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2003 Supreme(Cal) 332
High Court Of Calcutta
PRANAB KUMAR CHATTOPADHYAY
SACHI PRASAD MUKHERJEE - Appellant
Versus
PAMPA KUMAR - Respondent
C. O. 3281 Of 2002
Decided On : 07/09/2003
BIKASH MUKHERJEE, HIRONMOY BHATTACHARJEE, JYOTIRMOY BHATTACHARYA, SABYASACHI BHATTACHARYA, Sudhis Das Gupta
A plaintiff is entitled to an injunction to restrain the defendants from alienating the suit property during the pendency of the suit, if he has made out a prima facie case for grant of injunction and the balance of convenience is in his favor.
Headnote:
PARTITION SUIT - INJUNCTION - EX PARTE DECREE - AUCTION SALE - LIMITATION - PRANAB KUMAR CHATTOPADHYAY, J. - In a suit for partition, the plaintiff filed an application for temporary injunction restraining the defendants from alienating the suit property during the pendency of the suit. The trial court initially granted an ad interim injunction but later vacated it. On appeal, the lower appellate court dismissed the appeal on the ground that the defendants had already sold the suit property. The plaintiff filed a revision petition in the High Court.
Fact of the Case:
The plaintiff filed a suit for partition of the suit property. The plaintiff also filed an application for temporary injunction restraining the defendants from alienating the suit property till the disposal of the suit. The trial court initially passed an ad interim order of injunction directing both the parties to maintain status quo in respect of the suit property but ultimately the said prayer for temporary injunction was rejected by the learned Assistant District Judge on contest and the order of status quo granted earlier was also vacated.
Finding of the Court:
The High Court held that the lower courts erred in rejecting the plaintiff's prayer for temporary injunction. The High Court found that the plaintiff had made out a prima facie case for grant of injunction, as he had been in possession of the suit property all along and had no occasion to doubt the sale and/or transfer of the same in favor of anybody till the said fact was disclosed in the written objections by the heirs of Taraprasad before the trial Court.
Issues: Whether the plaintiff had any right in respect of the suit property in view of the ex parte decree passed in S. C. C. Suit No. 511 of 1953 and sale of the suit property in execution of the said decree in connection to Misc. Execution Case No. 3 of 1955.
Ratio Decidendi: The High Court held that the plaintiff had made out a prima facie case for grant of injunction, as he had been in possession of the suit property all along and had no occasion to doubt the sale and/or transfer of the same in favor of anybody till the said fact was disclosed in the written objections by the heirs of Taraprasad before the trial Court. The High Court also held that the lower courts erred in not taking note of the subsequent events, as mentioned in the application filed by the plaintiff/petitioner herein before the said First Appellate Court on 1st February 2001.
Final Decision: The High Court allowed the revision petition and quashed the impugned order passed by the lower appellate court. The parties were directed to maintain status quo as regards possession in respect of the suit property and they were also restrained from changing the nature and character of the suit property under any circumstances.
( 1 ) THIS revisional application under Article 227 of the constitution of India is at the instance of the plaintiff in a suit for partition and is directed against the order dated 14th August 2002 passed by the learned Additional district Judge (1st Court), krishnagar, Nadia in Misc. Appeal No. 16 of 1999 thereby affirming the order dated 29th january 1999 passed by the learned Assistant district Judge (1st Court), Krishnagar, nadia in Title Suit No. 50 of 1997.
( 2 ) THE plaintiff filed the suit for partition of the suit property as described in the schedule of the plaint. The plaintiff also filed an application in connection to the said suit under Order 39, Rule 1 and 2 of C. P. C. read with Section 151 of the Civil Procedure Code praying for temporary injunction restraining the defendants from alienating the suit property till the disposal of the suit.
( 3 ) FROM the records it appears that the suit property originally belonged to one kunja Kamini Devi. The said Kunja Kamini devi died in the year 1941 leaving behind her son Jyotindra Nath Mukherjee as her sole legal heir. Her other two sons namely, satyendra Mukherjee and Haripada mukherjee died during the life time of their mother, Kunja Kamini Devi. After the death of Jyotindra Nath Mukherjee his two sons namely, Taraprasad Mukherjee and Sachi prasad Mukherjee inherited the property as the legal heirs of the said Jyotindra Nath mukherjee and got 8 annas each in the suit property.
( 4 ) ACCORDING to the plaintiff, Taraprasad mukherjee used to look after the entire suit property as younger brother, Sachi Prasad mukherjee used to live outside and taking such advantage Taraprasad Mukherjee managed to get his name recorded in the r. S. Record of rights as sole owner in respect of the entire suit property.
( 5 ) IT has been alleged that the said taraprasad Mukherjee subsequently in collusion with one Prabhabati Dasi filed suit being S. C. C. Suit No. 511 of 1953 through one Ranjit Pal Chowdhury and no notice of the said S. C. C. Suit was ever served upon sachi Prasad Mukherjee and ultimately the said suit was decreed on 29th June 1953. The said decree was subsequently executed through Money Execution Case No. 3 of 1995.
( 6 ) DURING execution of the said decree the suit property was sold in auction and prabhabati Dasi purchased the same in auction. It has been contended by the opposite parties that Prabhabati Dasi used to possess the suit property through Taraprasad mukherjee who was her religious brother and therefore, Prabhabati Dasi allowed recording of the suit property in the name of taraprasad Mukherjee in R. S. Record of rights.
( 7 ) SUBSEQUENTLY, Prabhabati Dasi gifted her property which is the suit property herein to Smt. Indira Mukherjee, wife of taraprasad Mukherjee by registered deed of gift on 13th January 1996 and on 14th january 1996 Taraprasad Mukherjee died. Smt. Indira Mukherjee died on November 1997 leaving behind the defendant Nos. 2 and 3 who are the opposite party Nos. 1 and 2 herein.
( 8 ) THE plaintiff filed the suit for partition after the death of the said Taraprasad mukherjee as according to the plaintiff, defendants refused to take steps for partition of the suit property amicably.
( 9 ) LEARNED Counsel of the plaintiff submitted before this Court that the filing of the Money Suit being S. C. C. Suit No. 511 of 1953 against Taraprasad Mukherjee, Sachi prasad Mukherjee and Ramabati Devi before the learned First Munsif, Krishnanagar and the decree passed on the said suit on june 21, 1953 and also the auction sale of the suit property in execution of the Money decree in connection to Money Execution case No. 3 of 1955 were not known to the plaintiff. According to the learned counsel of the plaintiff/petitioner, the said fact was disclosed for the first time by the defendants in the written objections filed by the defendants against the plaintiffs petition for injunction under Order 39, Rules 1 and 2 read with Se
