Calcutta High Court (Appellete Side)
Nripendra Nath Roy & Ors vs Barindra Nath Roy & Ors on 2 May, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 1364 of 2010 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Nripendra Nath Roy & ors.
Versus
Barindra Nath Roy & ors.
For the petitioners: Mr. Swapan Kumar Mallick, Mr. A. Roy.
For the opposite parties: None appeared.
Heard On: 28.03.2012 & 03.04.2012.
Judgement On: May 2, 2012.
Prasenjit Mandal, J.: This application is at the instance of the plaintiffs and is directed against the judgment and order dated April 9, 2010 passed by the learned Additional District Judge, 1st Court, Barasat in Misc. Appeal No.33 of 2009 thereby affirming the order of refusal to pass ex parte order of injunction at the initial stage passed by the learned Civil Judge (Senior Division), Barasat in Title Suit No.459 of 2008.
The petitioners instituted the aforesaid suit for partition, accounts and other reliefs. In that suit, they filed an 2 application for temporary injunction praying for restraining the defendants / opposite parties, their men and agents from interfering with or preventing from exercising rights of ownership in respect of the suit property and from possessing the suit property as described in the schedule of the plaint and other consequential reliefs in the said petition. That application was moved for ad interim ex parte order and upon consideration of the materials on record, the learned Trial Judge held that it was not proper to pass any order without giving an opportunity of being heard to the defendants.
Being aggrieved by such orders, the plaintiffs preferred a misc. appeal being Misc. Appeal No.33 of 2009 and that misc. appeal was also dismissed by the learned Appellate Court. Being aggrieved, this application has been filed.
Now, the question is whether the Appellate Court was justified in passing the impugned order.
Upon hearing the learned Advocate for the petitioners and on going through the materials on record, I find that the learned Appellate Court is justified in rejecting the prayer for temporary injunction.
The short fact is that as per plaint case, the plaintiffs and the defendant no.s 1 & 2 are the heirs of Late Jitendra Nath Roy and his wife Late Amiyabala Roy. Jitendra Nath Roy died in 1980 and Amiyabala Roy died on November 6, 1992 both intested. 3 Amiyabala was a housewife and her husband had income from his jewellery business.
The plaintiffs have contended that the suit property was purchased by Jitendra Nath Roy in the name of his wife in 1973 at a consideration of Rs.8,000/- only. After the death of Jitendra, all of his nine heirs inherited 1/9th share each and so, the plaintiffs have due share in the suit property.
On the other hand, defendant no.s 1 & 2 have claimed that the suit property was purchased by Amiyabala out of her own streedhan property and she gifted the suit property in favour of the defendant no.s 1 & 2 by a deed of gift dated October 17, 1987. On the basis of that deed of gift, an agreement was held between the defendant no.s 1 & 2 and the defendant no.s 3 & 4 and accordingly, the defendant no.s 3 & 4 are making construction over the property and the flats constructed thereon had been sold to the respective owners. The consideration money of Rs.8,000/- in the sale deed was low and Amiyabala could provide such money out of her own streedhan property and as such, when the deed of gift was executed by her in favour of the defendant no.s 1 & 2 and delivered possession to them, the plaintiff no.2 put his signature as witness thereon. So, the execution of the deed of gift was within the knowledge of the plaintiffs. Not only that subsequently the defendant no.s 1 & 2 obtained sanctioned plan for construction and the Baranagar Municipality granted sanctioned plan in 2007 and 4 construction had been made on the land in suit accordingly. So, plaintiffs were very much aware of the existence of such deed of gift during the lifetime of Amiyabala Roy, though, she died on November 6, 1992 and the suit was filed in the year 2008. Under the circumstances, the learned Appellate Court has held that the plaintiffs have no prima facie case. No balance of convenience or inconvenience in their favour and that they would not suffer irreparable loss, if the injunction is not granted.
Mr. Swapan Kumar Mallick appearing on behalf of the petitioners has submitted that by the provisions of the Benami Transaction (Prohibition) Act, 1988, the benami purchase in the name of close relation is not prohibited and in fact, the property had been purchased long time back before the enactment of the 1988 Act. The sale deed having been done in the year 1973 and the Act of 1988 having no retrospective effect, the suit property would be treated as the property of the father of the plaintiffs. So, after the death of Jitendra, the plaintiffs have due shares in the suit property and so, the findings of the Appellate Court are totally wrong. In dealing with an application for injunction, the merit of the suit need not be considered. What is to be seen whether there is a prima facie case to go for trial and the balance of convenience and inconvenience would be in whose favour, if the injunction is granted.
5
As noted above, the plaintiff no.2 was a witness to the deed of gift dated October 17, 1987. So, the plaintiffs were very much aware of the existence of the deed of gift. In the mean time, on the basis of the deed of gift, the defendant no.s 1 & 2 proceeded with the suit property and a multi-storied building had been constructed and flats were allotted to the intending buyers. Thus, huge investment had been made.
Under the circumstances, I am of the view that in exercising the jurisdiction of superintendence under Article 227 of the Constitution, the concurrent findings arrived at by both the Courts below in regard to injunction matter, should not be set aside. This application has, therefore, no merit at all.
Accordingly, the application is dismissed. 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.)