- (1.) This appeal will be heard on the following substantial question of law :- Whether the learned courts below were justified in passing a decree of permanent injunction against the appellants in a suit where both the courts below found that the appellants and the respondent nos. 1 and 2 are co-sharers in the suit property Lower court records need not be called for. Added defendant nos. 5 and 6/respondent nos. 1 and 2 are represented by Mr. Banerjee, learned senior counsel assisted by Ms. Sarkar, learned advocate.
(2.) The other respondents did not contest the suit before the learned Trial Court and/or the appeal before the learned first Appellate Court. As such, service of notice of appeal upon those respondents is dispensed with on the joint prayer of the parties. The appeal thus be treated ready as regards service. After the appeal was admitted, when the application for injunction filed by the appellants was taken up for hearing, we were requested by the learned counsel appearing for the parties to dispose of the appeal on merit by dispensing with the requirement of filing paper books as the fate of this appeal is dependent on the decision of this Court on a pure question of law as indicated above. Accordingly, we have decided to dispose of the appeal by dispensing with the requirement of filing paper books in this appeal. Here is the case, where we find that initially the plaintiffs/appellants filed a suit for declaration of their absolute title in respect of the suit property by virtue of their purchase from the recorded owners thereof. They prayed for injunction for restraining the original defendants from disturbing the plaintiffs' possession in the suit property. The suit was fixed for ex parte hearing as the original defendants did not come forward to contest the said suit. At the stage when the suit was fixed for ex parte hearing, the respondent nos. 1 and 2 herein applied for their addition as parties in the suit on the strength of their purchase of the suit property from their vendors who happened to be the co-sharers of the suit plot. They claimed that by virtue of such purchase, they became the owners of the suit property to the extent of the share which their vendors had in the suit property. Fact remains that though the recorded owners were co-sharers of the vendors of the respondent nos. 1 and 2 herein, but the names of the vendors of the respondent nos. 1 and 2 were not recorded as co-owners of the suit property in the record of rights. Be that as it may, recording of the name in the record of rights does neither create any title in favour of the person whose name is recorded in the record of rights nor it extinguishes right of a person who had title in it, but his name was not recorded in the record of rights. As such, simply by recording the names of the vendors of the plaintiffs, neither the vendors of the plaintiffs could have claimed their absolute title in the suit property nor the plaintiffs being their purchasers can claim absolute title in the suit property, particularly when we find that both the vendors of the plaintiffs and the vendors of the respondent nos. 1 and 2 are tracing out their title through their common ancestor.
(3.) The learned Trial Judge was pleased to allow the respondent nos. 1 and 2 to be added as defendant nos. 5 and 6 in the said suit. After they were added as defendant nos. 5 and 6 in the said suit, they filed written statement with a counterclaim in the said suit for declaring their share in the suit property and for injunction, so that their joint possession is not disturbed. After the counterclaim was filed by the defendant nos. 5 and 6/respondent nos. 1 and 2 in the said suit, the plaintiffs withdrew the plaint. The plaintiffs, however, filed written statement to the counterclaim filed by the defendant nos. 5 and 6/respondent nos. 1 and 2. The said counterclaim of the defendant nos. 5 and 6/respondent nos. 1 and 2 was ultimately decreed on contest by the learned Trial Judge declaring that the defendant nos. 5 and 6/respondent nos. 1 and 2 have eajmali possession and right, title and interest over 64 decimal of lands described in the schedule of the counterclaim. The plaintiffs were permanently restrained from dispossessing the defendant nos. 5 and 6/respondent nos. 1 and 2 from the property of the counterclaim. Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the plaintiffs/appellants preferred an appeal before the learned first Appellate Court. The said appeal was dismissed on contest. The judgement and decree passed by the learned Trial Judge was affirmed in appeal.;