2021 (3) TMI 700 - HC - Benami Property

Order of injunction in respect of Schedule 'A' property - eviction suit pending before the learned Civil Judge (Junior Division) - HELD THAT - There cannot be any doubt that if the decree dated 15th February, 2018 is taken into consideration, there is a clear finding that deed in the name of the defendant No.1 meaning thereby Smt. Durga Mudi, marked as Exhibit-1 belongs to the mother. We feel that the plaintiff has been able to make out a strong case in so far as the appellants are concerned to exclude 'A' Schedule property from the partition suit in respect whereof the learned Civil Judge (Senior Division), 2nd Court, Howrah has granted status quo. We are not sure as to what materials were exactly made available to the learned Trial Judge at the time of disposal of the injunction application dated 22nd July, 2019. Accordingly, we direct the learned Civil Judge (Senior Division), 2nd Court, Howrah to rehear the injunction application after taking into consideration the decree passed without being influenced by our observation. The appellants shall be entitled to bring all necessary documents in support of their claim over 'A' Schedule Property by way of an affidavit filed within 10 days from date upon prior service to the respondents and the respondents shall be at liberty to file any rejoinder to the said affidavit within 10 days thereafter.

Summary

Issues involved:
Appeal against order of injunction in a suit for partition, consideration of decree passed in previous suits, determination of ownership of Schedule 'A' property, rehearing of injunction application, submission of necessary documents, decision on 'A' Schedule Property within four weeks, continuation of status quo, communication of order to Trial Court and respondents.

Analysis:
The High Court of Calcutta addressed an appeal arising from an order of injunction in a partition suit, specifically focusing on the ownership of Schedule 'A' property. The appellants contended that the Trial Court erred in granting the injunction based on a previous decree from Title Suit No.17 of 2011 and Title Suit No.2419 of 2014. The Court noted discrepancies in the timing of the supplementary objection filed by the appellants and the subsequent decree, highlighting that the decree was passed after the objection was affirmed. The Court emphasized the need for clear evidence to establish ownership, stating that the plaintiff failed to prove the property was purchased by a specific individual and that the defendant was a trustee. Consequently, the Court found in favor of the plaintiff regarding the exclusion of 'A' Schedule property from the partition suit.

The Court directed the Trial Court to rehear the injunction application, considering the decree from the previous suits without being influenced by the High Court's observations. The appellants were instructed to submit necessary documents supporting their claim over 'A' Schedule Property within a specified timeframe, with the respondents given the opportunity to file a rejoinder. The Trial Court was tasked with deciding the issue concerning 'A' Schedule Property within four weeks after completion of pleadings, allowing the Trial Judge to proceed with the suit in other aspects independently.

Regarding the status quo of other properties, the Court decided not to interfere with the existing finding. The order of status quo for 'A' Schedule Property was to be maintained for a set period or until the Trial Judge disposed of the matter in accordance with the High Court's directives. The appellants were responsible for communicating the Court's order to the Trial Court and respondents promptly. Ultimately, the appeal and the application for stay were disposed of, with the Court providing certified copies of the order upon request and undertaking.

This comprehensive analysis of the judgment highlights the key legal issues addressed by the High Court of Calcutta and the detailed decision-making process undertaken in resolving the appeal related to the partition suit and the injunction order concerning Schedule 'A' property.