Calcutta High Court (Appellete Side)
(Disposed Of) vs Sk. Nurangagase & Ors on 16 January, 2018
Author: Harish Tandon
Bench: Harish Tandon
1 16.01.2018 CO 3960 of 2017 Court No. 02 Item No. SL - 09 snandy Masiur Rahaman Mallick @ Mullick & Ors.
(DISPOSED OF) Vs. Sk. Nurangagase & Ors.
Mr. Mahammad Mahmud, Advocate Mr. Padmolochan Sahoo, Advocate Mr. Arghya Charkaborty, Advocate ......for the Petitioner Mr. Buddhadev Ghosal, Advocate Mr. Udyan Datta, Advocate ......for the Opposite Party No. 1 This revisional application is directed against the order no. 20 dated November 20, 2017 passed by the learned Sixth Court of Civil Judge (Junior Division), Howrah in Title Suit No. 1327 of 2016 by which an application under Order 39 Rule 7 of the Code of Civil Procedure filed by the defendant nos. 1, 3, 4 and 5 is allowed.
The plaintiffs/petitioners filed a suit for declaration of title and permanent injunction restraining the defendants therein from interfering with the peaceful possession of the suit premises. It is alleged in the plaint that the property comprising more or less 18 decimals appertaining R.S. Dag Nos. 838 and 854 in Mouza - Unsani, under P.S. Jagacha, District - Howrah, originally belonged to Abdul Mannaf Sana and his wife and the record of right was accordingly corrected. The said Abdul Mannaf Sana transferred 4 decimals of land meant for Bagan out of which 7 decimals in R.S. Dag No. 838 and 8 decimals Doba land out of 11 decimals in R.S. Dag No. 854 to one Sk. Sabir Hossain by executing a deed of gift on July 8, 2009 which was duly registered in the registration office. Subsequently, his wife also transferred her right, 2 title and interest in respect of the aforesaid property in favour of the said Sk. Sabir Hussain by executing a separate deed of gift on August 24, 2015. Thus the said Sk. Sabir Hussain became the owner of 12 decimal of Bagan and Doba land and sold 8.70 decimals of Bagan and Doba land to the plaintiffs by executing a deed of sale duly registered in the registration office on March 10, 2016 for valuable consideration. It is further alleged that the defendants are ranked outsiders and creating obstruction and disturbances in peaceful enjoyment of the purchased property by the plaintiffs.
The contesting defendants alleged that the property originally belonged to one Akhtar Ali Mondal and upon his death devolves upon his son Mannaf Ali Mondal and Ahida Bibi. The Ahida Bibi was the widow of Akhtar Ali Mondal and upon her death her share devolved upon his only son i.e. Mannaf Ali Mondal and upon his death devolved upon his widow and four daughters. It is thus stated that Abdul Mannaf Sana has not divested his right title and interest in respect of the property and, therefore, the deed executed in favour the plaintiffs have no legal force and, therefore, no valid title passed to them on the basis thereof.
On the conspectus of the aforesaid facts stated in the plaint, an application for injunction was taken out and it is not in dispute that the court passed an ad interim order of injunction restraining the defendants from disturbing the peaceful possession and enjoyment in respect of the properties by the plaintiffs. The said ad interim order of injunction is continuing as the 3 application for injunction has not been disposed of finally. In the meantime, an application for implementation of the said order through police help was taken out and was eventually allowed on contest directing the police to see that the ad interim order of injunction is not violated and/or flouted by the defendants. An application for injunction came to be filed by the contesting defendants on a specific allegation that taking advantage of the order directing police to see that the ad interim order of injunction is not violated and/or duly implemented, they have raised certain constructions over the property and an appropriate order of injunction be passed in this regard. The said application for injunction is also pending before the court. In order to ascertain the real picture, an application for appointment of an Advocate Commissioner was taken out by the contesting defendants and by the impugned order the same has been allowed by the court.
The inspection is necessary as the point involved in the matter needs protection, preservation of the rights of the respective parties. There is a dispute over the title in respect of the suit property as both the parties are claiming their independent title over it. Initially, the order of injunction was restricted on the possession of the plaintiffs but if the allegation is made that taking advantage of an order directing the police to implement the said ad interim order of injunction the plaintiffs have made certain constructions impairing the value of the property and bringing the situation irreversible and in the event the suit fails, there is no 4 difficulty in appointing the Advocate Commissioner so that the situation and the real state of affairs be brought before the court.
It is submitted by the contesting defendants before this court that the Commissioner has already submitted the report and, therefore, this court does not find that any interference is required to the impugned order.
However, this court makes it clear that in the event, the plaintiffs take exception to the said report, it is open to the trial court to decide the same independently and without being swayed by any observations made hereinabove.
Both the injunction applications filed by the respective parties are otherwise ready for hearing and this court, therefore, requests the learned Judge in the court below to dispose of the same as expeditiously as possible and preferably within six weeks from the date of the communication of this order in accordance with law.
With these observations, the revisional application is disposed of. No order as to costs.
(Harish Tandon, J.) 5