Calcutta High Court (Appellete Side)
Anup Kumar Nandi vs Arup Kumar Nandi & Ors on 12 December, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
FMAT 1046 of 2016
with
CAN 10198 of 2016
Anup Kumar Nandi
Vs.
Arup Kumar Nandi & Ors.
Mr. Biswaroop Bhattacharya
Mr. Dipayan Kundu
Mr. Subhrajyoti Dey
... For the appellant.
Heard on : 12.12.2016.
Judgment on : 12.12.2016.
Jyotirmay Bhattacharya, J.
Re: CAN 10200 of 2016 The father of the appellant, namely Anil Kumar Nandi was the defendant no. 2 in the suit. He died intestate on 23rd July, 2016. All the legal heirs and representatives of the said Anil Kumar Nandi are on record in different capacities. Since all the legal heirs and representatives of the said deceased are already on record, formal substitution is not needed. Hence, the application for recording the death of Anil Kumar 2 Nandi, defendant no. 2 is allowed with a note that all the legal heirs and representatives of the said Anil Kumar Nandi are already on record.
The application is thus disposed of.
This first miscellaneous appeal is directed against an order being No. 53 dated 14th July, 2016 passed by the learned Civil Judge (Senior Division) at Kalna in Misc. Violation Case No. 02 of 2014 at the instance of the defendant no. 1/appellant.
By the impugned order the appellant's application under Order 39 Rule 2A of the Code of Civil Procedure leading to filing of the said Misc. Violation Case No. 02 of 2014 was dismissed on contest. The legality of the said order is under challenge in this first miscellaneous appeal.
Let us consider as to how far the learned trial Judge was justified in dismissing the said miscellaneous case of the defendant no. 1/appellant in the facts of the present case.
The said miscellaneous case was filed by the defendant no.1/appellant complaining violation of the order of injunction passed by the learned trial court on 15th March, 2013 whereby both the plaintiff and the defendants were directed to maintain status quo as regards possession of the suit property. The said interim order was extended from time to time. However, ultimately the interim order was vacated on 27th January, 2014 vide Order No. 12. The application for violation of the injunction order was filed by alleging that the plaintiff/respondent no. 1 has violated the order of injunction.
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Fact remains that a deed of gift was executed by Anil Kumar Nandi, the defendant no. 2, in favour of his two grand daughters, namely the daughters of the plaintiff/respondent no.1. The said deed of gift was accepted by the plaintiff on behalf of the donees. The aforesaid miscellaneous case was thus filed by the defendant no. 1/appellant complaining that transfer of the suit property by Anil Kumar Nandi and acceptance thereof by the plaintiff/respondent no.1 during the time when the injunction order was in force amounts to violation of the order of status quo.
Learned trial Judge rejected the said miscellaneous case filed by the appellant on two-fold grounds, which are as follows: -
(1) The date, when the deed of gift was executed by the donor and/or accepted by the plaintiff on behalf of the minor donees, has not been mentioned in the application under Order 39 Rule 2A of the Code of Civil Procedure.
(2) The applicant has failed to prove that possession of the suit property was delivered by the donor to the donees.
These are the two grounds on which the application under Order 39 Rule 2A of the Code of Civil Procedure was rejected.
In this regard, we have considered the pleadings of the respective parties. Though it was mentioned in the application under Order 39 Rule 2A of the Code of Civil Procedure that the photocopy of the deed of gift was annexed thereto but the exact date of execution of the said deed of gift and the date of registration thereof have not been mentioned in the said application. 4
Be that as it may, injunction was not a blanket injunction. Injunction was restricted to the possession only. As such, in order to succeed in such an application, the applicant will have to prove that the donees and/or the plaintiff being the guardian of the minor donees actually accepted possession of the suit property from the donor either on the date of execution of the said deed of gift or on any subsequent date during the continuance of the order of status quo.
The donor himself adduced evidence in the said proceeding. He stated that possession was not delivered to the plaintiff though he executed the said deed of gift. There is no material to show before the Court that the possession of the suit property was either delivered by the donor to the donees on the date of execution of deed of gift or on any subsequent date during the continuance of the order of status quo.
Since the appellant has failed to prove that possession was taken over by the plaintiff/respondent no. 1 from the donor during the subsistence of the order of injunction in the form of status quo, we are of the view that the learned trial Court was justified in rejecting the application under Order 39 Rule 2A of the Code of Civil Procedure.
We, thus, do not find any merit in this appeal. The appeal, thus, stands dismissed. Since the appeal is dismissed, no further order need be passed on the stay application. The application for stay is thus dismissed.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) ap