Khwaja Mohammad Yusuf, J. - (1.) Plaintiffs-petitioners have challenged the judgment and order dated 23rd December, 1988 passed by the learned Assistant District Judge, 8th Court, Alipore, in Misc. Appeal No. 282 of 1987 reversing the order of maintenance of status quo in respect of the suit property to the order of status quo in relation to the Doba only as found by the Commissioner inhe suit. The case of the petitioners, in short, is that the Premises Nos. 54C and 54D, Satchasi Para Road (formerly 54 Satchasi Para Road) within the Police Station of Cossipore, Calcutta-2, measuring about Bigha 8 Chattack of land including tank and its bank once belong to one Pannalal Dutta. On Sri Duttas death the said property devolved upon his son Moloy Samiran Dutta and the predecessors-in-interest of Moloy Samiran Dutta being proforma-Opposite Party Nos. 3 to 6 settled the entire Bastu land from the part of the said Premises No. 54, Satchasi Para Road to different tenants including the petitioners on ground rents with customary easement right in the aforesaid tank. With the coming of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, the rights of the landlords in the lauds vested with the State and the Opposite Party Nos. 3 to 6 to rave the property from the mischief of section 5 of the said Act filled up three-fourth of the tank in collusion with the agents of the Calcutta Municipal Corporation and managed to get the separate holding numbers as 54C and 54D, Satchasi Para Road. After filling in the three-fourth of the suit tank the said Opposite Party Nos. 3 to 6 divided the land into several plots and entered into agreements for sale with different parties. The Defendant-Opposite Party No. 1 is a firm of which the Defendant-Opposite Party No. 2 is a partner. The Opposite Party No. 1 has been authorised to filling the rest of the tank now left and to let out and construct roads, drains, etc. to develop the suit land in collusion with the local anti-social elements and thus they ate bent upon destroying the right of easement of the petitioners in the said tank. This compelled the petitioners to institute Title Suit No. 86 of 1987 in the 3rd Court of Munsif at Sealdah for declaration of right of easement in the suit tank and the permanent injunction restraining the opposite parties from changing the nature and character of the suit property and also for mandatory injunction and other reliefs. The learned Munsif by his order dated 30th April, 1987 directed both the sides to maintain status quo in respect of the suit property. The opposite parties preferred an appeal and the learned Assistant District Judge was pleased to modify the order of the learned Munsif by partially allowing the appeal and granted status quo in respect of the existing Doba only which is yet to be filled in. Being aggrieved by the order of the Lower Appellate Court this revisional application has been preferred to set aside the order of the learned Judge.
(2.) On 24th January, 1989, this Honble Court issued a Rule and granted interim order. The Defendant Nos. 1 and 2 i. e., the Opposite Party Nos. 1 and 2 in the revisional application, filed an application for vacating the interim order on 8th March, 1989 which according to Mr. Kapur, appearing for this defendant, should be taken as affidavit-in-opposition to the application under section 115 of C. P. C.
(3.) Mr. Roy Chowdhury, the learned Advocate appearing for the petitioners, forcefully made out a case that the predecessors-in-interest of Moloy Samiran Dutta submitted a plan to the Calcutta Municipal Corporation and therein the suit tank was clearly shown and also the Smart Plan clearly shows that the suit property is nothing but tank. It appears from a true copy of the plan supplied by the Chief Valuer and Surveyors Department dated 16th March, 1987, being Annexure 'D' to the revisional application, that the Opposite Party Nos. 3 to 6 who are wife, daughter and sons of the late Moloy Samiran Dutta, respectively, submitted this plan in respect of the suit property where the tank hat been prominently shown and the plan bears the signatures of the aforesaid opposite parties. The said plan is also accompanied by the copy of a portion of the Smart Survey Map, being Annexure 'E' and it very much tallies with the plan Annexure D and in the Smart Plan the tank is as prominent as in the plan submitted by the legal heirs of Moloy Samiran Dutta. On the basis of the plan and the Smart Map Mr. Roy Chowdhury enforces his right of temporary injunction and order of status quo in respect of the entire tank and not the Doba only. In the application under Order 39, Rule 1 read with section 151 of the Code of Civil Procedure, which is Annexure A to the revisional application,the petitioners have described in detail as to how their rights accrue in respect of the said tank in question and how their rights are being eroded by the Opposite Party Nos. 1 and 2 by making constructions thereon contrary to the interest of the petitioners.;