Calcutta High Court (Appellete Side)
Kazipara Janakalyan Samity vs Imdadul Haque & Ors on 24 February, 2014
Author: Arindam Sinha
Bench: Arindam Sinha
1 24.02.2014
Srimanta 25 C. O. No. 3759 of 2012 With CAN 1471 of 2014 Kazipara Janakalyan Samity
-versus-
Imdadul Haque & Ors.
Mr. Bidyut Kumar Banerjee, Ms. Shila Sarkar.
...For the Petitioner.
Mr. Sabir Ahmed,
Mr. S. Chatterjee,
Mr. Mujibar Ali Naskar
...For the Opposite
Parties.
Re : CAN 1471 of 2014
The petitioner/Samity has made an application for correction of the cause title for inserting the name of Sakti Kumar Mondal, the person presently discharging the duties of President of the Samity in place of Gurudas Biswas since deceased in the description of the petitioner given in the cause title. Mr. Sabir Ahmed, learned Advocate appears on behalf of the opposite parties and does not oppose such prayer.
Liberty is given to the petitioner to incorporate the correction in Court.
The application being CAN 1471 of 2014 be treated as on day's list and is disposed of.
Re: C. O. No. 3759 of 2012This revisional application under Article 227 of the Constitution of India is directed against an order dated 25th September, 2012 made by the Court of the Additional District Judge, 3rd Court, Berhampore, Murshidabad in Misc. Appeal No. 26 of 2010 arising out of Title Suit No. 190 of 2009. The facts as it appears are that the names of one Jagrata Sangha along with Musalman Janasadharan were both recorded in the R. S. Record of Right in Khatian No. 484 corresponding to L. R. Plot No. 1419 L. R. Khatiyan No. 377 in respect of 14 decimals of land as equally possessed by them. The B.L. & L.R.O. took up the case regarding 2 such record suo moto and upon verification of deed of transfer and other documents ordered that the classification of L. R. Plot No. 1419 (R.S. 572) is liable to be corrected as 'Mosque' deleting 'Bhiti' and the noting of easement right of Muslim community to be also incorporated in respect of the said and another plot. The B.L. & L.R.O. further ordered that the noting of permissive possession of Jagrata Sangha over the said plot was liable to be deleted. The above order was made by the B.L. & L.R.O. on 2nd July, 2009 soon after which the plaintiff/petitioner filed a suit for declaration and injunction in respect of the said plot on 30th July, 2009. The learned Trial Court noted the submission of the plaintiff that the order dated 2nd July, 2009 made by the B.L. & L.R.O. had been appealed from, Appeal No. 51 of 2009 was pending before the D.L. & L.R.O., Murshidabad and as such the said order deleting the name of Jagrata Sangha as in permissive possession of the suit land could not be looked into. The learned Trial Court went on to find that the plaintiff also known as Jagrata Sangha and Musalman Janasadharan being both recorded as in possession of the suit plot, at that juncture, it was not justified to enter into the depth of the matter but since both parties to the suit were in possession, prima facie, it was expeditious to pass an order of status quo with regard to the possession in respect of the said plot.
The defendants/opposite parties preferred an appeal from the said interim order in which by the order impugned the order of status quo made by the learned Trial Judge below was set aside.
Mr. Banerjee submits that the learned Appellate Court had noted the submissions made by the Club that they had permission to construct Club building on the suit land and accordingly, they had constructed the Club premises and that the licence granted by the owner had become irrevocable by reason of the owner having migrated to East Pakistan, now Bangladesh. Mr. Banerjee further submits that there is no finding in the impugned order regarding the opposite parties being in exclusive possession of the suit land, particularly, in view of the presence of the Club as noted in the impugned order itself. In the circumstances, Mr. Banerjee submits, the impugned order cannot be sustained and that the learned Appellate Court misdirected 3 itself by setting aside the order of the learned Trial Court below.
Mr. Ahmed, learned Advocate appearing on behalf of the opposite parties raises several factual disputes regarding the matter of possession. Mr. Ahmed submits that the record in the R. S. Record of Rights was in the name of Jagrata Sangha and that the plaintiff is not the same association or persons. He further submits that the construction made by the Club is not in the suit plot but in some different plot. He still further submits that the opposite parties/defendants are in exclusive possession of the suit plot and such would appear from the report of the B.L. & L.R.O. Though this Court finds that the first contention of Mr. Ahmed had been noted in the impugned order but there is no finding in regard thereto. So far as the construction aspect is concerned that too has not been found against the plaintiff. On the third contention the impugned order refers to the order of the B.L. & L.R.O. from which it appears to this Court that the order for correction by deletion was made upon scrutiny of the documents of title in respect of the suit plot. Mr. Ahmed's contention that a local enquiry was made regarding possession of the suit plot as referred in the report of the B.L. & L.R.O. is not reflected in the impugned order.
On consideration of the facts and submissions, as aforesaid, this Court is of the view that the matter might be reconsidered by the learned Appellate Court below. However, at this stage since there is no prima facie finding that the opposite parties are in exclusive possession of the suit plot, till the disposal of the appeal the order of the learned Trial Court below must be maintained. The learned Appellate Court below is requested to dispose of the matter at its earliest convenience.
The revisional application is disposed of with the above directions.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.
4(ARINDAM SINHA, J.)