Prasenjit Mandal, J. - (1.) THIS application is directed against the order dated January 9, 2008 passed by the learned Additional District Judge, Fast Track Court-III, Sealdah in Misc. Appeal No.11 of 2005 thereby modifying the order of temporary injunction passed by the learned Trial Judge in Title Suit No.214 of 2004. The short case is that the plaintiffs / petitioners herein instituted a suit being Title Suit No.214 of 2004 for declaration, permanent injunction and other reliefs against the opposite parties before the learned Civil Judge (Junior Division), 2nd Court, Sealdah. In that suit, the petitioners filed an application for temporary injunction restraining the opposite parties from transferring, alienating and/or disposing of the suit property and from obstructing their free ingress to and egress from the suit property till the disposal of the aforesaid suit. The opposite parties are contesting the said suit. The learned Trial Judge granted the prayer for temporary injunction as prayed for. Being aggrieved by the said order of temporary injunction, the defendant / opposite party no.1 filed an appeal and the said appeal being Misc. Appeal No.11 of 2005 was allowed in part modifying the reliefs granted by the learned Trial Judge. Being aggrieved, this application has been preferred.
(2.) NOW, the question is whether the impugned order should be sustained. Upon hearing the learned advocates of both the sides and on perusal of the materials on record, I find that the plaintiffs prayed for declaration that Late Syed Abdul Haque had half share in the suit property. Being joint tenants, plaintiffs and the other proforma defendants and the defendants also are the joint tenants in respect of the suit shop room at 1/A, Convent Road, under P.S. Entally, Kolkata-700014 under the defendant no.8 and that they cannot be evicted from the suit property otherwise in due process of law, permanent injunction restraining the defendants from transferring or assigning the suit property to any third person and from causing any obstruction to the plaintiffs in the free ingress to and egress from the suit property and from carrying on business peacefully and other reliefs. They prayed for temporary injunction restraining the defendants from transferring, assigning, selling out the suit property to any third person and also restraining the defendants further from causing any obstruction in the free ingress to and egress from the suit property in any manner till the disposal of the suit. Thus, I find that the reliefs sought for in the suit and also in the application for temporary injunction are almost the same and by the order dated August 2, 2005, the learned Trial Judge granted the temporary injunction as prayed for in the application. Being aggrieved, the defendant / appellant preferred the said misc. appeal and by the impugned order dated January 9, 2008, the First Appellate Court restrained the defendants from transferring, assigning or selling out the suit property to any third party till the disposal of the suit. But the First Appellate Court set aside the order relating to restraint from causing any obstruction in free ingress to and egress from the suit premises as well as the suit shop room and from causing any obstruction in the peaceful running of the said business in the suit property till the disposal of the suit. In order to succeed in the application for temporary injunction, the plaintiffs are required to prove the prima facie case to go for trial. Admittedly, the suit property is at 1/A, Convent Road under P.S. Entally, Kolkata-700014 is a shop room and a business in the name and style Moulali Toy Shop is being run in the said shop room. The question is who is the owner of that business. Admittedly, the said shop room was in the name of the joint tenants, namely, Syed Abdul Haque and Syed Abdul Subhan, two brothers. The rent receipts were granted in the name of the two joint tenants previously. The plaintiffs have contended that they are in joint possession with the defendants in respect of that business.
(3.) ON the other hand, the defendants contended that there were two shop rooms, one was being possessed by Syed Abdul Haque at 35/1, A.J.C. Bose Road. It may be noted that the plaintiffs are the heirs of Syed Abdul Haque and the business at 35/1, A.J.C. Bose Road is being run by the plaintiffs, that is, heirs of Syed Abdul Haque and the business at 1/A, Convent Road is being run by Syed Abdul Subhan and after his death, defendants are running the said business exclusively. The defendants are the heirs of Syed Abdul Subhan. Admittedly, Syed Abdul Haque died in 2001 and Abdul Subhan died in 2004 and the dispute between the parties cropped up in 2004, that is, after death of Abdul Subhan. The plaintiffs have not been able to file any scrap of paper or any convincing document in support of their claim that they possess the business at 1/A, Convent Road jointly with the defendants. Their paper with regard to such claim is only the paper of the M.P. case under Section 144 of the Cr.P.C. and the present plaint supported by affidavit. On the other hand, it is the specific assertion of the defendants that as per mutual arrangement, Syed Abdul Haque was possessing the business at 35/1, A.J.C. Bose Road and Abdul Subhan was possessing the business at 1/A, Convent Road exclusively. The plaintiffs have not filed any paper that the share of the profits of the business or the rent of the premises at 1/A, Convent Road was shared by them. Therefore, it is difficult to conclude whether the plaintiffs have been able to show the prima facie case to go for trial. However, if the order relating to restraining from transferring, assigning or selling out the suit property to any third party by the defendants till disposal of the suit is not maintained and if the defendants are able to dispose of the same, the plaintiffs will be in great difficulty to recover possession if they succeed ultimately in the suit. Therefore, the balance of convenience in granting injunction restraining the defendants from transferring the suit property to any third party lies in favour of the plaintiffs and if it is not granted, they are likely to suffer irreparable loss. So, I am of view that so far as this part of the injunction order as passed by the both the courts below, should be affirmed. So far as the other portion relating to setting aside the restraint order against the defendants from causing any obstruction in free ingress to and egress from the suit premises as well as the shop room and from causing any obstruction of peaceful running of the business in the said suit as observed above, the plaintiffs having failed to produce any convincing paper in support of their claim, I am of the view that the learned First Appellate Court has rightly observed that the defendants, prima facie, are in possession of the said shop room and if they are restrained from enjoying that shop room, their income from the said shop room will be stopped. So, if the rightful possession as per terms of oral agreement between them, as claimed by the defendants are restrained, it will cause injustice to them. So, if the second part of the restraint order as passed by the learned Trial Judge is maintained, the balance of convenience will not be in favour of the defendants at all and it will cause extreme hardship to them. If this portion of the order of injunction is maintained, the plaintiffs will be benefited but at the cost of the rightful possessor of the suit premises and the business. So, the grant of injunction in favour of the plaintiffs in this respect will not be proper. They may suffer the irreparable loss.;