Calcutta High Court (Appellete Side)
Gautam Sen & Ors vs Dr. Ganesh Dasgupta on 3 July, 2018
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI C.O. No. 2938 of 2017 GAUTAM SEN & ORS.
... Petitioners
-Versus-
Dr. GANESH DASGUPTA ... Opposite Party Mr. Budhadev Ghosal, Mr. U.S. Menon, Mr. Abhirup Chakraborty ... For the petitioners Mr. Hiranmoy Bhattacharyya ... For the opposite party Heard on : 18.05.2018, 08.06.2018 & 22.06.2018.
Judgment on : July 3, 2018.
Sahidullah Munshi, J.:-
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.
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.
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.
Dr. Gautam Sen, the defendant no.1, has been allotted the ground floor. Tushar Kanti Mitra, the defendant no.2, has been allotted the first floor along with Mrs. Jharna Ghosh, defendant no.3 by virtue of the provisions made in the last Will of deceased Prativa Sen. Such allotments of defendant nos. 1, 2 and 3 have been mentioned in Schedule 'C' to the plaint.
According to the plaintiff, the suit premises is a family dwelling house. The staircases, stair landings, common passage, land and ground around, common water reservoir, are all common parts and common areas as such those are joint properties inseparably annexed with the flats for their independent use. The defendant nos. 1, 2 and 3 are not interested to their allotments in the suit property described in Schedule 'C' to the plaint and they are interested to sell, transfer, assign to third party.
According to the plaintiff, on 4th June, 2008, the defendant no.2 and his associates or brothers of the defendant nos. 1 and 2, in collusion with each other, illegally and in a high-handed manner, gave inspection of the suit premises described in Schedule 'C' below, to third parties ignoring the protest of the plaintiff and started negotiating with the stranger/outsiders with a view to sell their interest in the suit premises described in Schedule 'C' to the severe detriment of the plaintiff's interest in the suit property and further that the said defendant threatened to create third party interest in the suit premises and to part with their possession.
In such circumstances, in the said suit, the plaintiff filed an application for temporary injunction and prayed for an order restraining the defendant nos. 1, 2 and 3, their men, agents and associates from selling, transferring, assigning and/or parting with possession of the suit property described in Schedule 'C' in favour of any stranger and/or from creating any third party interest or inducting in the suit property any stranger without offering to sell or transfer the suit property at the market price to the plaintiffs first. Such prayer has been opposed by the defendants by filing written objection in the trial Court. Learned trial Court, on perusal of the materials disclosed before it by the plaintiffs and the defendants, held that the property was not undivided rather independent dwelling units have been allotted under the Will executed by Prativa Sen in favour of the parties and the plaintiff cannot claim any preferential right in respect of the suit property and, therefore, cannot restrain the defendants from alienating their share in the suit property. Plaintiff filed an appeal being Misc. Appeal No. 435 of 2009. In the said appeal the defendants have filed their objections too. On consideration of the materials available on record, the learned Appellate Court below allowed the appeal and set aside the order passed by the learned trial Court and directed the parties to maintain status quo in regard to the nature, character and possession of the suit property described in Schedule 'C' to the injunction petition dated 27th June, 2008 till disposal of the suit.
Being aggrieved by the said order of the Appellate Court below, the petitioners have come up with this revisional application under Article 227 of the Constitution of India.
Mr. Ghosal, learned Advocate appearing for the petitioners, submitted that the plaintiff has failed to make out any case in support of the prayer for temporary injunction in the Court below. Neither the plaintiff can claim that the suit property is a joint property, nor can they plead that they have a right of preference by virtue of Section 8 of the West Bengal Land Reforms Act, nor by virtue of Section 4 of the Partition Act. Therefore, according to Mr. Ghosal, learned trial Court has rightly refused to grant interim order of injunction. According to Mr. Ghosal, the learned Appellate Court below has exercised a jurisdiction not vested with him under the law in holding that there appears jointness in the property and that the petitioners have been able to make out a prima facie case for injunction and, therefore, according to Mr. Ghosal, the order passed by the Appellate Court below, cannot be sustained.
In support of such submissions made by Mr. Ghosal, he has relied on three decisions, namely, • Mira Banik & Anr. - Vs. - Smita Bhattacharyya & Ors., reported in 2004(1) CHN 261;
• Sk. Samser Ali & Ors. - Vs. - Serina Bibi & Anr., reported in 2012(2) CLJ (Cal) 504; and • Subal Mondal - Vs. - Gopal Chandra Mondal, reported in 2014(1) CHN (CAL) 706.
Drawing attention of this Court, in Mira Banik (supra) Mr. Ghosal submitted that a Court in exercise of supervisory jurisdiction under Article 227 of the Constitution, cannot confine itself only to the jurisdictional error but can even delve deep into the facts in detail and to find out whether the learned Court below has correctly passed the order impugned based on the facts pleaded by the parties. There is no doubt about the proposition advanced by Mr. Ghosal that a Court, under Article 227 of the Constitution, has the power to find out illegalities, if committed.
Mr. Ghosal has drawn attention of this Court to the decision in Sk. Samser Ali (supra) to submit that even Section 8 of the West Bengal Land Reforms Act does not empower a Court to grant such relief.
The third decision in the case of Subal Mondal (supra) is on the issue that unless someone claims to be a co-sharer of a land, there cannot be any causes to pre-empt the right of the other side.
In respect of his decisions referred to hereinabove, the 2nd and 3rd decisions have got no manner of application on the fact situation of the present case. However, Mr. Ghosal has submitted that in his written objection filed before the learned Appellate Court below he has pointed out that defendant never thought of selling their share in the property. The statement made in the said written objection annexed to this revisional application being Annexure 'H' is set out below :
"... Your petitioners state that they never thought even in the dream to sell out the property. Although the defendant no.1 being absolute owner has been enjoying the specific ground floor flat having no connection with the other flat and the Defendants no.2 to 3 being absolute owner has been enjoying the first floor flat of the suit building without having any connection with the other flats equally the Plaintiffs being absolute owner has been enjoying the third floor flat without having any connections with the other flat owners. Only the second floors flat, the parties in suit are joint owners.
Your Petitioners further state that the Plaintiffs have been creating obstruction to go up to the roof and/or the 4th floor of the premises and the Plaintiffs have made an unauthorized construction at the third floor for which the Defendants are not getting free access to go up to the roof..."
According to Mr. Ghosal, in view of the statement so made by the defendants, the learned Appellate Court below ought not to have granted any order of injunction instead he should have recorded these statements of the defendants.
Mr. Hiranmoy Bhattacharyya, learned Advocate appearing for the opposite party, submitted that defendants have been bringing various strangers to the premises in order to cause development of the same through a developer.
According to him, if their share is transferred to any stranger then their privacy in occupying the premises will be seriously jeopardized. That apart, according to the directives in the Will, the possession of plaintiff and defendants are joint and the parties are also closely connected with the said Prativa Sen. Plaintiffs and defendants are the heirs of the brothers and sisters of the Testatrix Prativa Sen. Therefore, according to Mr. Bhattacharyya, although in true sense they are not co-sharer but by virtue of the last desire expressed by the Will from which both the plaintiffs and the defendants derived their title and claimed possession, are someway joint and interrelated. Therefore, according to him, it is not desirable that the common areas which are left open for use of all the dwelling unit holders should get disturbed at the instance of a third party if introduced by any of the dwelling unit holders, who came to be in possession immediately after Prativa Sen, since deceased.
On perusal of the judgment and order of the learned Court below, it appears that the Appellate Court below has dealt with each and every aspect of the matter. Learned Appellate Court below has even considered the Will through which the parties in suit have derived their title. Learned Appellate Court below has held that privacy and the security of the plaintiff/appellants will be disturbed if a third party is introduced into the suit premises. The learned Appellate Court below has made itself satisfied about the cause of action for the suit. Learned Appellate Court below held that after bequeathing different undivided portions in the suit premises the remaining portions of the same is common for all the brothers. The learned Court below held that the trial Court should have held that the suit premises is still undivided and some portions are still being jointly enjoyed by some parties to the suit. Even the learned Appellate Court below pointed out that the caretaker pays common electricity charges for passages, staircase etc. and maintains water pump for the benefit of occupants of the building.
Even the statement which has been made by Mr. Ghosal's client in his objection filed before the Appellate Court itself shows jointness of the possession. The defendants have made allegations against the plaintiff in respect of their interference with peaceful enjoyment of the common passages. If this is the situation, then the apprehension expressed by Mr. Bhattacharyya that their privacy in the premises will be disturbed if third party is introduced to enjoy such common passage, appears to be not baseless.
After hearing the parties and considering the materials available on record it appears to this Court that contention of Mr. Ghosal cannot be fully supported. Even the Will, if considered for a moment, it appears that it was the desire of the Testatrix that the brothers under the Will should remain jointly in the suit property. In the Bengali Will executed by Prativa Sen on 31st December, 1975 it has been mentioned that the third floor flat would be allotted to Gita Sengupta and her husband Prem Kumar Sengupta on life interest. The said Gita Sengupta and Prem Kumar Sengupta have no issue. It has been mentioned that after their death the same would devolve on the legal heirs among the brothers and sisters of the Testatrix. There are other portions in the Will which also indicate that it was the desire of the Testatrix that the brothers would live together. Therefore, it can be prima facie held that parties being the near relations of the Testatrix would live together in the said premises.
In a suit for declaration the plaintiff has prayed for an injunction. It is not the case of the defendant that the suit on the face of it is not at all maintainable. At least plaintiff has been able to make out a prima facie case to go for trial. The plaintiff's apprehension of maintaining peaceful possession also cannot be brushed aside altogether on the given facts particularly the document being Annexure 'B' relied on by Mr. Bhattacharyya in the rejoinder to the affidavit-in-reply. Therefore, in order to make a scrutiny of the necessity by grant of temporary injunction in a suit for declaration, the Court has to make a minimum exercise as to whether there is any prima facie case, balance of convenience and inconvenience and injury that might be caused to the other side. From the factual scenario in this case, it does not appear that the defendants are in anyway disturbed by the order of the Appellate Court below. At least I do not find that any injury would be caused to the defendants if an order of injunction is passed in the nature it has been passed by the learned Appellate Court below. The balance of convenience apparently lies in favour of granting injunction and it is not a case that if the defendant suffers any prejudice, that cannot be compensated by damages. The argument advanced by Mr. Ghosal may be a good argument for the final hearing of the suit but not at the interlocutory stage. Therefore, I do not find any irregularity and/or illegality in the order impugned passed by the learned Appellate Court below. In my opinion, learned Appellate Court below has not exercised a jurisdiction not vested in law, nor has the Appellate Court below acted illegally or with material irregularity in passing the order impugned. That being so, the order passed by the Appellate Court below does not call for any interference in this revisional application.
Revisional application is dismissed. There will, however, be no order as to costs.
The findings arrived at in this revisional application are all prima facie and the learned Court below shall not be influenced by any of such findings made by me in this revisional application.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)