Prasenjit Mandal, J.@mdashChallenge is to the Order dated February 10, 2012 passed by the learned Additional District Judge, 12th Court, Alipore in Misc. Appeal No. 84 of 2010 thereby affirming the order No. 2 dated February 16, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Title Suit No. 455 of 2010. The plaintiff/petitioner herein instituted a suit being the Title Suit No. 455 of 2010 against the opposite parties for a decree of declaration that the defendants/opposite parties herein could not make any construction in the suit premises and/or could not take forcible possession of the same without effecting partition of the same by metes and bounds and also for a decree of permanent injunction restraining the defendants/opposite parties herein from obstructing the common passage running through the suit premises in any manner whatsoever. In that suit, he filed an application for temporary injunction praying for an order restraining the defendants, their men and/or agents from obstructing the common passage running through the suit premises and for making any construction on the suit property and on taking forcible possession of the same till disposal of the suit.
2. The plaintiff also prayed for ad interim injunction. The learned Trial Judge by Order No. 2 dated February 16, 2010, rejected the prayer for ad interim injunction, but issued show-cause notice upon the defendants/opposite parties herein. The learned Trial Judge had also found that there was no urgency in granting an ad interim order. Being aggrieved by such order No. 2 dated February 16, 2010 of the learned Trial Judge, the plaintiff preferred a Misc. Appeal being Misc. Appeal No. 84 of 2010 and that Misc. appeal was also dismissed thereby affirming the Order No. 2 dated February 16, 2010. Being aggrieved, the plaintiff has filed this application.
3. Now, the question is whether the impugned order should be sustained.
4. Upon hearing the learned Advocates for the parties and on going through the materials-on-record, I find that suit property is a piece of land measuring 3 cottahs, 3 chittaks and 12 sq. ft. Bastu land together with structures thereon at 15, Meher Ali Mondal Street, Kolkata-700027 under Police Station - Ekbalpur, Ward No. 78 of the Kolkata Municipal Corporation. There were several transfers among the co-owners of the property in suit and ultimately, the plaintiff and the defendants became the co-owners of the suit property by such transfers and then on succession.
5. As per materials-on-record, there is a common passage of 3 feet wide starting from Meher Ali Mondal Street and this common passage is meant for the ingress and egress of the parties to the suit. The plaintiff has contended that the defendants/opposite parties herein tried to erect one gate on the common passage of the suit property and as such, the plaintiff had to initiate with a proceeding u/s 144(2) of the Cr.P.C. He got an order in his favour but after expiry of the force of the said order in that proceeding, the defendants/respondents tried again to make an illegal construction on the common passage and as such, the petitioner was compelled to institute the said suit against the defendants.
6. The defendants have denied such allegations totally and it is their specific case that the plaintiff does not reside at the suit property, he has no possession over the same and in fact, the plaintiff resides at T/6C, Bindu Basini Street and he has no connection with the suit property at all.
7. Anyway, the defendants have claimed that since they are also co-owners of the suit property by virtue of a registered Sale Deed, they have also right to repair the boundary wall, gate and other construction of the suit property for their safety, security, privacy, etc. These matters may be the consideration at the time of trial of the suit. At present, I am concerned whether the Courts below were justified in rejecting the prayer for ad interim injunction.
8. While dealing with the matter, the learned Trial Judge has recorded that on the basis of the materials, facts and circumstances, there is no urgency in granting an ad interim order of injunction.
9. While dealing with the same matter, the Lower Appellate Court has also opined that since the plaintiff has failed to show successive deeds of transfer, the plaintiff''s title to the suit property has not been, prima facie, proved. The Lower Appellate Court has also held that the impugned order passed by the learned Trial Judge does not suffer from any material illegality and requires no interference. Thus, the instant appeal failed and so, interim order passed in the instant appeal was vacated. Parties were given opportunities to project their respective cases afresh before the learned Trial Judge for final disposal of the petition for temporary injunction.
10. Thus, I find that the learned Lower Appellate Court has discussed the matters in details in support of his conclusion and thus, he has observed that no interim order as prayed for by the petitioner should be granted.
11. Thus, I find that both the Courts below have come to the concurrent findings based on the materials. The learned Trial Judge has clearly observed that the plaintiff has failed to show urgency in passing interim order of injunction as prayed for. From the materials-on-record as available before this Court, I endorse the same view. Accordingly, I am of the view that the concurrent findings should not be interfered with. The learned Trial Jude has given the specific direction for disposal of the application for temporary injunction and parties are at liberty to place the respective cases at the time of hearing of the application for temporary injunction.
12. In that view of the matter, I am of the view that the concurrent findings of the Courts below do not suffer from perversity at all and so, there is no scope of interference. The application is, therefore, dismissed.
13. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
