Calcutta High Court (Appellete Side)
3795/2010 on 15 June, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
15.06.2011 C.O. No. 3795 of 2010 s.d. Mr. Bhudeb Chatterjee,
Mr. Basudeb Ghosh ..... for the petitioners.
Heard learned Advocate for the petitioner. Affidavit of service filed by the petitioner be kept with the record. Service has been effected. But none appears on behalf of the opposite party.
Accordingly, the application is taken up for hearing. Heard the learned advocate for the petitioner. This application is at the instance of the plaintiffs and is directed against the Order No.1 dated September 9, 2009 passed by the learned District Judge, In Charge, Alipore in Misc. Appeal No.509 of 2010 thereby refusing to grant ad interim injunction over the roof rights of the petitioners.
The plaintiffs / petitioners herein instituted a suit being Title Suit No.2532 of 2010 for declaration of title and permanent injunction against the opposite party before the learned Civil Judge (Junior Division), 3rd Court, Alipore. The plaintiffs have contended that they are the owners of Schedule 'A' property as described in the plaint and the opposite party is the owner of the Schedule 'B' property. The common space, such as, common passage, main gate, common right of staircase, roof right etc. are the common and those common property have been described in Schedule 'C' to the plaint. But the opposite party is creating obstruction in the enjoyment of the common property and for that reason, the said suit has been filed.
The plaintiff has filed the xerox copy of the draft deed which lays down that the petitioner has the roof right to use the property, described in schedule 'c'. But at the time of preparation of the deed, he has been debarred from using the roof right. Being aggrieved, he filed the suit. His prayer for ad interim injunction was refused by the learned Trial Judge. Being aggrieved, he filed a misc. appeal being Misc. Appeal No.509 of 2010 where his prayer for ad interim injunction was granted partially. Being not satisfied with the reliefs, he preferred this revisional application.
Upon hearing the learned Counsel for the petitioner and on going through the materials on record I find that the plaintiffs have asserted their roof right by way of filing an affidavit in support of the plaint case and at the same time. They have filed the draft copy of the deed and the deed prepared subsequently which debars the plaintiffs from using the roof right. It is also the specific contention of the petitioners that the defendant is causing damage to the roof also over which he has interest. This is being the position, I am of the view that the plaintiffs have not only proved the prima facie case to go for trial but also have proved the urgency in passing the interim order. Accordingly, the defendant and his men and agents are restrained from blocking the common passage of the house property of the Western side starting from main entrance to the common staircase on in any manner whatsoever till the disposal of the misc. appeal. The learned Lower Appellate Court is directed to dispose of the misc. appeal within a short time preferably within 30 days from the date of communication of this order.
This application is disposed of in the manner indicated above.
Urgent xerox certified copy, if applied for, be given to the learned counsel for the petitioner upon compliance of necessary formalities.
(Prasenjit Mandal. J.)