A court cannot, by way of interim order granting mandatory injunction, compel a defendant to pay or deposit a certain amount as occupation charge in a suit for eviction of a trespasser, as such relief does not fall within the purview of Order 39, Rules 1 and 2 of the Code of Civil Procedure.

BHASKAR BHATTACHARYA, J. :- This first miscellaneous appeal is at the instance of a plaintiff in il suit for declaration of title, permanent injunction, mesne profit and is directed against Order No.5 dated 18th November, 2008, passed by the learned trial Judge thereby dismissing an application for temporary injunction filed by the appellant.

2. Being dissatisfied, the plaintiff has come up with the present first miscellaneous appeal.

3. The appellant before us filed in the Fourth Court of Civil Judge, Senior Division, Alipore, a suit being Title Suit No. 2541 of 2008 thereby praying for the following relief:

"a) A declaration that the plaintiff is the owner of the said flat, more fully and particularly described, in the Annexure-"A" to the plaint entitled to the quite, exclusive and vacant possession of the same to the exclusion of all others including the defendants and each of them;

b) A decree against the defendants and each of them including the defendant No.3 directing the eviction of each of them from the said flat more fully and particularly described in the Annexure-"A" to the plaint;

c) A decree against the defendants and each of them for recovery of quiet, vacant, peaceful and exclusive possession of the said flat more fully and particularly described in the Annexure-"A" to the plaint to the plaintiff;

d) A perpetual order of injunction be passed against the defendants and/or each of them by themselves or by their officers or agents or employees or servants or assigns or otherwise howsoever from entering upon or remaining or occupying and part or portion of the said flat, more fully and particularly described in the Annexure-"A" to the plaint. in any manner whatsoever;

e) A perpetual order of injunction be passed against the defendant~ and/or each of them by themselves or by their officers or agents or employees or servants or assigns or otherwise howsoever from disturbing or interfering with or obstructing the plaintiffs exclusive user, occupation arid enjoyment of the said flat, more fully and particularly described in the Annexure-"A" to the plaint.

in any manner whatsoever;

f) A decree for Rs. 70.0001- towards mesne profits against each oftI1e defendants as pleaded in paragraph ,22 hereof;

g) Alternatively. an enquiry to ascertain the mesne profits payable, by each of the defendants and a decree, for such sum as may be found due and .payable upon such enquiry;

h) For the purposes aforesaid all necessary enquiries. accounts and directions;

i) Receiver;

j) Injunction;

k) Attachment;

l) Costs;

m) Such further or other relief or reliefs as this Learned Court, may deem fit and proper. " 4. The case made out by the plaintiff was that there was an agreement for licence between the plaintiff and the defendant No. 1 for eleven months but even 'after the expiry of such licence the defendant No.3. the wife of the defendant No.2 had been staying in the suit property. According to the plaintiff, the defendant No.3. the wife of the director of the defendant No.1. is a rank trespasser and has no right to stay in the said flat.

5. In connection with the said suit. the plaintiff came up with an application under Order' No. 39 Rules 1 arid 2 of the Code of Civil Procedure thereby praying for temporary injunction as mentioned below:

"a) An order of temporary injunction restraining the respondents each of them, their servants, agents or assigns from in any way or manner interfering with the possession and right to enjoyment of the plaintiff in any way or manner whatsoever;

b) An order of temporary injunction restraining the respondents and each of them, by themselves or by their servants or agents or assigns or otherwise howsoever from in any way or manner disturbing the right title and interest of your petitioner of and in the suit flat

c) An order of temporary injunction restraining the respondent No.3, her men servants, agents and assigns from asserting for claiming any right of and in the suit flat in, any way or manner' howsoever or wha