- (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. " 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. The said appeal was dismissed by an order dated 10. 08. 2006 for default as process fee was not deposited. It was, however, restored to its original file. Immediately thereafter, however, the appellants allegedly put a padlock in flat No. 201 which was in occupation of the first respondent. On or about 14. 08. 2006, an application was filed by him before the 8th Civil judge (Senior Division) Alipore inter alia praying for: "9. Your petitioner states that the plaintiff by show of muscle and at the instance of musclemen in their side causing obstruction to use and enjoy the flat no. 201 of the 'b' schedule property to your petitioner. Your petitioner is a bachelor and aged about 72 years and has become totally perplexed as he has not been allowed to use and enjoy in his own property. Your petitioner further states that after construction by the promoter three flats and three car parking spaces allotted to the owners of three flats and as has been observed by the ld. Court but the plaintiffs carrying a fig to court's law and order causing obstruction, inconvenience to your petitioner to use and enjoy the flat no. 201 of the 'b' schedule property by putting padlock and keeping sundry household articles. "
(3.) BY an order dated 21. 09. 2006, a Division Bench of the Calcutta High court while disposing of FMA No. 988 of 2005 directed as under: "in such view of the matter, we dispose of this appeal and the application by holding that the parties to the suit shall be entitled to maintain their respective possession in the suit properties as on today without being entitled to make any change in the nature and character of the same. It is, however, made clear that if there be any pending application before the Trial Court by alleging that since after making of the impugned order by the trial court, a change has been made by some of the parties in respect of the respective possession by force and/ or illegality, then the trial court will be entitled to deal with the said application and to pass an appropriate orders irrespective of the above order of disposal of this appeal. " By an order dated 21. 11. 2006, the learned Civil Judge allowed the application dated 14. 08. 2006 holding: "from the order of the Hon'ble High Court it is palpably clear that full liberty has been given to the Trial Court to dispose of the application of the defendant no. 1 filed u/s 151 CPC in accordance with the law. It is already stated in my foregoing discussion that the materials on record go to show that defendant no. 1 is in possession of flat No. 201 of Schedule 'b' property while the plaintiffs are contending that they are in possession of the said flat. Considering the objection it is crystal clear that the defence version that the plaintiffs illegally put padlock and kept some sundry articles in the said flat is proved. Under the facts and circumstances I think that the plaintiff's should not be allowed to take the law in their own hands, and they are not supposed to make any obstruction to the defendant no. 1 in peaceful enjoyment of flat No. 201 of schedule 'b' property. Therefore, the plaintiffs are hereby directed to remove the padlock and sundry articles from flat no. 201 immediately and they are hereby restrained from making any further obstruction to the defendant no. 1 in peaceful enjoyment of the said flat. " ;