Samsi Regulated Market Committee ... vs Amar Chand Agarwala & Ors
2022 Latest Caselaw 8516 Cal

20.12.2022 SL No.182 Court No.8 (gc) FMAT 542 of 2014 CAN 1 of 2014 (Old No: CAN 5330 of 2014)

Samsi Regulated Market Committee & Ors.

Vs.

Amar Chand Agarwala & Ors.

This matter appeared in the Warning List of 29th

November, 2022 with a clear indication that this matter

shall be transferred to the Regular Bench on 5th

December, 2022. Since then the matter is appearing in

the list. The appellants have due notice of the matter.

The appellants are not represented.

The appeal is defective. The appeal was filed on

15th May, 2014. The Additional Stamp Reporter has

reported various defects in its reported dated 3rd June,

2014 but no attempt has been made to remove the

defects.

We could have dismissed the appeal for non-

removal of the defects. However, we propose to decide the

admission of the appeal on consideration of the materials

on record. The instant appeal is arising out of an order

passed by the Trial Court on 5th April, 2014 by which the

parties were directed to maintain status quo as regards

the possession, nature and character of the suit property

till the disposal of the suit. The said order was passed

after contested hearing. The plaintiffs filed a suit alleged

that the defendant Nos.1 to 3 have started constructing

their market complex by encroaching of their land. The

plaintiffs claimed that while they are in possession of their

land, a land acquisition case had started and 6 decimals

of land had been acquired by the State Government vide

LA Case No.6/56-57 and all the co-sharers started

possessing rest 31 decimals of land in R.S. Khatian No.33.

Thereafter, the plaintiff Nos.1 and 2 have purchased 18-

1/3 decimal of land from Phanibhusan, Muralidhar,

Bidhubhusan, Rakhal, Goyanath and Sarada vide

registered deed No.5221 dated 3rd July, 1967 and started

possessing the same in ejmali with other co-sharers. It

was during such possession, the State Government

acquired further 25 decimals of land for Samsi Regularted

Market Committee out of that 10.459 decimals of land

had been acquired from the purchased land of plaintiff

Nos.1 and 2 for which they had been duly compensated.

Subsequently, the plaintiff No.1 gifted 02 decimals of land

in favour of plaintiff Nos.3 to 5 on 12.02.2014 by a

registered deed. The plaintiff No.2 had also sold and

transferred 02 decimals of land in favour of the defendant

Nos.3 to 5 on 13.02.2014 by a registered deed of sale and

delivered possession to the said defendants. Another co-

sharer also had sold her share in favour of the

predecessor of the defendant Nos.4 to 15. It appears that

the defendant Nos.1 and 2 have only contested the suit

proceeding in their possession. The defendants have

contended that Rahu Mondal, another co-sharer of the

suit property has sold and transferred 3 decimals of land

in favour of the defendant No.1 on 06.04.2008 by a

registered deed with specific demarcation. The State had

acquired 25 decimals of land for Samsi Regulated Market

Committee and construction has commenced in their

specific portion of land, which they got by way of

acquisition and by way of purchase covered by boundary.

On consideration of the materials on record and the

pleadings, the Trial Court arrived at a prima facie finding

that the suit property is the ejmali property of the parties

and the parties are the co-sharers. It is settled-law that

every co-sharer has constructive possession over every

inch of joint property and nobody has any right to disturb

his peaceful possession. Though there is a dispute

regarding allocation of land of the parties and their

respective possession, but it would not be the proper

stage to decide the said issue and for that purpose

evidence would be required and such issue can only be

conveniently decided at the trial of the suit. It is settled-

law that at the stage of deciding the application for

temporary injunction, the Court is not required to hold a

mini trial. The Court is only require to consider prima

facie case, balance of convenience and inconvenience and

irreparable loss and injury in determining whether it

should exercise a discretion in favour of the plaintiff.

In our view, the Court in the facts and

circumstances of this case has correctly exercised its

discretion in favour of the plaintiffs as the failure to

exercise such discretion in favour of the plaintiffs, may

cause irreparable loss and injury to the plaintiffs. The

order of injunction was passed on 05.04.2014 and the

suit must have been disposed of by this time. Various

grounds raised challenging the said judgment, in our

view, are to be considered only at the trial of the suit. On

the basis of the pleadings and the documents on record,

as would be reflected from the judgment of the Trial

Court, we feel that the Trial Court was justified in

directing the parties to maintain status quo as regards

their possession, nature and character of the suit

property till the disposal of the suit.

In the unlikely event of the suit being pending, we

request the learned Civil Judge (Senior Division),

Chanchal, Malda to dispose of the Partition Suit No.36 of

2014 as expeditiously as possible and preferably within a

period of six months from the date of communication of

this order by the Registrar Administration (L&OM) without

granting any adjournment to either of the parties unless it

is unavoidable.

The Registrar Administration (L&OM) shall

communicate this order to the learned Trial Judge within

two weeks from date.

Accordingly, the appeal and the application stand

dismissed with the aforesaid direction.

However, there shall be no order as to costs.

(Uday Kumar, J.)                             (Soumen Sen, J.)