PRASENJIT MANDAL,J - (1.) CHALLENGE is to the Order dated February 10, 2012 passed by the learned Additional District Judge, 12th Court, Alipore in Misc. Appeal No.84 of 2010 thereby affirming the order No.2 dated February 16, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Title Suit No.455 of 2010.
(2.) THE plaintiff/petitioner herein instituted a suit being the Title Suit No. 455 of 2010 against the opposite parties for a decree of declaration that the defendants/opposite parties herein could not make any construction in the suit premises and/or could not take forcible possession of the same without effecting partition of the same by metes and bounds and also for a decree of permanent injunction restraining the defendants/opposite parties herein from obstructing the common passage running through the suit premises in any manner whatsoever. In that suit, he filed an application for temporary injunction praying for an order restraining the defendants, their men and/or agents from obstructing the common passage running through the suit premises and for making any construction on the suit property and on taking forcible possession of the same till disposal of the suit. The plaintiff also prayed for ad interim injunction. The learned Trial Judge by Order No.2 dated February 16, 2010, rejected the prayer for ad interim injunction, but issued show- cause notice upon the defendants/opposite parties herein. The learned Trial Judge had also found that there was no urgency in granting an ad interim order. Being aggrieved by such order No.2 dated February 16, 2010 of the learned Trial Judge, the plaintiff preferred a Misc. Appeal being Misc. Appeal No.84 of 2010 and that Misc. appeal was also dismissed thereby affirming the Order No. 2 dated February 16, 2010. Being aggrieved, the plaintiff has filed this application. Now, the question is whether the impugned order should be sustained.
(3.) UPON hearing the learned Advocates for the parties and on going through the materials-on-record, I find that suit property is a piece of land measuring 3 cottahs, 3 chittaks and 12 sq. ft. Bastu land together with structures thereon at 15, Meher Ali Mondal Street, Kolkata-700027 under Police Station � Ekbalpur, Ward No.78 of the Kolkata Municipal Corporation. There were several transfers among the co-owners of the property in suit and ultimately, the plaintiff and the defendants became the co-owners of the suit property by such transfers and then on succession. As per materials-on-record, there is a common passage of 3 feet wide starting from Meher Ali Mondal Street and this common passage is meant for the ingress and egress of the parties to the suit. The plaintiff has contended that the defendants/opposite parties herein tried to erect one gate on the common passage of the suit property and as such, the plaintiff had to initiate with a proceeding under Section 144(2) of the Cr.P.C. He got an order in his favour but after expiry of the force of the said order in that proceeding, the defendants/respondents tried again to make an illegal construction on the common passage and as such, the petitioner was compelled to institute the said suit against the defendants.;