Calcutta High Court (Appellete Side)
Ashutosh Karan & Anr vs Contai Municipality & Ors on 10 November, 2014
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
4 10.11. M.A.T. 1763 of 2014
ns 2014 With
CAN No.9758 of 2014
Ashutosh Karan & Anr.
Versus
Contai Municipality & Ors.
Mr. Soumen Kr. Dutta,
Mr. Subhas Jana ... for the appellants.
Mr. Debasish Ghosh,
Mr. Nilanjan Adhikari ... for the respondent no.3.
Mr. Kalipada Chakraborty .. for the respondent nos.6 to 9.
The appellants are none other than the writ petitioners whose writ petition came to be dismissed on the ground that the writ petitioners are no more the owners of the property. Admittedly, the writ petitioners had filed an original suit making the party respondent as defendant complaining interference with his peaceful possession and enjoyment of the suit property, thereby seeking declaration and injunction against the 3rd party respondent. Admittedly, municipality concerned is not a party to the suit. However, parties to the suit were directed to maintain status quo.
When such being the position, the respondent / defendant approached the municipality concerned for measurement of the property by appointing a surveyor and accordingly, a notice came to be issued to the writ petitioners / appellants. Aggrieved by the same, the writ petition is filed contending that when the suit is pending consideration before the Civil Court wherein the disputed questions of fact one alleged that the defendant has encroached the property of the plaintiff or plaintiff has encroached upon the property of the defendant is to be resolved, municipality could not have initiated such 2 proceedings. However, at the time of admission of the writ petition it was urged that the property in question no longer stands in the name of the writ petitioners as the same has been sold to the other party, hence suit was not maintainable. This submission was accepted.
The appellants are before us contending that in the light of Section 52 of the Transfer of Property Act, the outcome of the litigation would determine the rights of the parties, therefore there was no justification in the order of the learned Single Judge. The appellants' counsel further submits that the property is now transferred in the name of his own daughter, therefore, there was justification to continue the writ proceeding.
The 3rd party respondent submits that the daughter of the appellants engaged surveyors to measure the properties and therefore after taking part in such survey, there is no justification in proceeding with the appeal.
So far as the stand of the municipality, according to them in the light of status quo order by Civil Court, parties to the suit ought not to have proceeded further in the matter without the leave of the Court and therefore now the municipality is not acting upon the application of respondent / defendant or request of the appellant herein as they would abide by the outcome of the Civil Suit.
If the property were to be transferred to third parties and if he / she has taken participation in the measurement proceeding, it is altogether a different matter. In other words, initiation of proceedings in the name of appellant by the municipality would not arise even otherwise as the property does not belong to appellant / writ petitioner any more.
However, in the light of submission of learned standing counsel for municipality that they would not proceed further, we are of the opinion, nothing remains 3 for consideration, we record the submission of learned counsel for municipality and dispose of the appeal without any order as to costs.
Urgent certified copy of this order, if applied for, be given to the parties, on priority basis.
( Manjula Chellur, Chief Justice ) ( Arijit Banerjee, J.)