1. This application is at the instance of the plaintiffs and is directed against the order no.30 dated June 16, 2009 and the order no.57 dated June 17, 2010 passed by the learned Civil Judge (Junior Division), Second Court, Alipore in Title Suit No.17 of 2006.
2. The short fact is that the plaintiffs/petitioners herein filed the said title suit being Title Suit No.17 of 2006 praying for several counts of declarations, permanent injunction and other reliefs. The contention of the plaintiffs is that they are the joint 50% owners in respect of the 3 storied building at 10/1/C, Swinhoe Street under Police Station Gariahat, Kolkata 700 019. The defendant / opposite party is the wife of late Saroj Kumar Mazumdar and the latter was the uncle of the plaintiffs. The suit properties originally belonged to late Kamal Basini Mazumdar and by a deed of gift dated August 30, 1967, she gifted the said property in equal shares to the plaintiffs jointly to the extent of 50% and to one Binay Krishna Mazumdar, paternal uncle of the plaintiffs to the balance 50% share and thus, the plaintiffs became the 50% owners of the undivided properties including the suit premises, as described in the schedule to the plaint.
3. Thereafter the Binay Krishna Mazumdar executed a Will on November 18, 1983 in favour of his daughter, proforma defendant and that Will was duly probated. Thus, she became the rest 50% owner of the properties. The husband of the defendant resided permanently in England and he seldom came to India. He died in England on May 5, 2001 leaving behind his wife and a son as heirs. During his visits to India, Saroj Kumar Mazumdar stayed with the plaintiffs and for that reason, under different declarations, Saroj Kumar Mazumdar was allotted the suit premises with a right to reside therein whenever he visited India. At that time, the plaintiffs were minors and for that reason, the mother of the plaintiffs signed the deed of declaration on behalf of the two minors. Saroj Kumar Mazumdar was given the right of residence in the suit premises, which was nothing but a leave and licence. After the death of Saroj Kumar Mazumdar, his wife, defendant gave an advertisement in the newspaper for sale of the suit premises. At that time, the plaintiffs have challenged the right of the defendant and filed the suit for the reliefs already stated.
4. During the pendency of the suit, the defendant contended that on taking the opportunity of her absence, the plaintiffs forcibly took away the possession of the suit premises violating the order of status quo and for that reason, she filed an application under Section 151 of the C.P.C. for restoration of her possession of the suit premises. That application was allowed by the impugned order. The plaintiffs filed an application for review of the same, which was rejected by the learned Trial Judge. These two orders are under challenge in this application.
5. Now, the question is whether the impugned orders are justified.
6. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiffs have filed the suit praying for several declarations, such as, declaration that the right of residence granted to Saroj Kumar Mazumdar was of personal nature and not transferable or assignable at all, declaration that Saroj Kumar Mazumdar had no right, title and interest in the suit property save right to enjoy by him personally, declaration that the deed of partition giving separate possession to Saroj Kumar Mazumdar automatically terminated on May 5, 2001 and that the plaintiffs and the proforma defendant have become the owners of the said suit premises in equal share, declaration that the suit premises allotted to Saroj Kumar Mazumdar was neither transferable nor heritable by his legal heirs, permanent injunction restraining the defendant, her men and agents from transferring / disposing of the suit premises, etc.
7. At the time of filing of the suit, the plaintiffs filed an application for temporary injunction and they prayed for ad interim injunction. The learned Trial Judge rejected the prayer for ad interim injunction. The plaintiffs preferred a misc. appeal being Misc. Appeal No.114 of 2006 against the order of rejection. An ad interim injunction order was passed directing the parties to maintain status quo on March 7, 2006 in the said misc. appeal. The learned Districtg Judge granted the ad interim order of status quo in respect of possession, nature and character of the suit property in the said misc. appeal. It is to be noted herein that the said misc. appeal had been disposed of but the application for temporary injunction is still pending for disposal.
8. It is contended by the opposite party that in spite of such orders, on January 28, 2008 at 9.30 a.m. the petitioners took forcible possession of the suit premises violating the order of status quo and for that reason, the application under Section 151 of the C.P.C. was filed.
9. Therefore, in order to ascertain whether forcible possession was taken by the petitioners, it is necessary to decide prima facie whether the opposite party had possession over the suit premises.
10. I have described earlier that the plaintiffs have filed the suit for declarations and permanent injunction and they have not filed the suit for any relief for recovery of possession. They have filed the suit as if they have full control / possession over the suit premises.
11. The plaintiffs have admitted in their plaint that Saroj Kumar Mazumdar was allotted the suit premises by a deed of partition and declarations were given by the father of the proforma defendant and the mother of the plaintiffs to the effect that Saroj Kumar Mazumdar would possess the suit premises. So, from such deeds of declarations as well as partition, it is apparent that Saroj Kumar Mazumdar was in possession of the suit premises. Not only that the defendant has filed other papers, such as, payment of taxes to the municipality as well as charges for consumption of electricity for possession of the suit premises. On the other hand, the plaintiffs could not show any paper that they had possession of the suit premises to the extent of 50%, as claimed by them. Rather it is the admission of the plaintiffs in their plaint that Saroj Kumar Mazumdar was allowed the suit premises exclusively for the purpose of staying during his visits to India and for that reason, partition and the two deeds of declaration, as stated earlier, were done/executed by the father of the proforma defendant and the mother of the plaintiffs on their behalf. The plaintiffs are also basing their plaint case on the arrangement of such two deeds of declaration. Under the circumstances, I find that the learned Trial Judge has rightly observed that the Saroj Kumar Mazumdar was, prima facie, in possession of the suit premises.
12. It is contended on behalf of the plaintiffs before me that the Court was not justified in granting the relief as made by the impugned order while disposing of an application under Section 151 of the C.P.C. 13. There are other modes of reliefs. The defendants could have taken steps for violation of the order of injunction under Order 39 Rule 2A of the C.P.C.
14. Admittedly, Saroj Kumar Mazumdar died on May 5, 2001. I have stated above that the learned District Judge granted the order of status quo in respect of the suit premises upon both the parties. The defendant has contended that in spite of such orders, forcible possession of the suit premises had been taken by the plaintiffs on January 28, 2008 at 9.30 a.m. Since, there is no material on behalf of the petitioners that the possession of the suit premises was taken out from the deceased Saroj Kumar Mazumdar or his heirs, it is obvious that the possession remains with his heirs. Unless and until the same is taken away from them by due process of law, the defendant is entitled to protect their possession. Therefore, the observations of the learned Trial Judge that prima facie it has been established that the defendant was in possession of the suit premises at the time of filing of the suit, cannot be thrown away.
15. Mr. Moitra, learned counsel for the petitioners, refers to the decision of AIR 1990 SC 867 and he submits by referring to paragraph no.14 as to the principle of granting injunction. This decision particularly paragraph no.14 lays down the general guidelines as to granting of mandatory injunction. The guidelines referred to in the said paragraph are in favour of the defendant in the instant case for the reasons discussed above, that is, the defendant has shown that she was, prima facie, in possession of the suit premises, that the intervention by the Court is necessary to prevent irreparable or serious injury and that the balance of convenience is in favour of the defendant. Therefore, I am of the view that this decision does not favour the petitioners at all. The basic principles in granting the mandatory relief have been fulfilled by the defendant.
16. On the other hand, the learned Advocate for the opposite party, refers to the decisions of 2008(1) CLJ (Cal) 209, 2001(1) CHN 42, (2006) 3 SCC 312, (1996) 4 SCC 622, AIR 1986 Cal 220, AIR 1985 Cal 248 which clearly lay down that when forcible dispossession has been made in violation of an interim order, the Court has the inherent power to grant temporary mandatory injunction to restore possession and exercise of such power can even be entertained on an application under Section 151 of the C.P.C. The learned Trial Judge has the right to pass appropriate orders on an application under Section 151 of the C.P.C. to restore possession as it was before the institution of the suit. In view of the above findings and the decisions of the Honble Apex Court as well as our High Court, I am of the view that the learned Trial Judge was justified in disposing of an application under Section 151 of the C.P.C. by giving a direction for restoration of possession as it was before the institution of the suit. The application for review has, therefore, been rightly rejected subsequently.
17. Under the above circumstances, I am of the view that the learned Trial Judge has exercised his jurisdiction properly. There is nothing to interfere with the impugned order. So, this application fails to succeed. It is, therefore, dismissed. Since the period to hand over possession has already lapsed, the petitioners are directed to restore possession in favour of the defendant/opposite party herein within 30 days from date. They are also directed to hand over the keys to the defendant/opposite party accordingly.
18. It is also recorded that the above findings are for the purpose of disposal of this application only. The learned Trial Judge shall not be influenced in any way while dealing with the application for temporary injunction. He shall dispose of the same in accordance with law.
19. Considering the circumstances, there will be no order as to costs.
20. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.