Calcutta High Court (Appellete Side)
Biswajit Das vs Ratna Das on 18 June, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
18.6.2019
05
md. F.M.A 591 of 2019
(F.M.A.T. 346 of 2019)
With
CAN 3952 of 2019
Biswajit Das
Vs.
Ratna Das
Mr. Sarbesh Pal
.. for the appellant
Mr. Ranjit Kumar Roy
.. for the respondent
The appeal arises out of an order dated March 01, 2019 rejecting the appellant-plaintiff's interlocutory prayers in a suit relating to a trust property.
According to the appellant, his paternal grandfather settled the property in 1982 in favour of the family deity and the deed of settlement spoke of the widow of the settlor to be a trustee after the settlor and the widow having the right to appoint other trustees. The widow appointed the appellant's father and such father's sister as trustees. The appellant's father has died and the appellant's aunt, as the sole surviving trustee, is administering the trust. The reliefs claimed in the plaint are, inter alia, for a declaration that the appellant is a co-owner of the property. Nothing in the body of the plaint, however, indicates how the appellant claims such right. 2 In the order impugned, the court below observed that though a case of a trust was made out in the plaint, it was not a pure case of trust. However, the court below also noticed that no charges of mismanagement or devastation or the like had been made out against the surviving trustee to entitle the appellant herein to any order.
Given the frame of the suit, the trial court cannot be faulted for refusing to grant any interlocutory order. The appellant seeks to make out a bigger case than what is made out in the plaint.
Since it is elementary that unless there are exceptional situations like subsequent events, the plaintiff's case has to be based on the plaint which is the plinth of the action, the order impugned does not call for any interference. However, in so much as the plaintiff seeks to assert that even the daily seva puja is not being conducted or that the surviving trustee is seeking to alienate the property or create third party interest therein, it will be open to the appellant to take appropriate steps in accordance with law notwithstanding the pendency of the suit and the refusal of the interlocutory orders therein.
F.M.A. 591 of 2019 and CAN 3952 of 2019 are disposed of without any order as to costs.
Certified photocopies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Sanjib Banerjee, J.) (Suvra Ghosh, J.) 3