit premises and defendant no.1 is occupying the 1st floor of the suit premises. There is only one underground reservoir with two overhead tanks, one for plaintiff and other for defendant no.1 and both the overhead tanks are kept on the roof of the premises. It has been alleged by the plaintiff that he is being obstructed from using the roof where his overhead tank is kept. He is also obstructed from using the main entrance of the premises and to operate electric pump due to the obstructions created by defendant no.1.
Defendant no.1 contested the prayer for temporary injunction and denied all the claims allegations of the plaintiff by submitting that by virtue of a deed of gift executed by their father in the year 2006 he got entire 1st floor along with staircase, landing and main door on the north-west corner of the suit property. Thereafter, he mutated his name in the respect of the gifted portion of the suit premises. He has admitted that the overhead tank of the plaintiff is kept on the roof of the building. He has claimed that overhead tank of the plaintiff electric pump, etc. are within his portion which he got on the basis of deed of gift. He has contended that he became the absolute owner of the said portion. Plaintiff has no right over the same. He has also claimed that on several occasions he requested the plaintiff to shift the overhead tank and pump to the common area so that all the parties can access in right manner, but the plaintiff did not response. Defendant no.1 has also alleged that the plaintiff is trying to grab his exclusive portion which he got by virtue of deed of gift executed by his 4 father in his favour. It is his specific claim that the entire main door on the north-west corner measuring 78 sq.ft. is his absolute property and for security purpose he keeps the same under lock & key. Plaintiff has separate entrance to the suit property. Both the plaintiff and defendant no.1 have access to the electric pump and reservoir. Plaintiff is getting water through overhead tank. Defendant no.1 has prayed for an order for shifting the overhead tanks and electric pump from his gifted portion to some other common portion of the suit property and he expressed his intention to bear the expenses of such shifting in equal share.
Learned Civil Judge after considering the materials on record, particularly the alleged deed of gift executed by Late Mantu Chatterjee in favour of the defendant no.1, observed that the entire 1st floor together with its roof along with staircase, landing and main door on the north-west corner as well as a garage on the ground floor was gifted to the defendant no.1 by his father. The overhead tanks are situated on the roof of the 1st floor of the suit premises which is as per the deed of gift within the exclusive ownership of the defendant no.1. As such learned Civil Judge has not found any reason to issue injunction order in favour of the plaintiff. Learned Civil Judge has rejected the prayer for temporary injunction of the plaintiff with a direction upon the defendant no.1 to allow the plaintiff to the roof at the suit premises only if he makes an arrangement for shifting of his 5 overhead tank from the roof of the suit premises to any other place not within the exclusive ownership of the defendant no.1.
The plaintiff having been dissatisfied with the rejection of the prayer for temporary injunction has preferred the instant appeal. In the instant appeal plaintiff has also prayed for an order of temporary injunction with ad interim effect restraining the defendant no.1 or his men and agents from creating any obstruction in the matter of repair of water supply line, cleaning of overhead tank or use of the main door, etc. That application has been registered as C.A.N.8543 of 2017.
On 06.12.2018 this Court passed an interim order of injunction in respect of that application. The said order reads as under:-
"Therefore, we pass an interim order that for the time being. We direct the opposite parties not to create any hindrance or obstruction or not to put any mechanical device as a result of which supply of water to the appellant/applicant's portion may be affected. Even if, the appellant/applicant has no access to the roof, the opposite parties must not stop the water connection merely on the ground that the appellant/applicant had failed to shift his overhead tank for a quite some time.
This interim order shall remain operative till the disposal of the appeal".6
On 12.12.2018 and 09.08.2019 the present appeal along with C.A.N. was heard in full.
Admittedly the suit property belonged to the father of the parties. The plaintiff has claimed that after the demise of their parents he has acquired 1/3rd undivided share in the suit property which is a two-storied building. On the contrary defendant no.1 has claimed that their father during his life time executed a deed of gift and he got the entire 1st floor together with the staircase, roof and the main entrance on the north-west corner and as such plaintiff has no right over the area covered by the said deed of gift. It is also admitted fact that the overhead tanks are kept on the roof and plaintiff gets water through one of the said overhead tanks.
Learned Counsel for the respondent no.1 has submitted that the learned Court below has rightly refused the prayer for temporary injunction as the plaintiff/appellant has no right over the area in respect of which he has sought for an order of injunction. He has drawn the attention of the Court to the alleged deed of gift and submitted that the donor during his life time gifted the 1st floor along with roof top, landing, staircase, etc. in favour of defendant no.1 and defendant no.1 became the absolute owner of the area covered by the deed. According to his contention the defendant no.1 cannot be restrained by way of injunction as he is the absolute owner of the demarcated portion of the suit premises in respect of which injunction has been sought for. In support of his contention he has placed his reliance on the decisions reported in Dalpat Kumar Vs. Prahlad 7 Singh (1992) 1 SCC 719, Best Sellers Retail (India) Private Limited Vs. Aditya Birla Nuro Limited and Others (2012) 6 SCC 792, Premji Ratansey Shah and Others Vs. Union of India and Others (1994)5 SCC 547.
On the contrary the learned Advocate for the plaintiff/appellant has submitted that the plaintiff being one of the co-owners of the building is entitled to get the basic amenities such as running water and electricity and defendant has no right to deny such amenities.
The defendant No.1 has placed a copy of deed of gift on record wherefrom it appears that the father of the present parties executed a deed of gift regarding two asbestos shed rooms and open to sky roof on the 1st floor along with staircase, landing, main gate on the north-west of the suit building in favour of the defendant no.1. Prima facie it appears that defendant no.1 got a demarcated portion of the suit building in respect of which injunction has been sought for.
It is a settled principle of law that injunction would not be issued against an owner. From the recitals of the alleged deed of gift it appears that at the time of execution of the said deed of gift donor mentioned that the water reservoir of the building would be constructed under staircase of the building at joint expenses (donee and occupies of the ground floor) and the reservoir would remain as common and electric pump set would be installed in the common space by the joint expenses under the staircase. The alleged deed of gift remains silent about the overhead water tanks. Paragraph 3 of Page 12 of the alleged deed reveals that the occupier and owner of the 8 ground floor shall have no right to use of landing space and staircase as they have been gifted absolutely to the donee. Only the landing space and north-west gate may occasionally be used in case of common object arises in the common area and space provided under the staircase with due intimation to the owner of the 1st floor. There is a provision in the alleged deed itself for occasional use of the north- west gate and landing space with prior intimation to the defendant no.1. The only source of water of the building for both the occupiers is common reservoir. Overhead tank is needed to draw and use water from a reservoir.
The plaintiff has initiated the present suit for partition of the suit building. Defendant no.1 has claimed his absolute right over the 1st floor of the suit property by virtue of a deed of gift alleged to have been executed by his father.
Both the parties deserve opportunity to prove their respective cases at the time of final hearing of the suit. Authenticity and genuineness of the deed of gift and the actual interpretation of the recitals of the deed will be determined and given effect to at the time of the final hearing of the suit. If any conclusion is drawn at this stage in this regard the interest of either party may be prejudiced. Moreover admittedly the plaintiff is in occupation of the ground floor of the suit premises. As such it would be reasonable and justified not to disturb his supply of water which he is enjoying.
Considering all these aspects we are of the view that the plaintiff has a prima facie case for seeking trial. So far as supply of water is 9 concerned, we are of the view that the balance of convenience is in favour of the plaintiff and he would suffer irreparable injury if his prayer for temporary injunction regarding supply of water is refused.
In the facts and circumstances, we make the interim order passed by this Court on 16.12.2018 absolute. We direct the said order of interim injunction to continue till the disposal of the suit.
Order dated 29th July, 2017 passed by learned 7th Civil Judge, (Senior Division), Alipore in Title Suit No.391 of 2015 is hereby set aside.
Before parting with the case, we would like to clarify that the observations made in this judgment should not be taken as an expression of any opinion regarding the merit of the suit pending before the learned Civil Judge. Learned Civil Judge shall proceed with the suit and dispose of the same in accordance with utmost expedition.
The appeal is allowed. With this the application being C.A.N. 8543 of 2017 has become infructuous and the same stands dismissed. There will be no order as to costs.
Let a copy of this order be sent to the learned Court below at once.
Urgent photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.
(Madhumati Mitra, J.) I agree.
(Dr. Sambuddha Chakrabarti, J.)