SOUMEN SEN,J. - (1.) The instant revisional application is arising out of an order dated 28th July, 2011 passed by the Additional District Judge, 9th Court at Alipore directing the parties to maintain status quo till the disposal of the application under Order 39 Rules 1 and 2 for grant of temporary injunction.
(2.) The plaintiffs filed a suit being Title Suit No. 2117 of 2010 praying inter alia, for a declaration that the suit property described in schedule 'A' of the plaint is a KMC public road and the suit property described in schedule 'B' of the plaint is a common passage and for further declaration that the defendant nos. 1 to 4 had no right, title, interest whatsoever in respect of the suit property described in schedule 'A' and 'B' of the plaint or any part thereof and also for decree for permanent injunction restraining the opposite parties and their men, servants and agents from interfering with the possession of the plaintiffs. It was claimed that the common passage under the Dag No. 49 as described in schedule 'B' of the plaint belonged to one Sk. Azad Buksh, since deceased and in the year 1928 the said Sk. Azad Buksh and other co-owners had relinquished their claim over the common passage measuring about 492 sq. ft. as described in schedule 'B' of the plaint. The plaintiffs also alleged that the underground sewerage system of the plaintiffs' premises as well as that of the adjoining plot holders ran below the suit property along with the overhead electricity connection passing over the suit property comprising the public passage road. In short the plaintiffs has contended that this has been earmarked as a public road which the opposite party is seeking to encroach upon. Initially the plaintiffs did not get any ad interim order. Being aggrieved the plaintiffs preferred an appeal against the order of refusal dated 26th July, 2010. Initially by an order dated 5th August, 2010 the learned District Judge was pleased to grant interim order of injunction directing the parties to maintain status quo as regard nature and character and user of the suit property as described in schedule 'A' and 'B' and the said interim order was extended from time to time and ultimately merged with the impugned order dated 28th July, 2011. The opposite parties contended before the Court below that the said passage was never declared as a public thoroughfare by any Government Authority including KMC and that the relinquishment of the disputed land for the purpose to be utilised as public passage was not informed to the Government including KMC. There is no existence of any record which would show that this passage is treated to be a public road. By referring to a deed of conveyance dated 21st January, 1946 it was argued that there was no mention of any passage therein and the concerned land had been transferred many times without any transfer of passage and from the plan annexed to the partition deed it would show that the land was in existence prior to partition. It was further argued that the plaintiffs suppressed many important facts and material facts and on the equitable ground they did not approach the Court with clean hands and, therefore, the application should be rejected.
(3.) In reply to such contention, the plaintiffs have alleged that they have right of easement and by referring to Madan Mohon's case it was argued that where upon the construction of a conveyance, the plaintiffs were considered to have acquired not a right in the soil of a passage, but only a right of way over it, they were entitled to complain if their enjoyment of such pathway is being obstructed by the defendants. The petitioner has contended that the order of the appellate Court suffers from total mis-conception of law since he cannot claim right of easement moreover there cannot be any injunction against the true owner. It was further argued that a mere use of a piece of waster land as a passage does not give a presumption in law that the claim as user was a matter of right and accordingly, the appellate Court ought not to have relied on such observations which had been made either in Madan Mohon's case or in Madras case.;