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2010 Supreme(Cal) 1109
HIGH COURT OF CALCUTTA
PRASENJIT MANDAL, J
P.S.Buildcon Pvt. Ltd - Appellant
Versus
Santanu Das – Respondent
Appeal No : C.O. No. 2718 of 2010 With C.O. No. 2719 of 2010
Decided On : Sep 02, 2010
A.K.Mittal, A.Mitra, J.Choudhary, P.R.Basu, D.Mukherjee, Sudhis Das Gupta, Probal Mukherjee, Suhrid Sur, Rajdeep Bhattacharya
A plaintiff seeking a temporary injunction must show a prima facie case, balance of convenience, and irreparable injury to succeed.
Headnote:
INJUNCTION - POSSESSION - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - VENDOR'S TITLE - OWNERSHIP - BOUNDARY WALL - POSSESSION - STATUS QUO - SUIT PROPERTY - SALE DEED - VENDORS - MUTATION - RENT - TEMPORARY INJUNCTION - OWNERSHIP - VENDOR'S TITLE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - STATUS QUO - SUIT PROPERTY - SALE DEED - VENDORS - MUTATION - RENT - TEMPORARY INJUNCTION
Fact of the Case:
Plaintiffs filed a suit seeking declaration of their right, title, and interest in the suit property, permanent injunction against defendants from disturbing their possession, and other reliefs. They claimed to have purchased 7 decimals of land from the heirs of Ohed Baksh Sarkar, who had died leaving 5 sons and 3 daughters as heirs. The defendants, on the other hand, contended that they had purchased the entire plot no. 241 from the heirs of Latika Das and the heirs of Ohed Baksh Sarkar and were in possession of the same.
Finding of the Court:
The court found that the plaintiffs had failed to show a prima facie case to proceed with the suit for trial as their vendors had already transferred their right, title, and interest in the suit property to two companies in February 1997. The court further held that the balance of convenience and inconvenience was against the plaintiffs and in favor of the defendants, as the plaintiffs would not suffer any irreparable loss by refusal of temporary injunction, while the defendants would suffer irreparable loss if injunction was granted.
Issues: 1. Whether the plaintiffs have shown a prima facie case to go for trial in the suit. 2. Whether the learned Appellate Court was justified in granting the order of status quo in disposing of the appeal.
Ratio Decidendi: 1. The plaintiffs failed to show a prima facie case to proceed with the suit for trial as their vendors had already transferred their right, title, and interest in the suit property to two companies in February 1997. 2. The balance of convenience and inconvenience was against the plaintiffs and in favor of the defendants, as the plaintiffs would not suffer any irreparable loss by refusal of temporary injunction, while the defendants would suffer irreparable loss if injunction was granted.
Final Decision: The court allowed the applications and set aside the impugned order passed by the learned Appellate Court, holding that the Appellate Court had committed errors of law in passing the impugned order.
Prasenjit Mandal, J.
1. TheSE two applications are at the instance of the defendants and are directed against the orders dated August 17, 2010 passed by the learned Additional District Judge, Fifth Court, Barasat in Misc. Appeal No.53 of 2010 and Misc. Appeal No.54 of 2010 respectively. Since the common question of fact and law is involved in the two applications, the two applications are disposed of by this common judgment. It will be convenient to discuss the fact of the C.O. No.2718 of 2010.
2. The plaintiffs/opposite parties filed the suit being No.417 of 2007 praying for a decree of declaration and plaintiffs' right, title and interest in the suit property, permanent injunction against the defendants restraining them from disturbing the plaintiffs' peaceful possession over the suit property and other reliefs. The plaintiffs contended that one Wahed Bux Sarkar @ Ohed Baksh Sarkar was in exclusive possession of the suit property measuring 7 decimals of land, as described in the schedule of the plaint. The total area of the said plot no.241 was to the extent of 52 decimals of land. The Government of West Bengal acquired 30 decimals of land therefrom and the remaining portion of the land containing an area of 22 decimals was possessed by the said Ohed Baksh Sarkar. He died leaving four sons and one daughter as his heirs and his heirs were in joint possession in respect of their proportionate shares. An amicable partition was held amongst the heirs of Ohed Baksh Sarkar and by virtue of such amicable settlement, three sons got the said portion of the suit plot and they transferred their right, title and interest in favour of one Dulal Ch. Jana by a registered deed of sale in 1987 and delivered possession. There was an oral agreement for re-conveyance and so subsequently the deed of re-conveyance was executed by Dulal Ch. Jana in 1989 in favour of two sons as the other son, namely, Nur Mohammed, did not intend to get back such property. The vendor delivered possession in favour of the two sons of Ohed Baksh Sarkar accordingly, namely, Amhed Ali Sarkar and Iman Ali Sarkar.
In fact, the suit property was possessed by Amhed Ali Sarkar and Iman Ali Sarkar and their sister Jaimunnecha Bibi. Amhed Ali Sarkar died in 2001 leaving his widow, three sons and two daughters as his legal heirs. They were also in joint possession with the other heirs as stated. Such joint owners intended to sell 7 decimals of land to the plaintiffs and accordingly the plaintiffs purchased the said portion at a consideration value of Rs.48,00,000/- only in 2006 by a registered deed and thus the plaintiffs became the owner of the said property. These 7 decimals of land comprise the suit property, as described in schedule A to the plaint and their names have been duly mutated with the Government of West Bengal and they paid rents. The defendant nos.1 to 8 are the sellers from whom the plaintiffs acquired the schedule A property. These defendants with an ulterior motive gave proposal to the plaintiffs to sell out the said A schedule property in favour of them or to enter into an agreement for development with the defendant nos.9 to 37 for making construction of multi-storied buildings. The plaintiffs did not agree to such proposal. For that reason, the defendants are trying to dispossess the plaintiff from A schedule property and for that reason they are trying to start construction works on A schedule property. Immediately after purchase, the plaintiffs made construction of the boundary wall surrounding the A schedule property. But the defendants in collusion with each other demolished a portion of such boundary wall with a view to raising structures over the A schedule property and for that reason they already stored the building materials just in front of the suit property. So, the plaintiffs were compelled to file the suit for the reliefs, stated earlier.
3. AT the time of filing the suit, the plaintiffs prayed for temporary injunction before the learn
