Calcutta High Court (Appellete Side)
Sri Sailen Sarkar vs Sri Rathindra Nath Gayen & Ors on 12 March, 2021
S/L 46
12.03.2021
GB
CAN 1 of 2020
In
C.O. 3664 of 2019
Sri Sailen Sarkar
Vs.
Sri Rathindra Nath Gayen & Ors.
(Through Video Conference)
Mr. Dilip Kumar Sanyal,
Mr. Gourab Ghosh.
... for the Petitioner.
This revisional application has been filed against an
order dated November 24, 2019 passed by the learned Civil
Judge (Senior Division), Baruipur, District 24 Parganas
(South) in Misc. Appeal No.25 of 2019.
Misc. Appeal No.25 of 2019 was filed by the petitioner
being aggrieved by an order dated July 19, 2021, by which
the learned Civil Judge (Senior Division), Baruipur, District
24 Parganas (South) refused the prayer for ad interim
injunction in Title Suit No.330 of 2019. The learned lower
appellate court initially passed an order of status quo on July
26, 2019 holding that the plaintiff had been able to prove
prima facie title and possession. Status quo with regard to
the nature, character and possession of the suit property was
directed to be maintained. Thereafter, the said misc. appeal
came up for final hearing and by the order impugned the
misc. appeal was disposed of, the ad interim order of
injunction was vacated. The learned lower appellate court
did not assign any reasons. The order impugned is quoted
below:
"24/09/2019
Today is fixed for hearing the misc.
appeal.
Both the parties file hazira.
Heard both sides in full and the case
record is taken up for passing order.
It's ordered that
The misc appeal being no 25/19 be and
the same is dismissed on contest
against the appellant/plaintiff.
The ad-interim order of injunction
passed earlier by this court vide its
order no 3, dated 26.07.19 stands
vacated.
The misc. appeal is thus disposed of.
Let a copy of this judgment along with
L.C.R. be sent to the ld. Court below at
once.
BC II to comply."
I have perused the orders passed by both the courts
below. It appears that the petitioner has purchased the suit
land by virtue of a registered deed of sale. The records of
rights are in the name of the petitioner. There is a
presumption of correctness of such record of rights. The said
pre-sumption is rebuttable by evidence. The record of rights
may not confer title but at least there is a presumption of
possession. Moreover, the court does not have to enter into a
mini trial while passing an order of injunction. On the
contrary, the court should try to keep the property as it is.
The order impugned before this Court contains no reason as
to why interim order should be vacated and the same is set
aside and quashed. The Misc. Appeal is against an order
refusing an-interim injunction and the main injunction
application is pending before the learned trial court. The
Misc. appeal is disposed of accordingly.
The learned trial judge is directed to hear out the
application for temporary injunction within two months
from the date of communication of this order. The written
objection to the said application for temporary injunction
shall be filed by the opposite parties within 10 days from
date. In the meantime, being satisfied with the prima facie
documents of title, possession, the balance of convenience
and inconvenience and irreparable loss and injury that will
be caused if the opposite parties start construction on the
said land and alienate the same, this Court is of the opinion
that the status quo be maintained by both the parties with
regard to the nature, character and possession of the
property in question till the disposal of the temporary
injunction application.
The observations made in this order are for the
purpose of disposal of the revisional application and on the
point of passing an ad interim order. But the learned court
below shall be free to decide the application for temporary
injunction on the facts, pleadings and documents before the
court, filed by the respective parties without being pursued
in any manner by observations made hereinabove.
CAN 1 of 2020 is disposed of.
(Shampa Sarkar, J.)
