Failure to make a prayer for mandatory injunction and settled principles of law on mandatory injunction led to the dismissal of the appeal.

SHIVAKANT PRASAD, J.

1. This is an application under Article 227 of the Constitution of India challenging an order dated 15.02.2010 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta in Misc. Appeal No. 01 of 2007 arising out of rejection of an application under Order 39 Rule 1 & 2 read with Section 151 of Code of Civil Procedure in Misc. Case No. 128 of 2003 wherein the petitioner had prayed for mandatory injunction under Section 151 of Code of Civil Procedure read with Section 39 of Specific Relief Act.

2. The petitioner son of Hazi Abdul Mazid Qureshi filed a Misc. Case being No. 128 of 2003 claiming title independent of the judgment debtor Smt. Bani Dutta alleging illegal dispossession by execution of ejectment decree passed in Ejectment Suit No. 2683 of 2000 (Smt. Kanak Prava Sarkar Vs. Smt. Bani Dutta) passed by the learned Judge 3rd Bench, Small Causes Court, Calcutta. He filed an application under Order 21 Rule 29 of the CPC in ejectment case being Execution No. 346 of 2001 registered as Misc. Case No. 49 of 2003 and an application under Order 39 Rule 1 and 2 read with Section 151 of CPC was filed, challenging the execution of the decree and dispossession of the petitioner in view of the provision of Section 141 of the Code of Civil Procedure.

3. Specific case of the petitioner is that his father (since deceased) was a monthly tenant in respect of the premises No. 72/A, Acharya Prafulla Chandra Road, Kolkata-700 009 under opposite party nos. 1 and 3 and the predecessor-in-interest of said opposite party nos. 4(a) and 4(b). The petitioner as one of legal heirs was ordinarily residing with his father at the time of his death on May 7, 2003. The opposite party nos. 5 to 10 are the other legal heirs of late Hazi Abdul Mazid Qureshi who had died at his ancestral home in Memary, Burdwan. The opposite party nos. 1 and 2 were duly authorized by their mother Kanak Prava Sarkar under a power of attorney to induct tenant into the said premises and to collect rents. According to him, said Bani Dutta had surrendered the tenancy and vacated the premises in favour of the said mother of opposite party nos. 1 and 2 on August 25, 1992. Petitioner’s said father had tendered a lump sum of Rs. 4,500/- as rent for the month of October 1992 to December 1993 @ 150/- per month in respect of each portion in the ground floor and the other on the first floor of the suit premises as one time payment to the opposite party nos. 1 and 2 in cash without issuance of any receipt for the same. Hazi Abdul Mazid Qureshi had paid consolidated taxes and water bills to the Kolkata Municipal Corporation and telephone bills raised by the Calcutta telephone now Bharat Sanchar Nigam Limited for providing new telephone connection being No. 3511616 renumbered as 23511616. Correspondence from the banks postal authorities, the return of money orders showing remittance of rent by him to the opposite party nos. 1 and 2 and even the name of the petitioner and his family members in the electoral roll are the documents showing the address at the suit premises.

4. It is also submitted that the opposite party nos. 1 and 2 practised fraud on the Court by institution of Ejectment Suit being No. 465 of 1997 against Bani Dutta who was not the tenant in respect of the said premises as she had surrendered her tenancy to said Kanak Prava Sarkar on August 25, 1992 and she never possessed the suit premises after August 25, 1992 as such, she had no interest to defend the suit. It is further submitted that a new tenancy was created in the name of the father of the petitioner but the opposite party nos. 1 and 2 deliberately omitted to array him in the Ejectment Suit No. 456 of 1997 which was renumbered as Ejectment Suit No. 2683 of 2000 on being transferred to the Small Causes Court, Bench-III and was decreed ex parte by the judgment and the decree dated January 9, 2001 and in execution thereof, the petitioner was dispossessed by practising fraud on the Court as