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IN THE HIGH COURT AT CALCUTTA
Shampa Dutt (Paul), J.
Umapada Bandopadhyay – Appellant
Versus
Gouri Shankar Mahato & Ors. – Respondents
FMA No. 338 of 2012 (FMAT No. 1583 of 2012) With IA No.CAN 1 of 2011 (Old No. 11742 of 2011) CAN 23 of 2012 (Old No. CAN 10419 of 2012)
Decided On : 25-06-2024
Injunction - Partition Suit - Order 39 Rule 1 and 2, Section 44 - The court discussed the principles for granting interim injunctions, emphasizing the need for a prima facie case, balance of convenience, and irreparable injury, ultimately allowing the appeal for an injunction.
Fact of the Case:
The plaintiff sought an injunction against defendants who were allegedly selling portions of undivided property inherited from a deceased ancestor, claiming irreparable harm and asserting a prima facie case of ownership.
Finding of the Court:
The court found that the plaintiff had established a prima facie case and that the balance of convenience favored granting an injunction to prevent irreparable harm until the case was resolved.
Issues: Whether the plaintiff established a prima facie case for an injunction and whether the balance of convenience favored granting such relief.
Ratio Decidendi: The court held that a prima facie case must be shown for an injunction, and the balance of convenience must favor the plaintiff to prevent irreparable harm.
Result: The appeal is allowed, and the order under appeal is set aside, granting the injunction as prayed for.
JUDGMENT :
Shampa Dutt (Paul), J.
1. The Appeal has been preferred against Order No. 2 dated 12.12.2011 passed by the Learned Civil Judge Senior Division in Charge, at Asansol in Title Suit No. 169 of 2011 (Umapada Bandyopadhyay –Versus- Gouri Shankar Mahato & Ors.)
2. The said order under appeal in a suit for partition is as follow :
Order No. 2 dated 12/12/2011
Ld. Advocate for the plaintiff moved the petition. U/O 39 R.1 and 2 dated. 03.12.2011. Ld. Advocate for the plaintiff also prayed for an ad-interim order of injunction.
Perused the documents.
It is admitted that plaintiff has purchased an undivided share of the property which is not demarcated yet from the joint owner of the property. Considered the prima facia case. Considered the balance of convenience and inconvenience. Considered the chances of irreparable injury.
Hence Ordered,
Issue notice upon the defendant no.1 to 8 to show cause within 7 days from the date of receipt of the notice as to why the plaintiff’s petition for temporary injunction shall not be allowed.
Requisite at once.
Fix 13/01/2012 for return of notice.
I have not found any extra ordinary urgency to pass any ad-interim order. So, the prayer for ad-interim order is hereby refused at this stage.
Sd/-
C.J. Sr. Divn. In-charge, Asansol”
3. The Appellant/Plaintiff’s case is that :-
ii) The said Lokan @ Lokhan Mahato died intestate on 10.02.1991 leaving behind his three sons i.e. Defendants/Respondents Nos. 1, 2 and 3 and three daughters i.e. Defendant/Respondents No. 8 and Proforma Defendant/Respondents Nos. 9 and 10 as his sole heirs and successors, who have jointly inherited the said land and property each having one Sixth Share therein.
iii) That one of the sons of said Lokan @ Lokhan Mahato (since deceased) namely Gouri Shankar Mahato, the Defendant/Respondent No.1 filed a Suit for partition against the other Legal heirs of said Lokan @ Lokhan Mahato (since deceased), being Title Suit No. 130 of 1992 in the Court of the Assistant District Judge at Asansol praying interalia for Partition of the said/and by metes and bounds and for declaration of his undivided 1/6th share therein.
iv) Title Suit No. 130 of 1992 was dismissed for default on 06.05.1993.
v) That two daughters of the said Lokan @ Lokhan Mahato (Since deceased) i.e. Proforma Respondents Nos. 9 & 10 have transferred their respective 1/6th share regarding the said land and property in favour of the Plaintiff/Appellant by virtue of a Registered Deed of Sale being No. 2411 for the year 2011 of Asansol Sub-Registry office and the Plaintiff/Appellate became/become the owner to the extent of 1/3rd undivided share of the said land and property.
vi) That the Defendants/Respondents No. 1 & 2 mischievously sold and are selling portions of the aforesaid land and property to different purchasers projecting themselves as the absolute owners thereof, exceeding their respective 1/6th shares therein.
vii) The Defendants/Respondents No.4 to 7 allegedly purchased different undivided portions of the said land and are illegally trying to grab and cover the best portion of the said land unlawfully.
viii) That the entire land is undivided and joint and no partition and apportionment has taken place in respect of the said land, till date.
ix) That Defendants/Respondents No.1 and 2 in collusion with Defendants/Respondents No. 4 to 7 are trying to grab and erect illegal construction over the best portions of the undivided Joint land for which the Plaintiff/Appellant will suffer
Grant or refusal of interim relief/temporary injunction - Usually, prayer for grant of an interlocutory injunction is at a stage when the existence of legal right asserted by plaintiff and its allege....
The court emphasized the importance of establishing a prima facie case, balance of convenience, and irreparable loss when considering the grant of injunction in property disputes.
Point of law: If an injunction is obtained falsely stating that High Court has refused to grant an injunction and when the same is also not considered on main and it will be considered along with mai....
To obtain an interim injunction, a party must demonstrate a prima facie case, irreparable injury, and balance of convenience favoring the injunction.
Court could not have come into finding that there was a balance of convenience in not granting an injunction.
A plaintiff with clear title and possession can seek an injunction against interference, even in the face of disputed title, provided they substantiate their claims with appropriate evidence.
(1) Injunction – Such three ingredients are not only to exist but must co-exist – Prima facie case is not to be confused with prima facie title, which requires to be established on evidence at trial.....
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