Krishna Basu & Anr vs Dipali Chakraborty & Ors
2022 Latest Caselaw 4190 Cal

13.07.2022
Item No. 03
 Court No.32
 Avijit Mitra

                                 MAT 395 of 2019
                                        with
                IA No. CAN 1 of 2019 (Old No.CAN 5838 of 2019)

                                    Krishna Basu & anr.
                                          Versus
                                 Dipali Chakraborty & ors.


                         Mr. P.K. Bhattacharya
                                          ...for the appellants
                         Mr. Santanu Kr. Mitra
                                          ....for the State
                         Mr. Khairul Alam
                                          ....for the respondent no.1

The present appeal has been preferred against an

order dated 6th February, 2019 passed in a writ petition

being WP No.837 (W) of 2019.

Mr. Bhattacharya, learned advocate appearing for

the appellants submits that the writ petition filed by the

respondent no.1 ought not to have entertained by the

learned Single Judge since the dispute amongst the

parties is civil in nature. Such private dispute between

the parties could not have been made the subject matter

of a proceeding under Article 226 of the Constitution of

India.

He argues that the respondent no.1 had

suppressed material facts. A judgment dated 31 st July,

2017 delivered in a title suit being Title Suit No.203 of

2011 between the appellants and the private respondent

no.1 and others, was not brought to the notice of the

Court. By the said judgment the counter claim of the

respondent no. 1 was refused. Let the said judgment, as

produced, be kept on record.

Per contra, Mr. Alam, learned advocate appearing

for the respondent no.1 submits that there was a

partition suit amongst the heirs of late Utpalakshya Basu

and late Nalilakshya Basu being Title Suit No.15 of 2001.

The appellants are the heirs of late Utpalakshya Basu.

Pursuant to the order passed in the same, the learned

Commissioner demarcated the property specifying the

respective portions of the co-sharers and thereafter the

suit was finally decreed on 11th February, 2005 and the

co-sharers took possession of their respective portions

with the assistance of police authorities on 29 th October,

2006. Subsequent thereto, the respondent no.1

purchased the demarcated portion of the property of the

plaintiff no.1 and that of the defendant no.2, inclusive of

a passage of 3 feet 6 inches, by a deed dated 15 th July,

2011 executed by the legal heirs of the plaintiff no.1 and

the defendant no.2. The sketch map annexed to the deed

would tally with the sketch map annexed to the learned

Commissioner's report. Thereafter, the appellants herein

were preventing the respondent no.1 from using the said

passage of 3 feet 6 inches. Complaint to that effect was

lodged before the police authorities but no steps were

taken and as such, the respondent no.1 was constrained

to prefer the writ petition.

Mr. Mitra, learned advocate appearing for the State

submits that steps have been taken by the police

authorities towards maintenance of peace and tranquility

at the locale and that the respondent no. 1 had already

removed the padlock on 9th June, 2019 at her costs and

in presence of the police authorities. Let the report of the

respondent no.4, as produced, be kept on record.

Heard the learned advocates appearing for the

respective parties and considered the materials on record

including the report of the learned Commissioner and the

final decree passed in Title Suit No.15 of 2001 as well as

the sketch map, as annexed to the deed by which the

respondent no.1 purchased the property. It appears from

the judgment delivered in Title Suit No.203 of 2011 that

the suit was dismissed and the counter claim of the

respondent no. 1 for perpetual injunction was refused

due to lack of specific averments. Such observation does

not affect the right to the property earned by the

respondent no.1 on the basis of the deed dated 15 th July,

2011 executed after partition.

The learned Commissioner demarcated the property

specifying the respective portions of the co-sharers and

the suit was finally decreed on 11th February, 2005. The

co-sharers took possession of their respective portions.

Thereafter the respondent no.1 purchased the property by

the deed dated 15th July, 2011. The dispute amongst the

co-sharers had been finally decided by the competent

Civil Court and the police authorities are under an

obligation to comply with the judgment delivered by the

competent civil forum.

In the said conspectus, the learned Single Judge

passed the order dated 6th February, 2019 granting liberty

to the respondent no.1 to remove the padlock at the

common passage at her own costs with an observation

that the police authorities shall ensure that there is no

breach of peace at the locale.

We do not find any infirmity in the order impugned

warranting interference in the present appeal.

The appeal and the connected application are,

accordingly, dismissed.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if applied

for, be given to the learned advocates for the parties.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)