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2018 Supreme(Cal) 886
IN THE HIGH COURT AT CALCUTTA
SAHIDULLAH MUNSHI, J.
Smt. Chitra Adhikari Shroff – Appellant
Versus
Sri Gautam Shroff & Ors. – Respondent
C.O. No. 2241 of 2016
Decided on : 25-07-2018
Advocate Appeared:
For the Appellant : Mr. Saptangsu Basu, Mr. Nilanjan Bhattacharjee, Mr. Sukanta Chakraborty, Mr. Anindya Halder, Adv.
For the Respondent: Mr. Raja Basu Chowdhury, Mr. Tanmay Chakraborty, Mr. Kamal Krishna Pathak, Mr. Souvik Maji, Adv.
The petitioner must prove her possession and dispossessing by the defendants to claim restoration of possession.
Headnote:
Restoration - Possession - Code of Civil Procedure - Section 151, Order XXXIX, Rules 1 and 2 - The court discussed the petitioner's right of residence in the suit property, her possession, and the application for restoration of possession. The court also considered the contradictory statements made by the petitioner and the subsequent purchasers' possession of the property. The court held that the petitioner failed to prove her possession and dispossessing by the defendants, and thus, the application for restoration of possession was dismissed.
Fact of the Case:
The petitioner, wife of defendant no.1, filed a suit for restoration of her possession in the suit property, claiming her right of residence and maintenance. She alleged dispossession and sought restoration of possession.
Finding of the Court:
The court found that the petitioner failed to prove her possession and dispossessing by the defendants. The court also noted contradictory statements made by the petitioner and the subsequent purchasers' possession of the property.
Issues: The main issue was the petitioner's claim for restoration of possession based on her right of residence and alleged dispossession.
Ratio Decidendi: The court held that the petitioner failed to prove her possession and dispossessing by the defendants, and thus, the application for restoration of possession was dismissed.
Final Decision: The application for restoration of possession was dismissed. The order impugned was affirmed.
JUDGMENT :
Sahidullah Munshi, J.
1. This revisional application is directed against order no.31 dated 18th April, 2016, passed by the learned Civil Judge (Senior Division), 1st Court at Alipore, 24-Parganas (South), in Title Suit No.491 of 2014. By the order impugned, the learned Court below has rejected the petitioner’s application under Section 151 of the Code of Civil Procedure wherein she prayed for restoration of her possession in the suit property. It is the petitioner’s case that being the wife of defendant no.1, she has a right of residence at the suit property. According to the petitioner, her husband, defendant no.1, entered into an agreement with the developer who agreed to sell the flat in question being the suit property to the defendant no.1 on consideration mentioned in the agreement. According to her, possession was handed over to the defendant no.1 and being the legally married wife, she was living in the suit premises with her husband. The petitioner, apprehending dispossession at the instance of the defendant no.1, filed a suit for declaration contending, inter alia, that being legally married wife, she is entitled to get maintenance from the defendant no.1 and that she has a right of residence in the suit property and the same be charged against the maintenance of the plaintiff. She also prayed for permanent injunction restraining the defendant and/or his men, agents from selling, transferring, alienating, encumbering and/or disturbing peaceful possession and/or ousting the plaintiff from the suit property and/or from causing any physical violence upon the plaintiff in any manner whatsoever. According to the plaint, a copy of which annexed to the petition, the suit property is a flat being no.6D containing a built up area of 1094 Sq.ft. more or less on the 6th floor of the Block – A of the Building Complex lying and situated at premises no.264, Netaji Subhas Chandra Bose Road, Police Station – Jadavpur, Kolkata – 700047, District – South 24-Parganas.
2. In that suit, the petitioner filed an application for temporary injunction under Order XXXIX, Rules 1 and 2 and also prayed for ad interim injunction. In the temporary injunction application, the petitioner contended that defendant is the sole and absolute owner of the suit property. After purchase of the suit property, the plaintiff and defendant, being husband and wife, shifted to the suit property and made the same habitable. The defendant, in a pre-planned manner, left the suit property without any intimation to the plaintiff on 31.10.2014 and since then the plaintiff had been residing in the suit property alone and was in exclusive possession thereof. It was further contended that the plaintiff is residing in the suit property but the defendant, with his mala fide intentions and to succeed in his cunning plans in various ways, was making conspiracy to oust the plaintiff from the suit property though the plaintiff had every right over the suit property and also had right of residence thereat.
3. It is in the injunction application that on 22nd November, 2014, the defendants, along with their men and agents and their muscle men, came to the suit property and tried to oust the plaintiff therefrom forcefully and illegally but somehow, the plaintiff, with the help of local people, restrained the defendant and his men and agents and others from causing such physical violence and dispossession of the plaintiff. But the defendant, at the time of leaving the suit property, threatened the plaintiff with dire consequences and told that he would come back again and take forcible possession of the suit property. With this background and the averments made in the injunction application, the plaintiff made a prayer for an order of temporary injunction restraining the defendant and /or his men and agents from selling, transferring, alienating, encumbering and/or from disturbing the peaceful possession and/or ousting the plaintiff from the suit property and/or from causing
