Smt. Durga Mondal vs Smt. Pritikana Saha Roy & Ors
2021 Latest Caselaw 134 Cal

  04.
12.01.2021
  S.D.


                                     F.M.A. 185 of 2021
                                           With
                         CAN 1 of 2019 (Old CAN No. 10798 of 2019)

                                     Smt. Durga Mondal
                                              Vs.
                                Smt. Pritikana Saha Roy & Ors.



                          Mr. Haradhan Banerjee
                          Mr. Amitava Pain
                          Mr. Subrangshu Dutta
                          Mr. Partha Pratim Mukhopadhyay
                                              ... for the Appellant.

                          Mr. Aniruddha Chatterjee
                                             ...for the respondent.



                   At the outset, Mr. Haradhan Banerjee, learned Advocate

             appearing for the appellant invites my attention to the order

             dated 2.1.2020 passed by a Division Bench of this Hon'ble Court

             whereby direction was given for service upon the opposite party

             and pursuant thereto, Mr. Aniruddha Chatterjee, Advocate has

             entered appearance on behalf of the respondent opposite party.

             By the said order, the stay of the operation of the judgment and

             decree impugned has been granted for a period of six weeks or

             until further orders.

                   Now the application for stay is taken up for hearing. At

             this stage of hearing, Mr. Aniruddha Chatterjee learned Advocate
                           2




for the respondent submits that he has filed a separate suit for

specific performance an agreement for sale by and between his

client and the client of Mr. Banerjee. Admittedly, the appellant is

the owner of the property in question.       The suit for specific

performance of contract has not yet been concluded and is

pending for trial.     That apart, a separate case before the

Consumer Forum has also been filed on by his client.

      That the application for stay of the suit being Title Suit No.

56 of 2013 is pending in the Court of 3rd Civil Judge (Senior

Division) after remand is taken up for consideration.

      Background

leading to the instant appeal and stay of

operation of the remand order is that the appellant/plaintiff had

filed a suit against the defendants for declaration of title in

respect of the 'A' scheduled property and injunction restraining

the defendants, initially against the defendant nos. 1 and 2 from

interfering with the plaintiff's possession of the property

described in the schedule 'A' to the plaint. During the pendency

of the suit, the transferee being defendant nos. 3, 4 and 5 filed an

application for addition of party and filed counter claim for

declaration of their title in the property described in the schedule

'B' to the plaint and also for a decree for a permanent injunction

restraining the defendant nos. 1 and 2 from interfering with the

possession of the defendant nos. 3, 4 and 5 to the 'B' scheduled

property. A multistoried building was raised on the land as per

the sanctioned plan and all the flats constructed by the plaintiff

which have been sold to different purchasers including the 'B'

scheduled property to the defendant nos. 3, 4 and 5 excepting the

entire first floor of the building and two rooms in the ground

floor thereof which was and is in possession of the plaintiff as

owner. Accordingly, a part decree in respect of the title in respect

of the first floor and the two rooms in the ground floor which is

part of the 'A' scheduled property has been sought for against the

defendant nos. 1 and 2 so that a decree of permanent injunction

can be granted forbidding them from disturbing the peaceful

possession in respect of the entire first floor of the building and so

also the two rooms in the ground floor which is part of the 'A'

scheduled property.

It is submitted that the defendant nos. 1 and 2 had admitted

the title of the plaintiff by virtue of the agreement for sale

executed by the plaintiff in favour of defendant no. 1 which has

been restricted to the second floor of the building for selling the

flat on the terms and conditions mentioned in the agreement for

sale. But no possession was at all delivered as per the

performance of the contract. Mr. Chatterjee, learned Advocate for

the respondent has agreed to such fact of existence of an

agreement for sale in his favour in respect of the entire second

floor.

Mr. Banerjee submits that the said agreement has been

cancelled because of the default in payment of the installment as

per the agreement and now, the plaintiff has already disposed of

by sale to third party the premises measuring 600 sq. ft. in the

second floor and defendant nos. 3 to 5 who filed a counter suit

which has been decreed in favour of the defendant nos. 3 to 5, but

the respondent has not preferred any appeal against the counter

decree in respect of the counter claim by defendant nos. 3 to 5.

This fact so submitted by Mr. Banerjee is not true fact as per

submission made by Mr. Chatterjee.

Be that as it may, since the appeal is required to be heard on

its merit, let the appeal be listed for its final hearing on 2.2.2021 at

2 p.m.

Let Lower Court Records be called for through Special

Messenger at the cost of the appellant.

Let there be an order of stay of the operation of the

impugned judgment and decree dated 10.2.2017 in Title Appeal

No. 33 of 2017 passed by 1st Additional District Judge at Howrah

till the end of February 2021.

Accordingly, CAN1 of 2019 (Old CAN No. 10798 of 2019) is

disposed of.

Liberty is given to pray for modification and/or variation

and extension.

Parties are at liberty to settle their disputes out of the Court,

if they so wish.

Urgent photostat certified copies of this order, if applied

for, be given to the parties upon compliance of the formalities.

(Shivakant Prasad, J.)