- (1.) Leave granted.
(2.) The parties hereto are co-sharers. A suit was filed for partition. Admittedly they had entered into a development agreement. The properties which were in possession of the owners were described in Schedule A of the plaint; whereas the properties which were subject matter of the development agreement were described in Scheduled B thereof in the plaint filed by the appellant in the Court of 8th Civil Judge (Sr. Division), Alipore registered Title Suit No. 9 of 2004. In terms of the development agreement, three flats and parking spaces for three cars had been allotted to the parties. An application for grant of injunction in respect of Schedule A property restraining the respondents from handing over the owners the allotted flats and from selling out any flats in the premises in question, was filed in the suit on or about 14.03.2004 wherein it was inter alia averred: "That at present the plaintiffs and the defendant no. 1 to 6 are occupying 3 flats and 3 garages at premises no. 46A, Purna Chandra Mitra Lake, Kolkata - 700033, which are also undivided property." It was furthermore averred: "That at present the plaintiffs have 93/240, undivided share, the legal heirs of late Pinaki Prosad Basu (the defendant No. 2 to 6) have 54/240, undivided share and the defendant no. 6 have 93/240, undivided share of the schedule 'A' and 'B' properties. Although by amicable agreements the parties are in possession of separate flats of schedule 'B' hereunder, there has not been any demarcated possession according to the respective share of the parties."
(3.) However, yet again on 11.04.2005, the plaintiffs filed an application for grant of injunction in respect of the schedule B property seeking to restrain the respondents from transferring or letting out any portion of the land to any third party. An order of injunction was issued on the said application dated 05.03.2004 but the same was refused in respect of the application dated 11.04.2005 by an order dated 16.07.2005. An appeal was preferred thereagainst which was marked as F.M.A. No. 988 of 2005. ;