Chhamir Ali Seikh & Anr vs Dulal Seikh
2021 Latest Caselaw 401 Cal

   25.
21.01.2021
  S.D.

                                    S.A. 453 of 2016
                                          With
                       CAN 2 of 2016 (Old CAN No. 11893 of 2016)

                                 Chhamir Ali Seikh & Anr.
                                           vs.
                                      Dulal Seikh

                   Mr. Biswarup Biswas
                   Mr. G.C. Samanta
                                           ...For the Appellants.

                   Mr. Biswarup Biswas, learned Advocate for the

             appellant submits that the appeal is within the short campus

             as the order passed as to whether the defendant/respondent

herein is the licensee in the suit property.

In re: CAN 2 of 2016 (Old CAN No. 11893 of 2016)

This is an application for injunction, which is taken up

for ex parte as the defendant/respondent has failed and

neglected to appear despite the service upon him. The

appellants/applicants filed Title Suit being Title Suit No. 15 of

2011 for revocation of licence and eviction of the defendant

against respondent. The said suit was dismissed by the Trial

Court by the judgment and decree dated 19.11.2014 and on

being aggrieved by the judgment of the Trial Court, the

plaintiffs/appellants herein moved the Title Appeal being No.

1 of 2015 which was decided by the Additional District and

Sessions Judge, Nabadwip, District - Nadia. The said Title

Appeal was dismissed by the judgment and decree dated

26.2.2016 thereby confirming the judgment and decree passed

by the Trial Court. It is submitted that the learned Appeal

Court has made observation that the plaintiff/appellants are

the joint owners in respect of the property with other co-

owners, but not with the defendant. My attention is invited

to inner page 9 of the judgment passed by the Trial Court in

Title Suit No. 15 of 2011 wherein the defendant/respondent

herein had taken the defence by contending that the suit

property is jointly owned by the plaintiffs with other co-

owners had not been party in the suit.

The judgment of the Trial Court has been affirmed by

the Appellate Court. So the fact of joint ownership of the

plaintiffs/appellants remains for the plaintiffs/appellants to

contend that they are the owners of the suit property. So if

that be so, the learned Appellate Court has made a contrary

view that the plaintiffs have failed to prove the ownership in

respect of Pan-Bidi Ghoomti that means Schedule 'Kha' of the

property. The substantial questions of law have already been

framed in this matter. Now, the Lower Court Records are

ready. Therefore, the plaintiffs/appellants will prepare one

informal Paper Book upon examination of the Lower Court

Records within six weeks from the date hereof. Now, upon

consideration of the application for injunction whereby the

plaintiffs/appellants have sought for an order of injunction

restraining the respondents from changing the nature and

character of the suit property and so also from alienating

property by creating any third party interest over the suit

property till the disposal of the appeal, let there be an order

of injunction restraining the respondents from changing

nature and character of the suit and from alienating the

property by creating third party interest till the disposal of

the appeal.

Let the appeal be heard finally on its merits after

compliance of all the formalities

Thus, CAN 2 of 2016 (Old CAN No. 11893 of 2016) is

disposed of.

There will be no order as to costs.

(Shivakant Prasad, J.)