District
: South 24 Parganas
In
the Court of the Learned Civil Judge (Senior Division), Baruipur, South 24
Parganas
Misc.
Appeal no. of 2023
Arising
out of
Title
Suit no. 147 of 2023
In
the matter of ;
Sri
Sujit Saha, Son of Late Amar Chandra Saha, aged about 56 years, residing at
Village Peyarabagan, Post Office Lashkarpur, Police Station – Narendrapur,
Kolkata – 700153, District South 24 Parganas,
______Defendant no. 2 /Appellant
-
Versus –
1)
Rejak Ali Mondal, Son of Late Golam
Mohammad Mondal, residing at Village and Post Office – Chowhati, Police Station
– Sonarpur, District South 24 Parganas,
2)
Masura Bibi Halder, Wife of Late
Mobarak Halder, residing at Village and Post Office – Bonhooghly, Police
Station – Sonarpur, District South 24 Parganas,
3)
Dulal Haslder, Son of Mobarak Halder,
residing at Village and Post Office – Bonhooghly, Police Station – Sonarpur,
District South 24 Parganas,
4)
Sariful Halder, Son of Late Mobarak
Halder, residing at Village and Post Office – Bonhooghly, Police Station –
Sonarpur, District South 24 Parganas,
5)
Layela Khan, Wife of Kalu Khan,
residing at Bonhooghly Khan Para, Police Station Sonarpur, Post Office –
Bonhooghly, District – South 24 Parganas,
6)
Sajeda Khatoon, Daughter of Late
Mobarak Halder, residing at Village and Post Office – Bonhooghly, Police
Station – Sonarpur, District South 24 Parganas,
7)
Salima Seikh, Wife of Julu Seikh,
residing at Village – Dakhin Shalpukur, Police Station Bishnupur, Post Office –
Nepalgunj, District South 24 Parganas,
8)
Salema Mondal, Wife of Late Bablu
Mondal, residing at Bonhooghly Mir Para, Post Office School Math, Police
Station Naredrapur, District South 24 Parganas,
9)
Runa Mondal, Wife of Siraj Mondal,
residing at Village – Poleghat, Post Office – Rajpur, Police Station –
Sonarpur, District South 24 Parganas,
10)
Safura Sardar, Wife of Ajgar Seikh,
residing at Village – Natunhat, Post Office – Natunhat, Police Station –
Sonarpur, District South 24 Parganas
______Plaintiffs/
Respondents
Appeal
Valued Rs. 100/-
Most respectfully
sheweth as under;
1.
That the Plaintiffs/ Respondents, has
filed a Suit being T.S. no. 147 of 2023, for Permanent Injunction, against the
appellant/ Defendant no. 2, and another person namely Smt. Basanti Ghosh, in
respect of a Plot of Land measuring about 6 Decimals under Mouza – Laskarpur
Gram, R.S. Khatian No. 411 & 226, corresponding to L.R. Khatian No. 1021,
R.S. Dag no. 575, corresponding to L.R. Dag no. 1283, within Police Station
previously Sonarpur, at present Narendrapur, District South 24 Parganas.
2.
That the Respondents/ Plaintiffs have
described devolution of the Property upon them through inheritance and the
appellant/ defendant no. 2, and said Smt. Basanti Ghosh has been described as
Outsider.
3.
That by Order no. 2, dated 02-03-2023,
the Learned Civil Judge (Junior Division), 2nd Court, Baruipur,
South 24 Parganas, heard the Injunction application under Order XXXIX Rule 1
& 2, read with Section 151 of C.P.C. and was pleased to pass the Order of
Status Quo with regard to the nature and Character of Possession of the Suit
Property till 31-05-2023.
4.
That incompliance with Order 39 Rule
3(a) and 3(b), the Respondents/ Plaintiffs have served copies of the Injunction
application upon the appellant.
5.
That the appellant has obtained
certified copies of the Orders, passed by the Learned Court and the Copy of the
Plaint and the Copy of the injunction application.
6.
That a look into the copy of the
plaint reveals that the appellant and one Basanti Ghosh have been described as
outsider in respect of the Suit Property.
7.
That it is the case of the appellant
that one Sukanto Dutta Gupta Son of Sukumar Dutta Gupta, is the Owner of the
Suit Property, who purchased the same on 21-09-1982, from said Basanti Ghosh,
who has expired long ago.
8.
That the Owner of the Suit Property,
namely Sukanto Dutta Gupta after purchasing the suit property, has mutated his
name, before the concerned B.L. & L.R.O. and accordingly his name is
appearing in both the R.S. R.O.R. and
L.R. R.O.R. Said Sukanto Dutta Gupta, being the Owner of the said Suit
Property, has been paying Taxes before the concerned Authority. He has also
paid Property Tax against valid receipts.
9.
That under the afore-stated background
said Sukanto Dutta Gupta, clearly is the Owner of the Suit Property, who has
appointed the appellant as Developer, to develop the said suit property. In
terms of the Development Agreement considerable construction work has been
done. As such the respondents /plaintiffs are no body to the suit property, who
have instituted the suit being T.S. no. 147 of 2023, by producing manufactured
documents, and making false averment to non-suit the appellant.
10.
That the said Suit filed by the
Respondents/ Plaintiffs, is not maintainable since they have made Basanti Ghosh
as defendant no. 1, who is a Dead Person, and expired long before institution
of the suit.
11.
That the Injunction Order no. 02, dated
02-03-2023, passed in T.S. no. 147 of 2023, by the Learned Civil Judge (Junior
Division), 2nd Court, Baruipur, South 24 Parganas, is patently wrong
as the Learned Court has allowed the injunction application and passed the
order of ad-interim injunction, which has been filed against the dead person.
The appellant is not the Owner of the Suit Property, the Owner of the Suit
Property, has not been made a party to the Suit.
12.
That the Learned Court below while
passing the ad-interim order has passed the final order of the suit, since the
respondents/ plaintiffs have prayed for a Decree restraining the appellant from
changing nature, character of the suit property, in addition to further
restrainment upon the appellant in not evicting the defendants/ plaintiffs, and
further restrainment in not transferring the suit property to a third party. As
such the prayer of the suit and that of the ad-interim injunction application
are same. The Learned Court below has missed to appreciate that in guise of
ad-interim order the plaintiffs/ respondents have prayed for the final order,
which is not permissible by the law of the Land.
13.
That the Learned Court has Firstly,
passed the ad-interim order of injunction against a dead person, Secondly, the
recorded Owner of the Suit Property, has not been made a party, and Thirdly,
Final Order has been passed, in the form of ad-interim injunction.
14.
That the appellant reproduced the
operative portion of the Order no. 2, dated 02-03-2023, passed in Title Suit
no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd
Court, Baruipur, South 24 Parganas, in the following;
“Considering
the above facts and circumstances, it appears that the Plaintiffs have a Prima
facie case. They have filed certified copies of RS RORs and LR RORs in support
of their prima facie case and dispute. If time is consumed in serving notices
to the principal defendants and in the mean time, the suit property is not
preserved, then the plaintiffs may suffer irreparable loss and injury which may
not be compensated later on. The object of injunction will be defeated by delay
caused in serving the notices.
Issue
notices upon the principal defendants, calling upon them to showing-cause
within fifteen days from the date of receipt of this order as to why temporary
injunction shall not be granted as per prayer of the plaintiffs.
Hence,
it is Ordered that both the plaintiffs and the principal defendants (1&2)
are directed to maintain an order of status quo with regard to the nature
character and possession of the schedule suit property as on this day till
31-05-2023”
15.
That the Order no. 2, dated 02-03-2023,
passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior
Division), 2nd Court, Baruipur, South 24 Parganas, is patently wrong
and erroneous and thus not sustainable in the Law.
16.
That being aggrieved and dissatisfied
with the Order no. 2, dated 02-03-2023, passed in Title Suit no. 147 of 2023,
by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur,
South 24 Parganas, the appellant beg to prefer the present Misc. Appeal, on the
following amongst other ;
GROUNDS
I.
For that the Trial Court is wrong and
unjustified in granting Ad-interim order of Injunction as prayed for by the
respondents/ plaintiffs;
II.
For that the Order no. 2, dated
02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge
(Junior Division), 2nd Court, Baruipur, South 24 Parganas, is
patently wrong and erroneous and thus not sustainable in the Law;
III.
For that it is the case of the
appellant that one Sukanto Dutta Gupta Son of Sukumar Dutta Gupta, is the Owner
of the Suit Property, who purchased the same on 21-09-1982, from said Basanti Ghosh,
who has expired long ago;
IV.
For that the Owner of the Suit
Property, namely Sukanto Dutta Gupta after purchasing the suit property, has
mutated his name, before the concerned B.L. & L.R.O. and accordingly his
name is appearing in both the R.S. R.O.R. and
L.R. R.O.R. Said Sukanto Dutta Gupta, being the Owner of the said Suit
Property, has been paying Taxes before the concerned Authority. He has also
paid Property Tax against valid receipts;
V.
For that under the afore-stated
background said Sukanto Dutta Gupta, clearly is the Owner of the Suit Property,
who has appointed the appellant as Developer, to develop the said suit
property. In terms of the Development Agreement considerable construction work
has been done. As such the respondents /plaintiffs are no body to the suit
property, who have instituted the suit being T.S. no. 147 of 2023, by producing
manufactured documents, and making false averment to non-suit the appellant;
VI.
For that the said Suit filed by the
Respondents/ Plaintiffs, is not maintainable since they have made Basanti Ghosh
as defendant no. 1, who is a Dead Person, and expired long before institution
of the suit;
VII.
For that the Injunction Order no. 02, dated
02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge
(Junior Division), 2nd Court, Baruipur, South 24 Parganas, is
patently wrong as the Learned Court has allowed the injunction application and
passed the order of ad-interim injunction, which has been filed against the
dead person. The appellant is not the Owner of the Suit Property, the Owner of
the Suit Property, has not been made a party to the Suit;
VIII.
For that the Learned Court below while
passing the ad-interim order has passed the final order of the suit, since the
respondents/ plaintiffs have prayed for a Decree restraining the appellant from
changing nature, character of the suit property, in addition to further
restrainment upon the appellant in not evicting the defendants/ plaintiffs, and
further restrainment in not transferring the suit property to a third party. As
such the prayer of the suit and that of the ad-interim injunction application
are same. The Learned Court below has missed to appreciate that in guise of
ad-interim order the plaintiffs/ respondents have prayed for the final order,
which is not permissible by the law of the Land;
IX.
For that the Learned Court has
Firstly, passed the ad-interim order of injunction against a dead person,
Secondly, the recorded Owner of the Suit Property, has not been made a party,
and Thirdly, Final Order has been passed, in the form of ad-interim injunction;
X.
For that the Order no. 2, dated
02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge
(Junior Division), 2nd Court, Baruipur, South 24 Parganas, is based
on surmises and conjecture and liable to be set aside.
XI.
For that, the impugned order is
otherwise bad in law and it should be dismissed in limini.
It is therefore, prayed that Your Honour would graciously be
pleased to admit the appeal, call for the records of the Lower Court and after
hearing to set aside the impugned Order no. 2, dated
02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge
(Junior Division), 2nd Court, Baruipur, South 24 Parganas, and pass such other order or orders as Your Honour may deem fit
and proper.
CERTIFICATE
I certify that I have examined the papers supplied to me and that
in my opinion there are good grounds, as above set forth for this appeal, and I
undertake to appear and support the appeal before the appellate Court.
Advocate
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