By Its Sebaits vs Sri Kanai Chandra Bera & Ors
2022 Latest Caselaw 2986 Cal

   48
 sandip
 Ct. 18
19.05.2022
                             S.A.T. No. 298 of 2019
                             I.A. No : CAN 1 of 2022

                Sri Sri Radha Gobinda Jew Thakur - represented
                 by its Sebaits, namely, Sri Badal Karak & Ors.
                                  Vs.
                    Sri Kanai Chandra Bera & Ors.

                Mr. Tanmoy Mukherjee,
                Mr. Amal Kumar Saha            ... For the appellants.

                Mr. Sukanta Das          ... For the respondent no. 1.

Re : I.A. No : CAN 1 of 2022

Mr. Tanmoy Mukherjee, learned advocate for the

appellants files affidavit-of-service, which is taken on

record.

Mr. Sukanta Das, learned advocate appearing on behalf

of the respondent no. 1, submits that he has filed

Vakalatnama on behalf of the respondent no. 1 under

Filing No. A - 8615 dated May 13, 2022. The department is

directed to tag the said Vakalatnama with the record.

The other respondents are not represented.

The plaintiffs are the appellants of the present second

appeal. This is an application for injunction by the

appellants.

The suit was decreed declaring the plaintiffs' right, title,

interest over the suit properties and the deed whereby the

defendants sought to set up their title over the suit

properties was also cancelled, a decree of permanent

injunction in respect of the suit schedule - 'A' property

followed the said decree of declaration.

The appeal Court below by the impugned judgment and

decree has reversed the said judgment and decree passed

by the learned Trial Judge.

The appellants by the present application are alleging

that taking advantage of the appellate decree the

defendants are now trying to change the nature and

character of the suit property and they are also trying to

create third party interest over the suit properties.

Mr. Mukherjee files a supplementary affidavit with some

photographs, which he claims to be the recent photographs

of the suit properties.

Mr. Das although disputed the identity of the suit

property in those photographs but in the absence of any

evidence to the contrary, the photographs have a prima

facie relevance. The said photographs demonstrate

activities of changing the nature and character of the

photographed properties.

At one stage of the proceeding, the interest of the

appellants was protected by decree of permanent

injunction, the legality and propriety of reversal thereof by

the Appeal Court below is under consideration in the

present Second Appeal, as such, at this stage, nature and

character of the suit property as well as creation of third

party interest therein cannot be allowed.

A prima facie case, therefore, has been made out for

grant of an ad interim order of injunction, as prayed for,

the other conditions for grant of such order of injunction

are also satisfied.

In consequence, the defendants/respondents are

restrained from changing the nature and character of the

suit schedule - 'A' property and they are also restrained

from alienating and/or encumbering the suit property in

any manner whatsoever for a period of eight weeks from

date.

The defendants/respondents are at liberty to affirm

affidavit-in-opposition to this application within two weeks

after the reopening of the Court following the summer

vacation of the Court; reply thereto, if any, be affirmed by

the appellants within one week from the date of receipt of

the copy of such affidavit-in-opposition.

The parties shall file their respective affidavits in Court

on the next date of hearing of this application.

List the application for hearing four weeks after the

summer vacation of the Court.

(Biswajit Basu, J.)