Calcutta High Court (Appellete Side)
Samir Kumar Paul & Anr vs Smt. Minati Kha & Anr on 21 September, 2010
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 1680 of 2009 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Samir Kumar Paul & anr.
Versus
Smt. Minati Kha & anr.
For the petitioners: Mr. Sabyasachi Bhattacharya,
Mr. Rwitendra Banerjee.
For the opposite parties: Mr. Gopal Ghosh,
Mr. Sanjib Mukhopadhyay,
Mr. Jayanta Kr. Pain,
Mr. S. Khanna.
Heard On: 26.08.2010 & 06.09.2010.
Judgement On: September 21, 2010.
Prasenjit Mandal, J.: This application is at the instance of the defendants and is directed against the order no.11 dated March 23, 2009 passed by the learned Additional District Judge, Arambag in Misc. Appeal No.12 of 2008 affirming the order no.12 dated January 17, 2008 passed by the learned Civil Judge (Junior Division), First Court, Arambag in Title Suit No.52 of 2007. 2 The plaintiffs/opposite parties instituted the Title Suit No.52 of 2007 praying for a decree for removal and encroachment of possession of 'ka-1' shcedule property, as described in the schedule of the plaint and for permanent injunction in respect of the 'kha' schedule property of the plaint to the west and also adjacent eastern side 3 feet land of the 'ka-1' schedule property of the plaint all along north to south at the eastern side of the 'ka-1' schedule property of the plaint. In that application, the defendants/petitioners filed an objection. Upon consideration of the materials on record on behalf of both the parties, the learned Trial Judge allowed the application for temporary injunction filed by the plaintiffs. Being aggrieved, the defendants/petitioners preferred a misc. appeal being no.12 of 2008 which was also dismissed on contest affirming the order dated January 17, 2008 passed by the learned Trial Judge. Being aggrieved, this application has been preferred by the defendants. Mr. S. Bhattacharya, learned Advocate appearing on behalf of the petitioners, submits that his clients did not encroach any land of the plaintiffs at all. In fact, the portion of the land marking 'ka-1' is the land of the defendants for ingress and egress to his property which is situate towards east of the 'ka' schedule property possessed by the plaintiffs. Since 'ka-1' schedule property is the part and parcel of the property of the defendants, the plaintiffs cannot have any objection if at all 3 construction was made. In fact, a commissioner was appointed and he submitted his report stating that after the building of the defendants, there are lands measuring 15 feet towards west of the house of the defendants and the chamber of the privy was constructed 12' (feet) by 6'4" from the western wall of the house of the defendants. Still then, a piece of land measuring 3 feet in width from north to south towards west of the land of the defendants is kept and so the Panchayat Rules have not been violated at all. The report of the commissioner is clear that the defendants did not encroach any land of the plaintiffs rather he had left 3 feet width land from north to south towards west of his land as side space. So, the defendants did not violate any Panchayat Rules. In fact, because of such order of injunction, the defendants are not in a position to complete the privy to be used by them. So, the order of injunction should be vacated or at least the defendants should be permitted to complete the construction of the privy so that they can use it. He also contends that the Panchayat has not been made a party to the suit and so the suit is not maintainable in its present form.
On the contrary, Mr. Ghosh, learned Advocate appearing on behalf of the opposite parties, submits that 'ka-1' schedule property is not allotted to the defendants at all. It is part and parcel of the 'ka' schedule property and so the defendants had encroached upon the land of the plaintiff and they did not leave 4 any side space towards west of the concrete slab made by the defendant for the septic chamber of the privy. Moreover the defendants had also made one asbestos shed to cover the entire 'ka-1' schedule property and the water falls on the land of the plaintiffs, as mentioned in 'ka' schedule of the plaint. Therefore, if the order of injunction is not vacated or if the defendants are permitted to complete the privy, there would be an encroachment of the land of the plaintiffs and also the violation of the Panchayat Rules. So, the learned Trial Judge has rightly passed the impugned order.
Therefore, the point that arises for decision in this appeal is whether the impugned order can be sustained.
Upon hearing the learned Advocate for both the parties and on perusal of the materials on record, I find that admittedly both the plaintiffs and the defendants had purchased their respective parts of the land from the same vendor and that the land of the plaintiffs is situated towards the western side and the land of the defendants is situated towards the eastern side. A commissioner was appointed to inspect the suit premises and he submitted a report. According to the report of the commissioner, I find that 'ka-1' schedule property has been described as part of the 'ka' schedule property. To the west of the 'ka-1' property there is a brick built wall and from that brick build wall, the house of the defendant is 15 feet away. The defendants' two- 5 storied house is situated 15 feet away from the western wall of the 'ka-1' property. There is a shed from the western end of the house of the defendants extending up to the western end of the 'ka-1' schedule property and that shed is extended mere 1 feet to the towards of the wall of the 'ka-1' property. Water from that shed falls on the 'ka' schedule property.
The learned Advocate has also noticed that leaving of 3 feet space is only from the western wall of the 'ka-1' property, the defendants had made a septic tank measuring about 12 feet by 6 feet 4 inches space from the end of the house of the defendants towards west and the defendants had raised construction for a privy towards east from the western wall on 'ka-1' property leaving 3' feet space only. The roof of that privy had also been made by RCC slab. Thus, from the report of the commissioner, it appears that the defendants did not leave enough space towards west of his premises at least 3 feet towards the western side of his 'kha' schedule property. Even they had encroached the 'ka-1' property by making a construction of a chamber of the septic tank to the extent of 12 feet by 6'4" feet meaning thereby encroachment of about 3 feet of the 'ka-1' property which is 6 feet in width. The deed of the defendants as well as the plaintiffs lays down the sketch map but unless and until the extent of the area of the plaintiff as well as the defendants is determined along with the fact finding as to who is the owner of the 'ka-1' schedule 6 property or whether this is part and parcel of the property of the defendants, as claimed by the defendants for ingress and egress, I am of the view that till disposal of the suit, the property in suit should be kept in status quo. The matters in controversy before me are very much involved in the suit. So, unless the suit is decided finally, it cannot be decided as to who is the owner of the 'ka-1' schedule property.
This being the position, I am of the view that the learned Trial Judge was justified in granting temporary injunction, as prayed for by the plaintiffs. The learned Appellate Court has supported such an order of temporary injunction granted by the learned Trial Judge.
There being concurrent findings of fact, I hold that this court in exercising the revisional jurisdiction shall not interfere with the orders impugned which are based on materials on record. Therefore, the impugned orders should be sustained. The application fails to succeed. It is dismissed. It is hereby recorded that my observations are for the purpose of disposal of this revisional application and the learned Trial Judge shall be free to come to his independent decision on the basis of the materials on record at the time of disposal of the suit without being swayed away in any manner by the above observations.
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Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)