Prasenjit Mandal, J. - (1.) CHALLENGE is to the order dated December 17, 2009 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in Title Suit No.259 of 2007 thereby allowing an application under Section 151 of the Code of Civil Procedure filed by the defendant no.1. By the said order, the plaintiff was directed to restore the possession of the A schedule property to the defendant no.1.
(2.) THE plaintiff / petitioner herein instituted a suit being the Title Suit No.259 of 2007 for permanent injunction praying for a decree for restraining the defendant no.1 from dispossessing and / or disturbing the peaceful physical possession of the plaintiff in the A schedule property, as described in the schedule to the plaint. At the time of filing the suit, the petitioner prayed for temporary injunction. He also prayed for ad interim injunction which was refused by the learned Trial Judge. THEreafter, the petitioner preferred a misc. appeal being Misc. Appeal No.88 of 2007 and the lower appellate Court granted an ad interim order of injunction by granting status quo on December 24, 2007. Ultimately, the said order of injunction was vacated at the time of disposal of the said misc. appeal. As per plaint, the defendant no.1/opposite party herein is in possession of the B schedule property comprising two rooms on the ground floor of the suit premises. The defendant contended that on taking opportunity of his absence from his tenanted premises, the plaintiff wrongfully dispossessed him from A schedule property which was also in his possession. So, he filed an application under Section 151 of the C.P.C. which was allowed by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going into the materials on record, I find that the dispute between the parties is as to who is in possession of the A schedule property. As stated earlier, the plaintiff has filed the suit for permanent injunction against the defendant/opposite party no.1 herein and the landlord/opposite party no.2 herein with regard to A schedule property. The petitioner filed the said suit being Title Suit No.259 of 2007 as if he were in possession of the suit property. Admittedly, the defendant is also a tenant with regard to the B schedule property under the opposite party no.2. As regards possession, both the plaintiff and the defendant no.1 have raised contradictory claims. In such a situation, the landlord is, prima facie, the best person to say as to who is the tenant in respect of the A schedule property. In the instant suit, the landlord filed a written statement as appearing at page no.43 A thereby admitting that the plaitniff is in possession of A schedule property and the defendant/opposite party no.1 is in possession of two rooms on the first floor of the said premises and he has clearly stated that the defendant no.1 has been trying to dispossess the plaintiff from his lawful possession and that he has no right, title and interest over the property in suit, that is, A schedule property.
(3.) IT may be noted herein that the landlord filed a title suit being Title Suit No.98 of 2005 for declaration, recovery of possession and permanent injunction against the defendant no.1 contending, inter alia, that the defendant no.1 has been possessing the rooms of the ground floor of the suit premises as trespasser. Admittedly, there are five rooms at the ground floor of the premises at 6, Yogipara Bye-lane, Kolkata 700 006. In the suit being Title Suit No.98 of 2005 particularly in paragraph no.8, the landlord has clearly stated that the defendant no.1 possesses one room on the ground floor, one Satyendra Nath Gan possesses two rooms and one Purnendu Bhusan Lahiri also possesses two rooms on the ground floor. He has described in the plaint that the father of the plaintiff of the instant suit, namely, Charan Roy possesses three rooms with privy and that common bath and privy and water facilities are available in the ground floor. He has not stated that the plaintiff of the instant suit is in possession of three rooms on the ground floor of the premises in his suit at all.;