9911796707
TMI Blog2008 (3) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... operty restraining the respondents from handing over the owners the allotted flats and from selling out any flats in the premises in question, was filed in the suit on or about 14.03.2004 wherein it was inter alia averred: That at present the plaintiffs and the defendant No. 1 to 6 are occupying 3 flats and 3 garages at premises No. 46A, Purna Chandra Mitra Lake, Kolkata - 700033, which are also undivided property. It was furthermore averred: That at present the plaintiffs have 93/240, undivided share, the legal heirs of late Pinaki Prosad Basu (the defendant No. 2 to 6) have 54/240, undivided share and the defendant No. 6 have 93/240, undivided share of the schedule 'A' and 'B' properties. Although by amicable agreements the parties are in possession of separate flats of schedule 'B' hereunder, there has not been any demarcated possession according to the respective share of the parties. 3. However, yet again on 11.04.2005, the plaintiffs filed an application for grant of injunction in respect of the schedule B property seeking to restrain the respondents from transferring or letting out any portion of the land to any third party. An order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2006, the learned Civil Judge allowed the application dated 14.08.2006 holding: From the order of the Hon'ble High Court it is palpably clear that full liberty has been given to the Trial Court to dispose of the application of the defendant No. 1 filed u/s 151 CPC in accordance with the law. It is already stated in my foregoing discussion that the materials on record go to show that defendant No. 1 is in possession of flat No. 201 of Schedule 'B' property while the plaintiffs are contending that they are in possession of the said flat. Considering the objection it is crystal clear that the defence version that the plaintiffs illegally put padlock and kept some sundry articles in the said flat is proved. Under the facts and circumstances I think that the plaintiff's should not be allowed to take the law in their own hands, and they are not supposed to make any obstruction to the defendant No. 1 in peaceful enjoyment of flat No. 201 of Schedule 'B' property. Therefore, the plaintiffs are hereby directed to remove the padlock and sundry articles from flat No. 201 immediately and they are hereby restrained from making any further obstruction to the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid flat No. 201 by any supporting document. 10. Mr. Haradhan Banerjee, learned Counsel appearing on behalf of the appellants, submitted that keeping in view the nature of preliminary decree passed by the learned Civil Judge, the Trial Judge as also the High Court committed a serious error in passing the impugned judgment. It was urged that the parties being co-owners and a final decree in the suit having not yet been passed, it is impermissible in law to pass an order of mandatory injunction and that too without arriving at a definite conclusion that the first respondent was in exclusive possession of Flat No. 201. 11. Mr. Animesh Kanti Ghosal, learned Counsel appearing on behalf of the first respondent, on the other hand, would support the impugned judgment. 12. There cannot be any doubt or dispute as a general proposition of law that possession of one co-owner would be treated to be possession of all. This, however, in a case of this nature would not mean that where three flats have been allotted jointly to the parties, each one of them cannot be in occupation of one co-owner separately. We have noticed hereinbefore that the plaintiffs - appellants themselves in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispossessed therefrom without the intervention of the court. In this case, the first respondent is not claiming title of adverse possession. The said decision has, therefore, no application to the fact of the present case. 15. Reliance has also been placed by Mr. Banerjee in Abu Shahid v. Abdul Hoque Dobhash and Anr. AIR1940Cal363 , Hemanta Kumar Banerjee and Ors. v. Satish Chandra Banerjee and Ors. AIR1941Cal635 and Jahuri Sah and Ors. v. Dwarika Prasad Jhunjhunwala and Ors.AIR1967SC109 . In Abu Shahid (supra), the question which arose for consideration was in regard to plea of ouster vis-`a-vis rendition of accounts. We are not concerned with such a question in this case. In Hemanta Kumar Banerjee and others (supra), the question which arose for consideration was as to whether the rule against partition amongst co-sharers is an elastic one. Again, we are not concerned with such a question here. In Jahuri Sah (supra), this Court opined: 12. What we have to consider then is whether the contract for payment of compensation is not enforceable. It is no doubt true that under the law every co-owner of undivided property is entitled to enjoy the whole of the property and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blish that the plaintiff while in possession, had been dispossessed on 20-6-1998 as claimed by him. Any way, the Additional District Judge has not referred to any such evidence except referring to the affidavit of Shivanand Mishra, who even according to the plaintiff was no more in occupation. Thus, the disturbance of the status quo by the defendants has not been established. Thus, prima facie it is clear that the plaintiff has not laid the foundation for the grant of an interim order of mandatory injunction in his favour. The order so passed by the Additional District Judge, and confirmed by the High Court, therefore, calls for interference in this appeal. 18. The fact situation obtaining herein, however, is absolutely different. In this case, such a foundational fact has not only been raised by the respondents, the appellants admitted the factual scenario in that behalf. No party, it is trite, ordinarily should be allowed to take benefit of his own wrong. For the reasons aforementioned and particularly having regard to the fact situation obtaining herein, we are of the opinion that the impugned judgments warrant no interference. Accordingly, the appeal is dismissed with cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
