Sumita Pahari & Ors vs Umapada Pahari & Ors
2022 Latest Caselaw 120 Cal

18.01.2022
ITEM NO. 4
Ct. No.4
Saswata
                                   F.A.T. 230 of 2021
                                          with
                                  IA No. Can 1 of 2021
                                 (Via video conference)
                                  Sumita Pahari & Ors.
                                          -vs-
                                 Umapada Pahari & Ors.


             Mr. R. N. Mahata
                            ... for the appellants

             Mr. Ganesh Shrivastava
             Mr. Sukanta Das
                           ... for the respondent nos. 1 & 2

In re : IA No. Can 1 of 2021

This is an application for injunction at the behest of

unsuccessful plaintiffs who have filed the instant appeal

challenging the judgment and decree dated 4th August

2021 passed by the learned Civil Judge (Senior Division),

1st Court, Paschim Medinipur in Title Suit No. 141 of 2012.

The suit for declaration that the deed of gift purportedly

executed by the predecessor of the present plaintiff in

favour of defendant no. 1 is an outcome of undue influence

and partition of the undivided properties. The suit came to

be dismissed on the ground that the other co-sharers of

some of the plots have not been made party. Furthermore,

the Trial Court found that the plaintiffs have not been able

to prove that the deed of gift is invalid. In the instant

application, it is alleged that taking advantage of the

dismissal of the suit, the respondent nos. 1 to 4 are

contemplating to deal with the property in favour of the

strangers and if they become successful, it would invite

cumbersome situation and complicate the issues by

bringing the outsiders.

It appears from the record that the order of status quo

with regard to possession, nature and character of the suit

property, except the property described in schedule 'B' and

'D' to the plaint was passed and ultimately the said interim

order was modified by the Division Bench of this Court in

FMA 2464 of 2013 to the extent that there shall be an

order of status quo as on date i.e., 13th March 2014 in

respect of the suit property with regard to the ownership,

possession and character. The said order was operative till

the dismissal of the suit.

It would be prudent that the order which continued

for a long time and remained operative till the suit was

alive is not extended when the appeal is filed against the

judgment and decree and the same being the continuation

of the lis.

Furthermore, the suit was dismissed on the non

impleadment of the necessary party. Though certain

findings were also made on the deed of gift which was

challenged therein, but we feel that the property must be

protected till the disposal of the instant appeal.

Accordingly, respondent nos. 1 to 4 as well as the

plaintiffs are directed to maintain status quo with regard to

ownership, nature and the possession of the suit properties

for a period of 8 weeks from date or until further orders,

whichever is earlier.

The appellants are directed to serve a copy of this

application upon respondent nos. 3 to 6 by speed post and

shall file affidavit of service on the returnable date.

The application is made returnable after 3 weeks.

In re : F.A.T. 230 of 2021

The appellants are directed to put in talabana,

requisites and written up notice forms for effecting service

of notice of appeal upon respondent nos. 3 to 6 within a

week from date.

Since respondent nos. 1 and 2 has entered

appearance by lodging caveat, office is directed to include

the vokalatnama, annexed with the caveat to have been

filed in the instant appeal and shall treat the appeal ready

as regards service so far as the aforesaid respondents are

concerned. Apart from the same, Mr. De, learned advocate

appearing for the respondent nos. 1 and 2, waives the

service of notice of appeal upon his clients.

Let Lower Court's Record be called for through special

messenger at the cost of the appellants. Such cost shall be

put within a week from date. Upon deposit of special

messenger cost and after the arrival of Lower Court's

Record, office shall examine the same and if found

complete, shall put a note in the file and thereafter shall

serve the notice under Chapter IX Rule 12 of the Appellate

Side Rules upon the Advocate-on-Record of the appellants.

The appellants shall prepare eight copies of informal

paper books - printed, typewritten or cyclostyled, as the

case may be within a period of 6 weeks from date of service

of notice of arrival of Lower Court's Records and shall

include all the documents which form part of the record

and reflected in the judgment impuged in the instant

appeal.

All other formalities including the filing of Appellants'

declaration are dispensed with.

After the service having effected on the respondents

and upon filing of paper books, liberty to granted to the

parties to prayer for early listing of the matter.

Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis.

(Harish Tandon, J.)

(Rabindranath Samanta, J.)