- (1.) This revisional application is filed against the impugned order dated 19th march, 2013 passed by the Additional District Judge, Fifth Court, Howrah, in Misc. Appeal No. 277 of 2010 rejecting the appeal of the plaintiff/petitioner and also affirming the order under appeal dated 13th September, 2010 passed by the learned Civil Judge, Junior Division, Fourth Court, Howrah, in T.S. No. 16 of 2004.
(2.) Plaintiff's/petitioner's case is that the petitioner in terms of an agreement between the plaintiff/petitioner and one Samsul Haque, since deceased, is entitled to develop the property. plaintiff/petitioner entered into such agreement on 1st October, 1993 and thereafter incurred huge expenditure for getting the plan sanctioned and also for various other purposes. Although, plaintiff/petitioner took steps for having the plan sanctioned, there were several difficulties and the plaintiff/petitioner could not get the plan sanctioned till 2004. However, he was trying to get the plan sanctioned by opposite party no.5 being the Howrah Municipal Corporation (hereinafter referred to as the 'Corporation'). The Development Agreement of the property comprised in Holding Numbers 74, 75, 76, 77, 78 and 80 Pilkhana 2nd Bye Lane, Police Station-Golabari, Dist. Howrah, contained various clauses stipulating the right and entitlement of the plaintiff/petitioner to construct the multi-storied building without any interruption from the original owner, now substituted by the successors on the demise of the original owner.
(3.) When the plaintiff/petitioner is taking steps for getting the plan sanctioned, he came to know that the opposite parties were going to dispossess him and they are also trying to develop the property by a different developer. Plaintiff/ petitioner filed the suit with a prayer for a decree of declaration that plaintiff/petitioner is entitled to develop the property in terms of agreement. He also made a prayer for a decree for permanent injunction restraining the defendant and his men and agent from transferring or alienating the suit property to any third party. Plaintiff/petitioner also moved an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for ad interim temporary injunction on 24th February, 2010. Plaintiff/petitioner stated that he was desirous to promote or develop the schedule mentioned properties and he approached the defendants to give their consent and an agreement was made between the plaintiff/petitioner and defendant on 1st October, 2003. In terms of agreement plaintiff/petitioner would construct multi-storied building on the schedule mentioned property. Plaintiff/petitioner would make construction at his own financial capacity and he paid Rs.3,00,000/- as advance to the defendant i.e. predecessor-in-interest of opposite party nos. 1 to 4 in good faith. The defendant also delivered possession of the entire premises to the plaintiff/petitioner. According to plaintiff/petitioner he shall have right to induct tenant in the newly constructed flat and realise rent from the tenants and also shall have right to recover such rent for a period of ten years. After two years' construction period the property would be vested to the opposite parties. Plaintiff/petitioner has also right to collect rent and premium etc. for ten years from the date of construction work including the period of construction. It was claimed by the plaintiff/petitioner that he had been receiving rent from the old tenants uptil now. It was contended by the plaintiff/petitioner that the Corporation without any lawful reason delaying to sanction plan of the proposed building and, as such, plaintiff/petitioner was unable to construct building. It was also contended that the defendant/owner, since deceased, executed a power of attorney in favour of the plaintiff/petitioner on 1st October, 1993, which is still in force. It was alleged in that petition that defendant no.1 was threatening the plaintiff that the defendant was going to sale out the property to third party. However, plaintiff/petitioner visited the defendant no.1 on different occasions when he was told by the defendant/opposite party that he would sell out the property to third party but defendant refused to pay back the advanced amount to the plaintiff/petitioner.;