- (1.) THIS revisional application is directed against the order No. 18 dated 4. 10. 2007 passed by the Learned Civil Judge (Junior Division), 2nd Court, Arambagh in T. S. No. 44 of 2007 granting defendants / respondents liberty to perform Saradiya Durga Puja each year in the suit Kha schedule property till disposal of the suit subject to the condition that the defendants would restore the previous condition of the suit property, i. e. , "kha" schedule property soon after the completion of such Durga Puja and thus disposing of the defendants" application under Section 151 C. P. C.
(2.) IT has been contended by the learned lawyer for the petitioners/plaintiffs that the plaintiffs and the proforma defendants are the owners of the suit property and the plaintiffs are in possession of the suit Kha schedule property by way of arrangement amongst cosharers. The defendants were given permission to perform such Durga Puja in the Kha schedule property for 7 years with a condition to restore the previous character of the said property. But the defendants are making unauthorized interference in erecting certain buildings by the plaintiffs over Kha schedule property as per the sanctioned plan and hence the suit was filed. In the suit a petition for temporary injunction was filed. Defendants claimed the suit property by way of adverse possession alternatively by way of irrevocable licence. The defendants filed an application under Section 151 C. P. C. for permission to carry out Durga Puja in the Kha schedule property in the year 2007 but the learned Trial Court by the impugned order granted permission to the defendants to perform Durga Puja every year.
(3.) LEARNED lawyer for the plaintiffs further contends that the defendants have been performing Durga Puja in the Kha schedule property with permission of the plaintiffs for the last 7 years and they have been making over possession of the same to the plaintiffs after four days and the plaintiffs are in possession of the suit property and defendants have no right, title and interest in the suit property. Their possession of the suit property if any was permissive which cannot clothe the defendants with title to suit property and the defendants cannot raise any objection to enjoyment of the suit property by the plaintiffs who are true owners according to their sweet-will. In view of the prayer of the defendants under Section 151 C. P. C they cannot be permitted to use the suit property for Durga Puja every for the year 2007 and Learned Civil Judge (Junior Division) was definitely wrong in granting the permission for performing the Durga Puja every year though the defendants prayed for such permission for the year 2007. The impugned order is obviously in excess of the prayer of the defendants. The plaintiffs being rightful owners cannot be saddled with the liability of permitting the defendants to perform Durga Puja every year. The instant order is liable to be vacated.;