Calcutta High Court (Appellete Side)
Swapan Sarma Sarkar vs Shyamal Chatterjee And Others on 4 October, 2016
1 04.10.2016
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Item No.35 C.O. 3902 of 2016 Swapan Sarma Sarkar Vs. Shyamal Chatterjee and others.
Mr. Sourav Sen, Mr. Debnath Mahata.
... for the petitioner.
In a suit for declaration that the D schedule property is a common passage meant for ingress and egress to the respective plots owned by the plaintiff and the defendants, an application for temporary injunction was taken out for an order restraining the defendants from creating any obstruction and/or disturbances in exercising the right of use of the said common passage.
The Trial Court refused to pass an ex parte ad interim order of injunction, which was challenged before the Appellate Court. While admitting the appeal, the Appellate Court passed an ex parte ad interim order of injunction restraining the opposite party nos. 1 and 2 from causing any obstruction in exercise of right of use of the D schedule common passage till a particular date. The said ad interim order was extended from time to time until the impugned order is passed.
A report of the Surveyor appointed by the Block Land and Land Reforms Officer in connection with another proceeding was placed before the Appellate Court, wherefrom it appears that a strip of land is running on the southern side of the schedule A and schedule B property over which the electric and water connection of the petitioner runs. However, the Appellate Court proceeded to vacate the ad interim order of injunction as the demarcation of the 2 strip of land as common passage is opposed to law relating to ownership of landed property. The Appellate Court appears to have proceeded to trace a prima facie title than the prima facie case.
This Court, therefore, feels that the petitioner has been able to make out a prima facie case.
The opposite party nos. 1 and 2 are restrained from creating any obstruction in exercising of right to use the common passage being the schedule D to the plaint till four weeks after reopening of this Court following Puja Vacation or until further order/orders of this Court, whichever is earlier.
The petitioner is directed to serve the copy of the revisional application upon the opposite parties by speed post and shall file affidavit of service on the next date.
The revisional application shall appear in the supplementary list one week after reopening of this Court following Puja Vacation under the heading "Listed Motion".
ab (Harish Tandon, J.)