Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the judgment dated January 15, 2011 passed by the learned Additional District Judge, Second Court, Alipore in Misc. Appeal No.495 of 2010 thereby dismissing the said misc. appeal arising out of the Title Suit No.2517 of 2010 filed by the plaintiff before the learned Civil Judge (Junior Division), 1st Court, Alipore.
(2.) THE short fact necessary for the purpose of disposal of this application is that the plaintiff / petitioner herein filed a suit being Title Suit No.2517 of 2010 before the learned Civil Judge (Junior Division), 1st Court, Alipore for declaration, injunction and other reliefs. THE plaintiff filed an application for temporary injunction and prayed for ad interim order of injunction. THE learned Trial Judge rejected the prayer for ad interim injunction at the initial stage and issued a show-cause notice upon the opposite party. Being aggrieved, the plaintiff preferred the misc. appeal being Misc. Appeal No.495 of 2010 and that misc. appeal was dismissed on contest 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 through the materials on record, I find that admittedly, the plaintiff became the owner of the land in suit measuring 35 cottahs 3 chhitaks and 15 square feet along with various sheds and structures standing thereon at premises no.187, Netaji Subhas Chandra Bose Road, P.S. Jadavpur by purchase. Admittedly, an agreement was held between the parties (i.e. between the owner and the developer) on July 28, 1996 for construction of a multistoried building on the said land in suit and the defendant was entrusted to make construction of the building accordingly. Admittedly, the defendant invested huge money at the time of purchase of the property by the plaintiff, eviction of the tenants and unauthorised occupants therefrom and also at the subsequent stage for the making construction etc. Amongst other clauses, there were terms to the effect that upon construction, the plaintiff would get 30 per cent of the construction and the defendant would be at liberty to dispose of 70 per cent of the construction.
(3.) ULTIMATELY, it was settled that the plaintiff would get 7 flats and 7 garages out of the property constructed by the defendant and till the allocation in favour of the plaintiff is not made, the developer would hold the same as trustee of the plaintiff and that it would not part with, alienate, encumber or in any way deal with or dispose of the same. Another term is to the effect that the developer is entitled to adjust the sum, out of its allocation in the new building, at the agreed rate of Rs.600/- per square foot of the super built area although, the sale of the flat was being made to the others at the rate of more than Rs.3,000/- per square foot. When the dispute cropped up between the parties, this Bench, in exercising of its revisional jurisdiction against the interim order, has observed that as per terms of contract between the parties, the Lower Appellate Court is quite justified in passing the order of status quo. This Bench has also observed that as per times of settlement between the parties, until the developer delivers the possession of seven flats and seven garages to the plaintiff, the developer shall possess the building as a trustee of the owner. Till such period, the developer will not be able to execute and register any deed in favour of the intending purchasers. Thereafter, the learned Lower Appellate Court has dismissed the said misc. appeal on contest holding that the plaintiff / petitioner herein could not make out a prima facie case in support of the prayer for an order of ad interim injunction and that the learned Trial Judge did not err in refusing the said prayer for ad interim injunction. Accordingly, she has dismissed the misc. case.;