Calcutta High Court (Appellete Side)
Shri Rajesh Kumar Chowdhury vs Balkishori Devi & Ors on 9 March, 2021
09.03.2021.
84
AS
F.A.169 of 2019
With
CAN 1 of 2021 (Old CAN 11147 of 2019)
Shri Rajesh Kumar Chowdhury
Vs.
Balkishori Devi & Ors.
Mr. Gopal Ghosh,
Mr. Debapratim Banerjee.
... for the appellant.
Despite service there is no representation on
behalf of the respondents.
The suit for partition was dismissed by the trial
court on the ground that the factum of acquisition of
property by the father of the plaintiff in the name of
the defendant no.1 has not been proved and,
therefore, the reliefs claimed in the suit for partition
is not maintainable.
The said judgment and decree has been carried
to this Court and an application for injunction was
taken out alleging that taking advantage of the
dismissal of suit, the respondents are interfering with
the possession of the present appellant in respect of
the portion in his possession.
While passing an ad-interim order, this Court
noticed that the respondent no.2 filed an eviction suit
against the plaintiff for recovery of possession on the
strength of the title describing the portion in
possession of the plaintiff at the suit premises. This
Court passed an ad-interim order of injunction
restraining the respondent no.2 from interfering with
the possession of the appellant in respect of the
property shown in the schedule appended to the
plaint of the eviction suit for a period of six weeks
from date.
In the absence of the respondents, more
particularly, the respondent no.2, we are not in a
position to ascertain any other facts and, therefore,
we have to proceed on the basis of the statements
made in the instant application by the appellant.
The fact remains that a suit for recovery of
possession was filed against the plaintiff/appellant
and the schedule of the plaint discloses the portion
for which such recovery is sought. The aforesaid fact
raises an inference that the plaintiff/appellant was
held to be in possession of such portion for which the
recovery of possession was sought for. No person
should take the law in his own hand. If the person is
found in settled possession as the suit for recovery of
possession was filed, such possession cannot be
disturbed except with due process of law.
We thus made the ad-interim order passed on
15th February, 2021 absolute and to continue till the
disposal of the instant appeal.
The application being CAN 1 of 2019 (Old CAN
11147 of 2019) is disposed of.
The appellant is directed to communicate this
order to the respondents by speed post and shall file
affidavit of service on the next date of hearing when
the matter shall be listed.
Let the hearing of the appeal be expedited.
Let the Lower Court Record be called for
through the Special Messenger at the cost of the
appellant. Such cost shall be put in within a week
from date.
The appellant shall also file the requisites in
effecting the service of notice of appeal upon the
respondents. Such requisites shall be file within a
week from date.
Immediately after arrival of the Lower Court
Records, office shall examine the same and if found
complete, shall issue notice of arrival of Lower Court
Records on the Advocate-on-record of the appellant
under Rule 12 of Chapter IX of the Appellate Side
Rules.
The appellant is directed to prepare and file
eight copies of informal paper books- printed,
typewritten or cyclostyled, as the case may be- out of
court, within a period of eight weeks from the date of
service of notice of arrival of record.
All other formalities regarding preparation of
paper books are dispensed with.
After the service is effected upon the
respondents and the paper book is filed by the
appellant within the time hereinabove, liberty is
granted to the parties to pray for early disposal of the
instant appeal.
Urgent photostat certified copy of this order, if
applied for, be given to the parties on priority basis.
(Harish Tandon, J.)
(Kausik Chanda, J.)
