Joytosh Banerjee, J. - (1.) This appeal is directed against the judgement dated 9.5.1988 passed by a single judge of this Court, whereby the Court directed the defendants/appellant by an order of Mandatory Injunction to close-down the holes and also to remove all obstacles, if any, and to restore back rooms of the ground floor to the petitioners (mentioned as Bhattacharjees) within a week from the date of order, which work will be done under the supervision of the Special Officer, Shri Anjan Chatterjee, Advocate.
(2.) Briefly stated, the facts and circumstances leading to the present hearing of the matter, are as follows:- An application was made by Bhattacharjees, in the matter No. 64 of 1950, praying for, inter alia, for an appointment of a Special Officer ........... by the respondents Nos. 1 to 4 in premises No. 22/1D, Manahan Pukur Road, Calcutta and to restore original position by reconstructing the portion of premises No. 22/1 D, Manahar Pukur Road, Calcutta, demolished by and/or at the instance of respondents Nos. 1 to 4 and and also for injunction restraining the respondents Nos. 1 to 4 from proceeding in any manner whatsoever to interfere and/or disturb the possession and enjoyment of Bhattacharjees in respect of premises No. 22/1D, Manahar Pukkur Road,Calcutta 29 till the disposal of suits being title Suit Nos. 107 and 108 of 1981, T.S No. 236 of 1982 and T.S. No. 537 of 1985, pending before Alipore Courts. Appellants, purchased the premises No. 22/1C, manahar Pukur Road, Calcutta from Ballygunge Estate Private Limited in course of a liquidation proceeding pursuant to a Court sale dated 2.5.1974 and the sale deed in question was executed on 16.8.1974. It is not disputed that prior to such purchase, the appehants had been in possession of such property for a long time as a tenant. The respondents are the owners of premises No. 22/1D, Manahan Pukur Road; which they had purchased also from Ballygunge Estate Private Ltd., as back as on 13th January, 1953. The appellants filed an application before the liquidator on 23.8.1977 seeking leave of the company Judge democration of the property. An order to that effect was passed directing Ballygunge Estate Private Ltd., to demarcate the purchased property of the appellants as per deed of conveyance. The respondents then filed the injunction petition as mentioned above on the ground that on the garb of demarcation the appellants were tring to encroach upon the portion of the property which the respondents had purchased and have been possessing uninterrupted since 1953. Learned trial Judge, on consideration of matterials on record including evidence adduced by the parties in support of their respective claim, the orders passed by the Judges in civil suits between parties and also on consideration of the report of Surveyor Special Officer, appointed by this Court, came to the ultimate conclusion that the appellants had made two holes on the wall in order to have access to the portion in occupation of the respondents and the appellants had raised a wall and dispossessed the respondents from a portion in respect of which there was already an order of injunction in Alipore Court. On such findings the learned Single Judge passed the order as noted above. In such order, it was indicated that Mandatory Injunction to close down the holes and to remove, all gastaclers and to restore back possession to the respondents was to be done under the supervision of Shri Anjan, Chakroborty, Special Officer. Against such order the appellants tied the present appeal In the appeal the Division Bench of this Court dismissed the appeal and directed Shri Anjan Chakroborty, the Special Officer appointed by the learned Single Judge to hand over possession of the property to Bhattacharjees. Against such order appellants moved the Apex Court, by taking leave of such Court, in civil appeal No. 9494 of 1996.
(3.) The Hon'ble Court, in the judgment dated 25.7.1996 noted that the Division Bench during pendency of appeal No. 340 of 1988 appointed Shri Surid Roy Chowdhury as the Special Officer and directed the said Special Officer to take possession of the disputed rooms and to allow the parties to occupy such rooms subject to the undertaking of such parties that they would not claim equity to occupy the disputed rooms until further orders. The Special Officer was also directed to appoint a Surveyor who would demarcate plot No.3 belonging to the appellants and plot No. 4 belonging to the respondents on the basis of conveyance original plans original documents scheme, and other papers. Both parties were directed to make over conveyance and other documents on which they rely. The Special Officer was directed complete the demacration within a specified time Pursuant to the aforesaid order Special Officer Shri Roychowdhury appointed one Surveyor and submitted his report on 20.4.1992.The Division Bench by an order dated 1.7.1992 granted leave to the respondents, to file an application taking exception to the report of the Special Officer within a specified time. The respondents filed their objection. It further transpires, when the matter was called on 1st of September, 1992 none appeared for the objector and therefore objection against the report of the Special Officer was rejected, before the matter was listed for hearing. The Division Bench by an order dismissed the appeal and directed the Special Officer Shri Anjan Chakroborty who had been appointed by the learned Single Judge to hand over possession of the property to Bhattacharjees the respondents in the appeal. The Hon'ble Apex Court after hearing the learned Counsel for the parties and after going through the record of the case found that the order passed by the Division Bench in the appeal could not be sustained on the sole ground of non-consideration of the relevant material in view of the fact that Shri Surid Kumar Roychowdhury was appointed as a Special Officer by the Division Bench (during the pendency of the appeal) and he was directed that he should demarcate the two plots, that is to say Plot No. 3 belonging to the appellants and Plot No. 4 belonging to the respondents by taking assistance of a Surveyor. The Apex Court further found that, pursuant to such direction the Special Officer had submitted his report on 28th of April, 1992 and the respondents filed objection against such report which stood dismissed on lst of September, 1992. Therefore, the reporrof the Special Officer as well as the survey done by the Surveyor constituted an important item of evidence which could not have been ignored by the Division Bench while disposing of the appeal. Especially when the appointment of Surid Kumar Roychowdhury as the Special Officer had not been reversed by the subsequent Bench and therefore it followed that any direction could only be given to the Special Officer, appointed by the Division Bench. In the result the Hon'ble Court found that non-consideration, of the report filed by the Special Officer Shri Surid Kumar Roychowdhury vitiated the ultimate conclusion and therefore the judgment of the Division Bench dated 25th of September, 1995 was set aside and the appeal was sent back on remand with a direction to dispose of the same in accordance with the law after considering the report of the Special Officer Shri Surid Kumar Roychowdhury as well as the report of Shri Bhupendra Mohan Saha, Surveyor, if any.;