G.N.RAY, J. - (1.) This appeal arises out of the order No.54 Dt. May 12, 1983 passed by the learned Judge, 12th Bench, City Civil Court, Calcutta in Title Suit No. 1663 of 1981. By the aforesaid order, the application made by the plaintiffs-respondents for temporary injunction restraining the defendants 1 to 7 from interfering with the plaintiffs' possession in respect of 4 rooms with annexed covered verandahs appertaining to Premises No. 5A, Brindaban Mullick Lane and comprised in Lot 'C' of the plan annexed with the said application for temporary injunction was allowed by the learned Judge. It may be noted that the plaintiffs-respondents instituted the said Title Suit No. 1663 of 1981 for a declaration to the following effect:- "(a) A decree declaring that the decree dt. 23-2-65 passed in O.S. Suit No. 2590 of 1956 being a preliminary compromise scheme decree declaring merely shares of parties on partition in joint properties in schedule and not a decree for possession, the same cannot be executed for recovery of possession by one or more co-owners inter alia defendant 1 in respect of their shares only to the exclusion of others and the same was executable for joint or simultaneous possession of all co-owners in respect of their individual shares only on effecting actual partition by metes and bounds, making each unit self-contained and independent through separate procedure under O.20, R.18(2) C.P.C. and may be directed to be so done. (b) A decree declaring that recovery of tenants' possession at premises No.33/A, Badur Bagan Street as forming parts of Schedules 'A' and 'B' properties being 'King Pin' of entire scheme for partition, terms of settlement and the compromise decree, impossibility of such recovery of possession beyond the control of parties renders the compromise decree passed in O.S. Suit No. 2590 of 1956, void, inoperative and not binding on the parties, which consequently restores 1/7th share of co-ownership on all properties of Schedules I, II, III and IV to plaintiffs 1 to 6, 1/7th share that of to defendant 1, 1/7th share that of to defendants 2 to 7, remaining 4/7th share that of to defendants 8 to 11 and such jointly owned properties be valued afresh and be partitioned in aforesaid proportionate shares by metes and bounds amongst the plaintiffs and defendants through passing of preliminary and final decree respectively. (c) A decree declaring that the decree in O.S. Suit No. 2590 of 1956 having imposed reciprocal obligation on each of the parties to make out each lot of scheduled properties self-contained and independent only on successful discharge of their duties in obtaining vacant possession from tenant none of the said (sic) inter alia defendant 1 can seek execution of the said decree for recovery of possession of his allotted portion isolated by without showing his inability to put plaintiffs 1 to 8 in possession of Lot A as self-contained and independent unit or without at least delivering to them the portion of Lot A in possession of defendant 1. (d) A decree declaring that the reciprocal licensing arrangement and/or realisation of fees therefor as contained in Cl.21 of terms of settlement being consideration are void, inoperative and/or not binding on the parties inter alia, plaintiffs 1 to 8, alternatively the same being not related to or within the scope of the O.S. Suit No. 1590 of 1956 but extraneous to it, incorporating the said arrangement within the operative part of the decree passed in the said suit has no sanction of law and hence not executable and/or the time schedule for recovery of tenants' possession and the duration of plaintiffs' stay at Lot C as in Cl.21 of the terms of settlement being not the essence of the agreement/terms of settlement for partition, forfeiture, if any, if altered, the same is relievable and/or extendable till actual recovery of tenants' possession by obtaining and executing the decree for ejectment against them. (e) Decree declaring that all orders passed, steps taken or operations undergone in execution of recovery of possession of isolated portion of defendant 1 in purported enforcement of the joint decree, at the instance of defendant 1 only are void, inoperative and not binding on the parties inter alia plaintiffs 1 to 8. (f) Decree for permanent injunction restraining defendants 1 to 7 from disturbing, obstructing and/or interfering with peaceful use, occupation and possession of plaintiffs 1 to 8 in respect of their present exclusive possession of 4 rooms with attached covered verandahs and commonly usable entrance passage courtyard and tap water connection situated at 5A, Brindaban Mullick Lane, falling under Lot C, till the plaintiffs are delivered with the Lot 'A' in entirety as independent and self-contained unit, by execution of the decree in O.S. Suit No. 2590 of 1956 or otherwise."
(2.) A prayer for temporary injunction was made in the plaint and a separate application was made under O.39, Rr.1 and 2, C.P.C. for temporary injunction inter alia, praying for a Rule calling upon the opposite parties 1 to 7 to show cause as to why they will not be restrained by an injunction from obstructing, disturbing or interfering with the petitioners' present possession in 4 rooms with annexed covered verandahs under their exclusive use and occupation and their right to common use with opposite party 1 in respect of entrance door and passage, courtyard and the drinking tap water in part of the premises No.5 A, Brindaban Mullick Lane fallen in Lots B and C by execution of the decree passed in O.S. 2590 of 1956 or otherwise till the hearing of the present suit.
(3.) It appears that the learned Judge by order No.3 dated 28-8-81 granted an ex parte interim order on the said application restraining the defendants from disturbing the peaceful possession of the plaintiffs in any manner till the disposal of the application. The said application was thereafter contested by the defendant 1 and he also filed an affidavit-in-opposition which has been incorporated in the paper book in this appeal. It also appears that the defendant 1 has also filed a written statement in the said suit. It may be noted in this connection that respondents 15 to 18 instituted a suit being Suit No. 2590 of 1956 in the ordinary original civil jurisdiction of this Court inter alia praying for a declaration and for injunction directing the defendants to give effect to certain partition scheme or alternatively for partition of the joint properties by metes and bounds in respect of premises No. 5A, Brindaban Mullick Lane, 33A, Badur Bagan Street, and 18/2, Vidyasagar Street within the city of Calcutta. On 23-2-1965, a compromise decree was passed in the said partition suit and it appears that in terms of the said decree, premises No. 18/2, Vidyasagar Street was allotted exclusively to respondents 15 to 18 and 5 A, Brindaban Mullick Lane and 33A, Badur Bagan Street which are adjoining houses were divided into three Lots 'A', 'B' and 'C'. Lot 'A' was allotted to the predecessor-in-interest of the respondents 1 to 8 namely one Sudhir Kumar Sinha and Lot 'B' was allotted to the predecessor-in-interest of the respondents 9 to 14 and Lot 'C' was allotted exclusively to the defendant 1 who is the appellant in this appeal.;