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,
____Defendant
no. 2 /Appellant
-
Versus –
Rejak
Ali Mondal, and Others,
______Plaintiffs/
Respondents
An
application for Stay of an 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;
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 by the Learned Civil Judge (Junior Division), 2nd
Court, Baruipur, South 24 Parganas, in Title Suit no. 147 of 2023, 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.
17.
That the appellant beg to states 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.
18.
That the appellant beg to states 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.
19.
That the appellant beg to states 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.
20.
That the appellant beg to states 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.
21.
That the appellant beg to states that the
Injunction Order no. 02, dated 02-03-2023, passed by the Learned Civil Judge
(Junior Division), 2nd Court, Baruipur, South 24 Parganas, in Title Suit no.
147 of 2023, 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.
22.
That the appellant beg to states 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.
23.
That the appellant beg to states 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.
24.
That the appellant beg to states 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.
25.
That in the given facts, your
appellant seeks stay of the operation of the 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, till disposal of the present
Misc. Appeal, in the interest of administration of Justice.
26.
That unless the Learned Court grant
stay of the operation of the 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, till disposal of the present Misc. Appeal, the
Defendant no. 2, /Appellant will highly prejudice and suffer with irreparable
loss and injury, thereof.
27.
That preponderance of balance of
convenience and inconveniences are in favour of the appellant, and the
Plaintiffs/ Respondents, will not prejudice.
28.
That this application is made bonafide
and in the interest of Justice.
It is therefore prayed that your
Honour would graciously be pleased to pass an order of stay of the operation of
the 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, till disposal of the present Misc. Appeal, and or to pass such other
necessary order or orders as your Honour may deem, fit, and proper for the end
of justice.
And
for this act of kindness, the petitioner as in duty bound shall ever pray.
Documents relied upon by the appellant;
1. R.S. R.O.R. & L.R.R.O.R.
2. Khazna Dakhila;
3. Mutation Certificate of
Rajpur-Sonarpur Municipality;
4. Assessment and Tax Receipt of
Municipality;
5. Sale Deed dated 21-09-1982;
6. Agreement for Development with
appellant;
7. Development Power of Attorney,
in favour of the appellant;
8. Declaration of Boundary Wall;
9. Copy of Order no. 02, dated
02-03-2023, passed in Title Suit No. 147 of 2023, by the Learned Civil Judge (Junior
Division), Baruipur, South 24 Parganas;
Documents given by the Plaintiffs/
Respondents;
1.
Postal Envelop
2.
Notice of Temporary Injunction;
3.
Notice to Show Cause;
4.
Copy of Plaint;
5.
R.S. R.O.R & L.R. R.O.R. and
Server Copy;
VERIFICATION
I, Sujit Saha, being
the Defendant no. 2/ appellant, made this application for stay of the operation
of the Order no. 02, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by
the Learned Civil Judge (Junior Division), Baruipore, South 24 Parganas, before
the Learned Court. I am conversant and acquainted with the material facts and
circumstances, given in the foregoing paragraphs of the application. I am
verifying and sign this petition on _____the day of March’ 2023, at Baruipur
Civil Court Premises.
AFFIDAVIT
I, Sri Sujit Saha,
Son of Late Amar Chandra Saha, aged about 56 years, by faith Hindu, by
Occupation Business, residing at Village Peyarabagan, Post Office Lashkarpur,
Police Station – Narendrapur, Kolkata – 700153, District South 24 Parganas, do
hereby solemnly affirm and says as follows;
1.
That I am the Defendant no. 2/
appellant in the present Misc. Appeal. I am conversant and acquainted with the
material facts of the present case. I am competent to swear this affidavit.
2.
That the statement in paragraph number
1 to 16, are true to the best of my knowledge and belief and the rests are my
humble submissions before the Learned Court.
That
the statements made above are true to the best of my knowledge and belief.
DEPONENT
Identified
by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
: _____the day of March’ 2023;
Place
: Baruipur Civil Court;
NOTARY
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