Calcutta High Court (Appellete Side)
Jharna Mukherjee & Ors vs Shyamapada Miatur & Ors on 16 March, 2021
16.03.2021
srm
C.O. No. 524 of 2021
Sri Sri Debottar Bhubaneswar Shibthakur Jew rept. by
Jharna Mukherjee & Ors.
Vs.
Shyamapada Miatur & Ors.
Mr. Partha Pratim Roy,
Mr. Dyutiman Banerjee
...for the Petitioners.
Mr. Bhaskar Ghose,
Mr. Siddhartha Paul
...for the Opposite Parties.
This revisional application has been filed challenging an
order dated January 30, 2021 passed by the learned Civil Judge
(Senior Division), Arambagh, District-Hooghly in Title Appeal
No.16 of 2020. The title appeal arises out of a judgment and
decree dated September 5, 2020 passed by the learned Civil
Judge (Junior Division), 1st Court, Arambagh, District-Hooghly
in Title Suit No.67 of 2014.
The petitioners are aggrieved by the rejection of their
application for temporary injunction filed under Order 39
Rules 1 and 2 of the Code of Civil Procedure in the title appeal.
It is contended by Mr. Roy, learned Advocate appearing
on behalf of the petitioners/appellants, that while deciding the
prima facie case, the learned lower appellate Court had actually
held a mini trial and nothing further remained to be decided in
the appeal. He next submits that not only the prima facie case
but the Court also should have arrived at a decision as to
whether irreparable loss and injury would be caused to the
debuttar property, specially when the specific case of the
plaintiffs was that the defendants/opposite parties, who were
outsiders, were disturbing the daily seba puja of the deity on
the strength of the record of rights, which would not confer
title but at best could have a presumptive value.
Mr. Ghose, learned Senior Advocate appearing on
behalf of the opposite parties, submits that the title suit was
decided on merits and the petitioners failed to prove that there
was any seba puja conducted. He further submits that even at
the stage of ad interim injunction the petitioners were
unsuccessful. Thus, according to Mr. Ghose, nothing remained
to be decided in the application for temporary injunction and
the learned lower appellate Court should hear out the title
appeal on its own merits.
I have considered the order impugned and the rival
contentions of the parties.
The learned lower appellate Court upon considering the
prima facie case denied the prayer of the petitioners for
restraining the opposite parties from disturbing the enjoyment
of the petitioners in respect of the debuttar property on the
ground that the petitioners had failed to establish prima facie
that the property was an absolute debuttar and further the
learned lower appellate Court was not prima facie satisfied that
there was any threat of immediate alienation and damage to
the property.
I find that the reasons assigned by the lower appellate
Court for rejection of the temporary injunction is sufficient.
There is no scope for interference with the order impugned. It
appears that the hearing of the title appeal has fixed on March
25, 2021.
Under such circumstances, this revisional application is
disposed of with a direction upon the learned lower appellate
Cout to dispose of the title appeal within a month from the
next date fixed.
It is made clear that observations made in the order
impugned while dealing with the application for temporary
injunction, by the learned lower appellate Court are all
tentative and the learned lower appellate Court will hear the
title appeal on its own merits, on the pleadings and evidence.
The revisional application is disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied
for, be given to the parties on priority basis.
(Shampa Sarkar, J.)
