- (1.) The Order No. 12 dated August 24, 2012 passed by learned Civil Judge (Junior Division), 2nd Court at Alipore in Title Suit No. 19502 of 2011 is under challenge in this application.
(2.) The opposite party as plaintiff has instituted Title Suit No. 19502 of 2011 in the 2nd Court of learned Civil Judge (Junior Division) at Alipore against the petitioners herein for declaration and injunction. The plaint case in a nutshell is that the plaintiff/opposite party became the absolute owner of the suit property by virtue of a registered Deed of Conveyance dated December 24, 1981, that one Prem Chand Sood was the tenant in respect of a brick walled business shed measuring 2400 sq. feet, covered by corregated iron sheet over bamboo frame, that upon the demise of the said Prem Chand Sood, the defendants/opposite parties inherited the said tenancy and have been in occupation thereof at a monthly rental of Rs. 1,815/- payable according to English Calendar. It is the plaintiff's case that the defendant/petitioner No. 1 as the sole proprietor of M/s. Rana Engineering & Foundry Works has further tenancies under the plaintiff in respect of 1800 sq. feet business shed at a monthly rental of Rs. 1,452/- payable according to English Calendar and in respect of 2800 sq. feet business shed at a monthly rental of Rs. 1,980/- payable according to English Calendar. The plaintiff has averred that the defendant/opposite party No. 3 has another tenancy in respect of 400 sq. feet business shed at a monthly rental of Rs. 530/- payable according to English Calendar. All the said tenancies collectively form the suit property described in the Schedule of the plaint. The plaint case proceeds with the allegation that the defendants have stopped running business from the suit property and that having removed all their machineries, the defendants have been trying to sublet, assign or part with possession of the suit property without written consent and permission of the plaintiff as landlord. The plaintiff has also alleged that the defendants have neglected to effect repairs to the suit property. Finding that the defendant have been ignoring the plaintiffs refusal to grant them permission to sublet the suit property, started showing the suit property to the strangers with a view to sublet or assign or part with possession thereof for substantial consideration, the plaintiff has instituted the instant suit for declaration and for mandatory and permanent injunction. The plaintiff also filed an application for injunction under Order 39, Rule 1 and 2 of the Code of Civil Procedure praying for temporary injunction order restraining the defendants from subletting, assigning and parting with possession of the suit property. The said application for injunction was moved ex parte and ad interim injunction as prayed for was granted. The said interim order is being extended from time to time.
(3.) That upon service of the copy of the application for injunction upon the petitioners, the petitioners found from the Deed of Conveyance, forming Annexure A to the said application for injunction, that the property having been purchased by the plaintiffs during the period when the Calcutta Thika Tenancy Act, 1981 (Acquisition and Regulation) had already commenced and that being so the purchase and conveyance of the said property was illegal, void and invalid. Accordingly, the petitioner took out an application under Order 14, Rule 2 read with Section 151 of the Code of Civil Procedure praying for framing of and hearing the issue as to the maintainability of the suit first.;