PRASENJIT MANDAL,J. - (1.) 1. This application is at the instance of the plaintiffs/appellants and is directed against the Order dated December 20, 2010 passed by the learned Civil Judge (Senior Division), 1st Court, Howrah in Misc. Appeal No.s 211 and 212 of 2008 thereby reversing the order dated November 17, 2008 passed by the learned Trial Judge in Title Suit No.129 of 2008.
(2.) THE petitioners as plaintiffs instituted a suit for a decree of declaration that the plaintiffs are the owners and occupiers of 'A' schedule property and 'B' schedule property which is a part of 'A' schedule property, a decree of further declaration that the Registered Deed in favour of the defendant No.s 1 and 2 executed by other private defendants/respondents herein, is not binding upon the plaintiffs, perpetual injunction and other reliefs. The defendant No.s 1 and 2 and other defendant No.s 3 to 14 are contesting the said suit. The plaintiffs moved an application for temporary injunction and upon hearing both the sides, the learned Trial Judge granted temporary injunction directing the parties to maintain status quo in respect of the 'B' schedule property till the disposal of the suit. Previously, the defendants filed an application under Order 39 Rule 4 of the CPC against the ad interim order of status quo and that application was also rejected on contests. Being aggrieved by such orders, the defendants preferred two appeals being Misc. Appeal No.211 of 2008 and Misc. Appeal No.212 of 2008 and those two Misc. Appeals were allowed on contests thereby setting aside the order of injunction in the nature of status quo. The Lower Appellate Court directed the learned Trial Judge to hear out the application for injunction filed by the plaintiffs and the application under Order 39 Rule 4 of the CPC filed by the defendants afresh within one month from the date of communication of the judgment. Being aggrieved by such order, this application has been filed. 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 while disposing of the two Misc. Appeals, the learned Appellate Court directed the learned Trial Judge to hear out the applications under Order 39 Rule 1 & 2 filed by the plaintiffs/respondents and the application under Order 39 Rule 4 filed by the defendants/respondents afresh within one month from the date of communication of the order. This order, I hold, has been passed by the learned Appellate Court within the competence of its jurisdiction. While disposing of the application under Order 39 Rule 1 and 2 filed by the plaintiffs/respondents, the learned Trial Judge directed both the parties to maintain status quo in respect of 'B' schedule property till the disposal of the suit. It may be mentioned herein that at the initial stage when the application for temporary injunction under Order 39 Rule 1 & 2 was moved on behalf of the plaintiffs/respondents, both parties were directed to maintain status quo till a certain period and against such order, the defendants filed the application under Order 39 Rule 4 of the CPC. While dealing with the two Misc. Appeals, the learned Appellate Court observed that both parties claimed ownership in respect of 'B' schedule property, as per observations of the learned Trial Judge. The learned Appellate Court observed that without holding an inspection of the suit property, the direction of the learned Trial Judge to maintain status quo could not be considered as good order. Accordingly, he directed that both the applications should be heard afresh for the ends of justice. The ground assigned by the Lower Appellate Court that without inspection, it could not be decided as to whether injunction should be granted or not, I hold, cannot be supported.
(3.) IT may be mentioned herein that the 'B' schedule property is a strip of land measuring 38' x 4' and the plaintiffs have contended that this strip of land is within the land described in 'A' schedule property whereas defendants have claimed that this property is within the 'C' schedule property as described in the schedule to the plaint. Now, the object of granting injunction is to keep the property in status quo till the disposal of the suit or at least till the disposal of the application for temporary injunction. At the risk of repetition, I may note that the ground of rejection of the order of status quo as passed by the Lower Appellate Court cannot be supported. Since a rival claim is there, a triable issue appears to have been formed and there is a prima facie case to go for trial over the matter in dispute. If injunction is not granted, if the order of status quo as granted previously is not maintained, the plaintiffs may suffer irreparable loss. Moreover the petitioner was enjoying the order of status quo before the learned Trial Judge. It is pertinent to mention herein that while both the parties filed applications for local inspection before the learned Trial Judge, those applications for local inspection were rejected. Since the petitioners were enjoying an order of status quo if it is not maintained and if the nature and character of the 'B' schedule property is changed by the actions of the defendants as alleged in the application, I am of the view, the plaintiffs will suffer irreparable loss. Therefore, in consideration of the fitness of the things in the given situation, it would be just and proper to maintain status quo of the 'B' schedule property till the disposal of the applications for injunctions. The impugned order should be modified accordingly.;