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District: Howrah

Before the Learned Civil Judge (Senior Division) 3rd Court at Howrah

 Title Suit No. of 2013

Sri Arindam Mullick and Another

… Plaintiffs

-  Versus –

Mr. Shaikh Maniruddin and Others

… Defendants

 An application for temporary injunction under Order 39 Rule 1 and 2 read with

Section 151 of the Code of Civil Procedure, 1908.

 The humble petition on behalf of the

Plaintiffs abovenamed most respectfully

Sheweth:

1.Your Petitioners most respectfully state that the Plaintiffs have filed this

suit against the Defendants inter alia for following reliefs:a) For Leave under Order 2 Rule 2 of the Code of Civil Procedure;

 b) For a decree of declaration declaring the Plaintiffs’ share to the extent

of the purchase made by the Deed of Conveyance dated 29.01.2002,

26.08.2004, 10.08.2012 and 27.08.2012;

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c) For a decree of declaration declaring transferring and/or conveying

sixteen annah share in respect of ‘A’ Schedule property by dint of the

purported Deed of conveyance dated 13.06.2011 between Defendant No.

1 and Defendant No. 2, is null and void and the Plaintiffs are not bound

 by the purported transfer;

d) For a decree of declaration that the Plaintiffs are the absolute owners

of the suit property described in the Schedule ‘B’ below togetherwith

undivided imparted proportionate share in the land at the three storied

premises situated at J. L. No. 16, R. S. Khatian No. 594, L. R. Khatian

No. 766/2, Dag No.-1234 under Sankarhati 2 No. Gram Panchayat area,

 Village and Mouja- Bamunpara, Post Office- Munshirhat, Police Station-

 Jagatballavpur, District-Howrah and the Defendants specially Defendant

No. 2 has no right title interest therein;

e) For a declaration that the Plaintiffs are the co-owners in respect of the

suit property described in Schedule ‘A’ togetherwith undivided imparted

proportionate share in the land within premises situated at J. L. No. 16,

R. S. Khatian No. 594, L. R. Khatian No. 766/2, Dag No.-1234 under

Sankarhati 2 No. Gram Panchayat area, Village and Mouja- Bamunpara,

Post Office- Munshirhat, Police Station-Jagatballavpur, District-Howrah

togetherwith common rights and common areas, common easement

attached to the suit property;

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f) For a preliminary decree for partition declaring the Plaintiffs’ undivided

1/4th share in the ‘A’ Scheduled property and also declaring 16 Annah

share in the ‘B’ Schedule property; For a final Decree for partition in term

of the Preliminary Decree in respect of ‘A’ Scheduled property in the event

failure to amicable partition by the parties in terms of the Preliminary

Decree amicably; In default appointing the Partition Commissioner to

effect partition by metes and bounds according to share of the Plaintiffs

and to pass a final decree in terms of Commissioner’s report;g) For a decree of permanent injunction restraining the Defendants and

their men and agents from obstructing the Plaintiffs to enter into the suit

properties mentioned and described in the Schedule below as well as

restraining the Defendants and their men and agents from disturbing,

harassing, creating nuisance and any kind of disturbance to the

Plaintiffs in enjoying their lawful and peaceful possession in the suit

properties mentioned and described in the Schedule ‘A’ and ‘B’ below;

h) For a decree of permanent injunction restraining the Defendants and

their men and agents from effecting any additions and/or alterations

and/or new construction in the suit properties mentioned and described

in the Schedule ‘A’ and ‘B’ below and/or creating any Third Part interest

and from transferring, assigning and/or parting with possession of the

suit properties described in the Schedules below to stranger/outsider

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 without the consent of the Plaintiffs illegally and in a high handed

manner;

i) For a Decree of permanent injunction restraining the Defendants and

their men and agents to collect rent from the other tenants;

 j) For an order of appointment of Receiver;

k) Costs of the suit.

 

2.The facts and circumstances of the suit are as follows:

i) That all the piece and parcel of the ground floor and first

floor of the three storied premises, containing a total of 17

(seventeen) shop-rooms among which 9 (nine) shop-rooms in

the ground floor and 8 (eight) shop-rooms in the first floor,

situated in the land and property measuring about 0.02 acre

or 02 Decimal “Bastu” land within the C. S. Khatian No.-

594, R. S. Khatian No.- 594, previous L. R. Khatian No.-

766/2, presently L. R. Khatian Nos.– 1769, 1770 and

other(s), Dag No.-1234, Village and Mouja- Bamunpara, J. L.

No.– 016, under Sankarhati No. II Gram Panchayat area,

Post Office- Munshirhat, Police Station-Jagatballavpur,

District-Howrah, more fully mentioned and described in the

Schedule “A” herein after and all the piece and parcel of the

second floor of three storied premises, containing 2 (two)

shop-rooms, verandah and proportionate share of staircase

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from the ground and 150 (One hundred fifty) square feet

open roof plus proportionate share of the remaining open

roof of Schedule – “A” property, which measuring about 146

(One hundred forty six) square feet, more or less, with

construction right over the roof along with all usual

easement rights over the premises, situated in the land and

property measuring about 0.02 acre or 02 Decimal “Bastu”

land within the C. S. Khatian No.- 594, R. S. Khatian No. -

594, previous L. R. Khatian No.- 766/2, present L. R.

Khatian Nos.– 1769 and 1770, Dag No.-1234, Village and

Mouja - Bamunpara, J. L. No.– 016, under Sankarhati No. II

Gram Panchayat area, Post Office- Munshirhat, Police

Station-Jagatballavpur, District-Howrah, more fully

mentioned and described in the Schedule “B” (herein after

collectively the “A” and “B” Scheduled properties will be

referred to as the “suit premises”) are the subject matter of

this suit and the “suit premises” is situated within the

 jurisdiction of this Learned Court.

In this regard a copy of the Schedule ‘A’ and ‘B’ is annexed

herewith collectively as Annexure-A.

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ii) That the “suit premises” were originally belonged to one

Lakshminarayan Chakraborty alias Lakshmikanta

Chakraborty, since deceased. Said Lakshminarayan

Chakraborty alias Lakshmikanta Chakraborty, since

deceased, son of Late Krishna Chandra Chakraborty,

resident of Village- Sekrahati, also known as Sankarhati,

Post Office-Munshirhat, Police Station-Jagatballavpur,

District-Howrah, was the sole and absolute owner and

occupier of the “suit premises”. Said Lakshmikanta

Chakraborty, the predecessor-in-interest of Defendants No.

2, 3 4 herein and Tuslibala Chakraborty and Sankari

Banerjee nee Chakraborty, became the absolute owner and

occupier of the entire 1.0000 or sixteen Annah share of the

Plot of Land No. 1234, classified as “Shali” land at that time,

measuring about 0.02 acre or 02 Satak, at Village and Mouja

 – Bamunpara, J. L. No.– 016, within Balia Pargana, under

Sankarhati No. II Gram Panchayat area, Post Office-

Munshirhat, Police Station-Jagatballavpur, District-Howrah,

 by purchasing the same from the then owners and

occupiers, by virtue of a Bengali Kobala dated April 27,

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1976, registered before the Sub- Registrar at Bargachia and

recorded in the Book No.- I, Volume No. – 23, Pages from 166

to 168, being Deed No. – 1514 for the year 1976. The said

Lakshminarayan Chakraborty alias Lakshmikanta

Chakraborty, while seized and possessed the aforesaid

property, duly muted his name as a “raiyat” in the L. R.

Record-of-Rights being L. R. Khatian No. – 766/2, J. L. No. –

016, in respect of the L. R. Plot of Land No. - 1234 and also

converted the land from “Shali” to “Bastu”. Thereafter said

Lakshminarayan Chakraborty alias Lakshmikanta

Chakraborty, erected a three storied building there

containing a total of 19 (nineteen) shop-rooms of different

sizes therein. Among those said 19 (nineteen) shop-rooms in

the “said properties” described in the Schedules below, 9

(nine) shop-rooms are in the ground floor, 8 (eight) shop-

rooms are in the first floor and 2 (two) shop-rooms are in the

second floor. Be it specifically mentioned that all those 9

shop-rooms in the ground floor and 8 shop-rooms in the first

floor, i. e., total 17 (seventeen) shop-rooms are part of said

“A” Scheduled and those 2 (two) shop-rooms etc. in the

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second floor are the part of said “B” Scheduled property. Be

it further mentioned that all the 17 shop-rooms situated in

the said “A” Scheduled property are in use by several “Ghar-

Bharatia” tenants.

iii) Thereafter by virtue of a registered Deed of settlement being

Deed No. 1134 dated June 5, 1982 registered at Bargachia

sub-registry office at Howrah, executed between said

Lakshmikanta Chakraborty, since deceased and one Mr.

 Jagadish Chandra Mishra, the later i.e. said Jagadish

Chandra Mishra became sole and absolute owner in respect

of the one room measuring more or less 100 square feet in

the North-Eastern side of the second floor of the said

properties. In the said Deed of Settlement said Jagadish

Chandra Mishra also got the easement right over the

 verandah adjacent to the said room in the second floor and

also over the staircase.

In this regard a copy of the aforesaid Deed of Settlement

dated June 5, 1982 is annexed herewith as Annexure-B.

iv) Thereafter by virtue of a registered Sale Deed being Deed No.

0199 dated 29.01.2002 registered at Bargachia sub-registry

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office at Howrah, executed between the Plaintiffs herein and

said Jagadish Chandra Mishra, the Plaintiffs have purchased

the said room in the north-eastern side of the second floor of

the said properties and accordingly the Plaintiffs have

 became jointly sole and absolute owners of the said room in

the second floor of the suit premises from January 29, 2002.

In this regard a copy of the aforesaid Sale Deed dated

29.01.2002 is annexed herewith as Annexure-C.

 v) In the mean time on or about 1998 said Lakshmikanta

Chakraborty alias Lakshminarayan Chakraborty died

intestate leaving behind his legal heirs being (i) Smt.

 Tulsibala Chakraborty, widow of Late Lakshmikanta

Chakraborty; (ii) Smt. Sandhya Pandit, i.e. the Defendant No.

3 herein, (iii) Smt. Sankari Banerjee, since deceased, (iv)

Smt. Menaka Adhikari, i.e. the Defendant no. 4 herein, no.

(ii), (iii) and (iv) are daughters of Late Lakshmikanta

Chakraborty and (v) Sri Kashinath Chakraborty, son of Late

Lakshmikanta Chakraborty, i.e. the Defendant no. 2 herein,

and all of the legal heirs accordingly became undivided 1/5th

shareholder and owner of equal 1/5th share in the said

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properties except abovementioned room in the north-eastern

side of the second floor of the suit premises of which said

Lakshmikanta Chakraborty, since deceased had by virtue of

a Deed of Settlement dated June 8, 1982 said Jagadish

Chandra Mishra became the absolute owner and presently

 by virtue of a Deed of Sale dated January 24, 2002 the

Defendants are the owners of the said room in the second

floor.

 vi) Thereafter by virtue of another registered Deed of Sale being

Deed No. 0405 dated 26.08.2004 registered at Bargachia

sub-registry office at Howrah, executed between the

Plaintiffs and all the legal heirs of Late Lakshmikanta

Chakraborty, the Plaintiffs have became joint and absolute

owners in respect of another room measuring more or less

40 square feet in the north-eastern side of the second floor of

the suit premises, and also became owners of the adjacent

 verandah and open roof measuring more or less 150 square

feet in the second floor including right to construct in the

said open roof. Be it mentioned here that in the said Deed of

conveyance dated 26.08.2004 Smt. Sankari Banerjee, since

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deceased has also put her respective signature as one of the

legal heir of said Sri Lakshmikanta Chakraborty, since

deceased.

In this regard a copy of the aforesaid Sale Deed dated

26.08.2004 is annexed herewith as Annexure-D.

 vii) Thus by virtue of abovementioned Deed of Sale dated

 January 24, 2002 and Deed of Sale dated August 26, 2004

the Plaintiffs became joint and absolute owners in respect of

the second floor in the said properties which is a three

storied building. The Plaintiffs are in possession of the

second floor of the suit premises since after their buying the

same and the Plaintiffs since then, are regularly paying

property tax in respect of the said two rooms in the second

floor i.e. the ‘B; Scheduled property herein. Be it mentioned

here that there are only two rooms in the second floor of the

suit premises.

In this regard the latest tax receipts of those two shop rooms

are annexed herewith as Annexure-E.

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 viii) In the mean time Smt. Tulsibala Chakraborty, widow of Late

Lakshmikanta Chakraborty died intestate and according to

Hindu Law the remaining legal heirs, namely Smt. Sandhya

Pandit, Smt. Sankari Banerjee, Smt. Menaka Choudhury,

i.e. all daughters of Late Tulsibala Chkaraborty and Sri

Kashinath Chakraborty, son of Late Tulsibala Chkaraborty,

 became joint owners and also each of them became

undivided 1/4th share-holder in respect of remaining ground

and first floor of the said premises.

ix) Thereafter all on a sudden form the month of June 2011, the

Defendant No. 1 started claiming him to be the sole and

absolute owner of the ground floor and first floor of the said

premises i.e. the ‘A’ Scheduled property herein and started

collecting rent from the tenants in the ground and first floor

of the suit premises. Be it mentioned here that the Plaintiffs

 were also been inducted as tenant in respect of one shop

room in the first floor of the suit premises.

 x) Thereafter, upon enquiry, the Plaintiffs came to know that

said Sri Kashinath Chakraborty, who is the son and one of

the legal heir of Late Lakshmikanta and Late Tulsibala

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Chakraborty, and also one of the co-owners and/or owner of

undivided 1/4th share of the ground and first floor of the said

premises, and also the Defendant No. 2 herein, had sold out

the entire said ‘A’ Scheduled Property to the Defendant No. 1

abovenamed. The Plaintiffs have further came to know that

two daughters and legal heirs of Late Lakshmikanta

Chakrbaorty namely Smt. Sandhya Pandit and Smt. Menaka

Banerjee i.e. the Defendant No. 3 and 4 herein, had executed

Deed of Gift in favour of Sri Kashinath Chakraborty and

gifted their respective undivided 1/4th shares of each in the

ground floor and first floor of the said premises to Sri

Kashinath Chakraborty and by virtue of those Deed of Gifts

Sri Kashinath Chakraborty had became undivided 3/4th

shareholder and owner of the 3/4th share in the said ‘A’

Scheduled property. Be it mentioned here another legal heir

of Late Lakshmikanta Chakraborty namely Smt. Sankari

Banerjee, since deceased, did not gift her share to Sri

Kashinath Chakraborty and retained her undivided 1/4th

share in the said ‘A’ Scheduled property, with herself till her

demise on or about 2006 and thereafter her legal heirs

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 became the joint owners and undivided equal share-holders

in respect of her 1/4th undivided share in the said ‘A’

Scheduled property. Hence, said Sri Kashinath Chakraborty

 became owner of undivided 3/4th share in the said ‘A’

Scheduled property and can not sell out entire portion of the

said ‘A’ Scheduled property to anyone as claimed by the

Defendant No. 1.

 xi) Be it mentioned here that said Smt. Sankari Banerjee, one of

the daughter and legal heir of said Late Lakshmikanta and

Late Tulsibala Chakraborty, died intestate on or about 2006

leaving behind her legal heirs namely (i) Sri Samir Banerjee,

husband of Late Sankari Banerjee; (ii) Sri Raju Banerjee, (iii)

Sri Sambhu Banerjee, both (ii) and (iii) are sons of Late

Sankari Banerjee and (iv) Smt. Shilpa Chakraborty, daughter

of Late Sankari Banerjee. According to the Hindu Law, all the

said legal heirs of Late Sankari Banerjee became joint and

absolute owners in respect of 1/16

th

 share each and/or each

of them became undivided 1/16th shareholder and owners in

respect of the said ‘A’ Scheduled property.

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 xii) Thereafter again by virtue of another registered Deed of Sale

 being Deed No. 2904 dated 10.08.2012 registered at

Bargachia sub-registry office at Howrah executed between

the Plaintiffs/Petitioners and Sri Samir Banerjee, Sri Raju

Banerjee and Sri Sambhu Banerjee, i.e. the legal heirs of

Late Sankari Banerjee, the Plaintiffs became joint and

undivided owners in respect of undivided 3/16th share in the

said ‘A’ Scheduled property.

In this regard a copy of the aforesaid Deed of Sale dated

10.08.2012 is annexed herewith as Annexure-F.

 xiii) Similarly thereafter by virtue of another registered Deed of

Sale being Deed no. 3070 dated 27.08.2012 registered at

Bargachia Additional District sub-registry office at Howrah

executed between the Plaintiffs and Smt. Shilpa

Chakraborty, i.e. the remaining legal heir of Late Sankari

Banerjee, the Plaintiffs became joint and undivided owners

in respect of rest 1/16th share in the ‘A’ Scheduled property

described below.

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In this regard a copy of the aforesaid Deed of Sale dated

27.08.2012 is annexed herewith and marked as Annexure-G.

 xiv) By virtue of those Deeds of Sale, the Plaintiffs herein became

co-sharer and/or undivided shareholder of 1/4th share in the

said ‘A’ Scheduled property. Be it further mentioned here as

earlier stated that the Plaintiffs have already became the

 joint and absolute owner of the said ‘B’ Scheduled property.

 xv) That upon further enquiry, the Plaintiffs have came to know

that by virtue of a registered Deed of Gift Dated 21.02.2008

registered at Bargachia sub-registry office, Defendant No. 3

and 4 have gifted their respective 1/4th shares in the said ‘A’

Scheduled property to the Defendant No. 1. By virtue of the

said registered Deed of Gift dated 21.02.2008 the Defendant

No. 2 has became owner of the 3/4th undivided share in the

said ‘A’ Scheduled property.

 xvi) Thereafter on June 13, 2011, the Defendant No. 2, by virtue

of a Deed of Sale being Deed No. 01591 registered at

Bargachia sub-registry office, sold out entire portion of the

said ‘A’ Scheduled property to the Defendant No. 1. Moreover,

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the Defendant No. 2 in collusion with Defendant No. 1

illegally and with ulterior motive executed the Deed of Sale

 where the Defendant No. 2 has mentioned himself as the

sole and absolute owner of the said ‘A’ Scheduled property

and also only mentioned Defendant No. 2, 3 and 4 as the

legal heir of said Lakshmikanta Chakraborty, since

deceased. Intentionally Defendant No. 2 has omitted the

name of Smt. Sankari Banerjee, since deceased, who is also

another legal heir of Mr. Lakshmikanta Chakrbaorty, since

deceased. Defendant No. 2 in collusion with other

Defendants including Defendant No. 1 misrepresented in the

said Deed of sale dated 13.06.2011 executed between

Defendant No. 2 and 1. Moreover, the Defendant No. 2 also

mentioned the Scheduled property as the two storied

 whereas originally the said premises is a three storied

 building. The third floor of the said premises is mentioned as

‘B’ Scheduled property of which the Plaintiffs are the owners.

In this regard a copy of the aforesaid purported Deed of Sale

dated June 13, 2011 is annexed herewith as Annexure-H.

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 xvii) That the Defendant No. 2 has no right to sale out the entire

portion of the said ‘A’ Scheduled property to the Defendant

No. 1 as he is only the owner of the 3/4th undivided share in

the said ‘A’ Scheduled property and also the Defendant No. 1

has no right to claim absolute ownership over the property of

 which other co-owners are still subsisting. Hence, the Deed

of conveyance dated June 13, 2011 executed between

Defendant No. 1 and Defendant No. 2 is a sham transaction

and should be declared as null and void as it has been

executed by practicing fraud and should not be given effect.

 xviii)That the Defendant No. 1, knowing fully well that his title

over the suit property is disputed and illegal, thereafter upon

misleading the Block Land and Land Revenue Officer,

 Jagatballavpur Block, Howrah, managed to mutate his name

as the sole and absolute owner in respect of the said ‘A’

Scheduled property.

 xix) That upon knowing these facts on 14.09.2012 the Plaintiffs

had made a representation and applied before the Block

Land and Land Revenue Officer, Jagatballavpur Block,

Howrah for correction and mutation for recording their name

as the sole and absolute owner in respect of second floor of

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the suit premises i.e. the said ‘B’ Scheduled property as well

as applied for recording their name as the co-owner in

respect of said ‘A’ Scheduled property.

In this regard a copy of the aforesaid representation is

annexed herewith as Annexure-I.

 xx) That the Block Land and Land Revenue Officer,

 Jagatballavpur Block, Howrah upon serving notice to the

Defendant No. 1, fixed several dates for hearing on this

issue. But the Defendant No. 1 dared to appear before

Learned Block Land and Land Revenue Officer,

 Jagatballavpur Block, Howrah on any occasion and

thereafter upon going through all the documents and

records and upon being satisfied thereon, on April 16, 2013

the Learned Block Land and Land Revenue Officer,

 Jagatballavpur Block, Howrah has been pleased to pass an

order to correct and modify the record and include the name

of the Plaintiffs as the co-owners of the said premises and

opened two new Khatians in favour of the Plaintiffs being

Khatian No. 1769 and Khatian No. 1770. Thereafter, the

Plaintiffs name had been accordingly included as the co-

owner in respect of the said premises.

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In this regard a copy of the aforesaid order dated April 6,

2013 alongwith the copy of the amended record and latest

tax receipt is annexed herewith collectively as Annexure-J.

 xxi) That as the Plaintiffs are undisputedly absolute and joint

owners in respect of the two rooms and adjoining floor area

in the third floor of the said property i.e. the said ‘B’

Scheduled property, hence the Plaintiffs are entitled for a

declaration that they are sole and absolute joint owners in

respect of the said ‘B’ Scheduled property.

 xxii)That since the year 2004 the Plaintiffs are in possession of

 both the rooms in the third floor and enjoying the same as

owners of the said property without any disturbance. Also

since the year 2004 the Plaintiffs are regularly paying tax in

respect of those two rooms in the second floor of the said

property as described in Schedule ‘B’ as aforesaid.

 xxiii)That since after allegedly becoming the owner of the said ‘A’

Schedule property, the Defendant no. 1 is constantly

harassing the Plaintiffs in their full enjoyment over the said

‘B’ Schedule property described below of which they are the

 joint and absolute owners as well as in enjoyment their

undivided 1/4th ownership over the said ‘A’ Scheduled

property.

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 xxiv)That the Plaintiffs are also a monthly tenant in respect of

one shop-room situated in the first floor of the said ‘A’

Scheduled property described below at a monthly rent of Rs.

150/- payable according to the Bengali calendar month. The

Plaintiffs were regularly uninterruptedly paying rent to the

Defendant No. 2 the allegedly erstwhile co-sharer of the said

‘A’ Scheduled property. Defendant no. 2 was collecting rent

from the Plaintiffs and also from the other tenants on behalf

of himself and also on behalf of the other legal heirs of Sri

Lakshmikanta Chakraborty, since deceased and Smt.

 Tulsibala Chakraborty, since deceased. But soon after the

abovementioned purported sham transaction of property

 between the Defendant No. 1 and 2, illegally the Defendant

No. 1 started claiming himself to be the sole and absolute

owner of the said ‘A’ Scheduled property and got his name

 wrongly mutated as well and stopped collecting rent from the

Plaintiffs and from some other tenants and started

threatening the Plaintiffs that if the Plaintiffs do not quit and

deliver the vacant khas possession of the tenanted shop-

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room to the Defendant no. 1 then they have to face dire

consequences.

 xxv) That thereafter accordingly the Defendant No. 1, to harass

the Plaintiffs, filed suit for eviction and recovery of khas

possession against the Plaintiffs under the Transfer of

Property Act which has been registered as Title Suit No. 92 of

2012 pending before the Court of Learned 7th Civil Judge

(Senior Division) at Howrah. The Plaintiffs have duly filed

their Written Statement and contesting the suit. But the

Defendant No. 1 herein who is the Plaintiff in the said Title

Suit No. 92 of 2012 is not taking steps and accordingly

Learned Trial Judge has fixed the matter on the next date for

last chance to show cause by the Plaintiffs.

 xxvi)That inspite of filing suit for eviction against the Plaintiffs,

the Defendant No. 1 and his men and agents, most of whom

are local hooligans, with the support of the other Defendants

are constantly threatening the Plaintiffs that they will

forcefully evict the Plaintiffs from the tenanted shop-room

situated in the said ‘A’ Scheduled property as well as also

from the said ‘B’ Scheduled property of which even the

Defendant No. 1 is not even the owner. Defendant No. 1 and

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his men and agents also denying the ownership of the

Plaintiffs in the said premises.

 xxvii)That on or about 08.01.2013 the Defendant No. 1 and his

men and agents, most of whom are local hooligans have

direly threatened the Plaintiffs that they will not allow the

Plaintiffs to enter into the said premises and deny the legal

right of ownership of the Plaintiffs over the said Scheduled

properties. They have directed the Plaintiffs to vacate the

tenanted shop-room in ‘A’ Scheduled property as well as

directed to vacate the shop-rooms owned by the Plaintiffs in

‘B’ Scheduled properties immediately or face the

consequence.

 xxviii)That having no other option the Plaintiffs have approached

the Jagatballavpur Police Station and lodged a written

complaint against the Defendant no. 1 in respect of his illegal

activities in 08.01.2013. Be it mentioned here that on

previous occasion on 19.08.2012 similarly the Defendant No.

1 created nuisance and threatened the Plaintiffs and as a

result the Plaintiffs had lodged a general diary at the

 Jagatballavpur Police Station against Defendant No. 1. The

Plaintiffs also had filed an application under Section 144 (2)

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of the Code of Criminal Procedure before the Learned

Executive Magistrate at Howrah being M. P. Case No. 65 of

2013 to restrain these illegal activities of the Defendant No. 1

and his men and agents. But the reckless Defendant No. 1

 with the help of other Defendants and their men and agents

 became more ferocious and adamant and started threatening

to harm the property and body of the Plaintiffs. Moreover,

the Defendants and their men and agents almost in regular

occasions use to create nuisance infront of the shop-room of

the Plaintiffs to create mental pressure upon them. Even the

Defendant No. 1 with help of the other Defendants and his

men and agents on several occasions tried to obstruct the

Plaintiffs to enter the shop-room and the ‘B’ Scheduled

portion of the said premises. But the Plaintiffs, being peace

loving citizens, somehow managed to avoid confrontation

 with them. But the adamant attitude of the Defendants was

increasing day by day. On 19.08.2013 the reckless and

adamant Defendant No. 1 and his men and agents again

came to the shop room of the Plaintiffs and threatened them

that their name had been illegally included in the Record

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Book before the Block Land Reforms Office and if the

Plaintiffs do not delete their name as the co-owner of the ‘A’

Scheduled property as recorded in the Record Book before

the Block Land Reforms Office, then the Plaintiffs have to

face the consequences which will not be good for their health

and business as well. Immediately thereafter having no other

alternative, the Plaintiffs again lodged a complaint before the

 Jagatballavpur Police Station in that regard on 19.08.2013

 being General Diary Entry No. 0938, dated 19.08.2012, at

the Jagatballavpur Police Station. These show the reckless

conduct of the Defendants specially Defendant No. 1.

Moreover, the Plaintiffs on 31.08.2013 have also send a

notice and intimated the present situation and high handed

activities of the Defendant No. 1 to the Pradhan of the

Shankarhati No. 2 Gram Panchayat.

In this regard a copy of the aforesaid complaint dated

08.01.2013 alongwith General Diary dated 19.08.2013 and

the aforesaid notice dated 31.08.2013 is annexed herewith

collectively as Annexure-K.

 xxix)That as the Plaintiffs have raised objection and challenged

the illegal Deed of Conveyance executed by the Defendant

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No. 2 in favour of Defendant No. 1 and also made public the

ill-intentions of the Defendant No. 2, 3 and 4 to not to give

the respective share to the legal heirs of their other deceased

sister namely Sankari Banerjee, hence the Defendant No. 2,

3 and 4 is now supporting Defendant No. 1 to create those

disturbances, nuisance, harassment to the Plaintiffs.

 xxx) That the Plaintiffs earn their livelihood from those shop

rooms situated in the said ‘A’ and ‘B’ Scheduled property,

and such continuous threat, disturbance, nuisance,

harassment inflicted at the instigation of the Defendants, the

life, liberty and livelihood of the Plaintiffs is at stake.

 xxxi)Not only that, inspite of obtaining a legal order from the

Learned Block Land and Land Revenue Officer,

 Jagatballavpur Block at Howrah, all the Defendants are also

denying the Plaintiffs as the lawful co-owner in respect of the

properties mentioned in the said ‘A’ and ‘B’ Schedule of the

property. As a result the Defendant No. 1 himself had

threatened to change the nature and character of the suit

property without the consent of the Plaintiffs as the

Defendant No. 1 had initially illegally recorded his name as

the owner in respect of said ‘A’ Scheduled property. Inspite of

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 being well aware of the fact that such recording is a illegal

recording and also being aware about rectification of such

recording and inclusion of the names of the Plaintiffs as the

co-owners, the Defendant No. 1 alongwith the other

Defendants, are threatening the Plaintiffs that they would

sale, transfer and/or alienate the said properties mentioned

in the Schedule below without the consent of the Plaintiffs

and dispossess the Plaintiffs. xxxii)Hence, it is necessary that an order of permanent injunction

against all the Defendants is passed in favour of the

Plaintiffs restraining the Defendants and their men and

agents, specifically the Defendant No. 1 and his men and

agents, most of whom are local hooligans, not to dispossess

and/or try to dispossess the Plaintiffs without the due

process of law and also not to create any disturbance,

nuisance, harassment and/or objection in enjoyment of the

Plaintiffs in the possession in the said properties mentioned

in the said ‘A’ and ‘B’ Schedule. The Defendants shall also be

restrained to create any objection to the Plaintiffs from

entering in to the said property any time they need to.

Moreover, all the Defendants may be restrained to change the

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nature and character of the suit premises mentioned in the

said ‘A’ and ‘B’ Schedule as well as the Defendant No. 1 shall

 be restrained to sale, transfer and/or alienate the said ‘A’

and ‘B’ Scheduled property without due consent of the

Plaintiffs as the Plaintiffs are the owners in the ‘B’ Scheduled

property and co-sharers and co-owners in the said ‘A’

Scheduled property.

 xxxiii)That the Plaintiffs are entitled to permanent injunction in

the nature mentioned in the foregoing paragraph till the

disposal of the suit.

 xxxiv)That inspite of knowing fully well that the Plaintiffs are

lawful 1/4th share-holder in respect of the said ‘A’ Scheduled

property, the Defendant No. 1 is collecting rent alone from

the other tenants in the ‘A’ Scheduled property.

 xxxv)The Plaintiffs have also made notice to the other tenants in

the said ‘A’ Scheduled property for payment of proportionate

share of the rent to the Plaintiffs but neither the Defendant

No. 1 nor the tenants are paying the portion of the rent to

the Plaintiffs and on the other hand the Defendant No. 1 is

collecting rent regularly from the other tenants in the said ‘A’

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Scheduled property without giving share of such to the

Plaintiffs.

 xxxvi)That it is necessary that an order of permanent injunction

should also be passed in favour of the Plaintiffs restraining

the Defendant No. 1 and his men and agents to collect total

amount of rents regularly from the other tenants of the

shop-rooms situated in the said ‘A” Scheduled property.

 xxxvii) Hence, it is necessary that a receiver may be appointed

 who will collect rent on regular basis from all the tenants in

the said premises described in the said ‘A’ Schedule and

upon collecting rent, he will distribute it to all the lawful

owners of the ‘A’ Scheduled property till the disposal of the

suit.

 xxxviii) Moreover, since the said property is undivided, hence,

on several occasions the Plaintiffs also has approached the

Defendants for partition of the said premises and also asked

for partition of the Scheduled property in terms of the Order

dated April 16, 2013 passed by the Learned Block Land and

Land Reforms Officer, Jagatballavpur Block at Howrah both

 by metes and bounds by way of amicable settlement but the

Defendants were not inclined to do so. The Defendant No. 2,

3 and 4 informed the Plaintiffs that as they had sold out

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their entire share and as the Defendant No. 1 is the sole

owner of the ‘A’ Scheduled property hence they can not

interfere in any dispute arising in respect of the Scheduled

suit properties. The Defendant No. 2, 3 and 4 also did not

accept the Plaintiffs as the owners of the ‘A” Scheduled

property. On the other hand, the Defendant No. 1 has also

refused the proposal of partition made by the Plaintiffs on

the ground that he is the sole and absolute owner of the said

premises and he is free to do anything with these Scheduled

properties even with the ‘B” Scheduled property and also he

does not accept the Plaintiffs claim as the lawful owners in

respect of ‘A’ as well as ‘B’ Scheduled property and also

negates the order of the Learned Block Land and Land

Reforms Officer, Jagatballavpur Block at Howrah.

 xxxix)The Defendants, specifically the Defendant no. 1 is illegally

attempting to deprive the Plaintiffs from their claim of

legitimate share over the Scheduled property described below

and in the above factual scenario unless the decree of

partition as prayed for herein after is granted the Plaintiffs

 would suffer irreparably.

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 xl) That the cause of action for partition arose on December

2012 when the Defendants refused to partition of the

properties mentioned and described in the Schedule ‘A’ and

‘B’ of the plaint amicably amidst the Plaintiffs and the

Defendants and also lastly on July 2013 the when Defendant

No. 1 without the consent of the Plaintiffs threatened to

dispossess the Plaintiffs forcefully, change the nature and

character of the entire suit properties mentioned in the said

‘A’ and ‘B’ Schedule property and also to transfer, sale

and/or alienate the said premises to the third party.

 xli) That the cause of action for the Permanent injunction arose

on several occasions and till date it is continuing when with

the support of the other Defendants, the Defendant No. 1

and his men and agents, most of whom are local hooligans,

direly threatened the Plaintiffs to dispossess them forcefully

from their possession over the suit premises.

 xlii) That the balance of convenience and inconvenience is lying

in favour of the Plaintiffs and hence, the Plaintiffs are

entitled to get the reliefs as prayed for or else the Plaintiffs

 will suffer irreparable loss and injury.

 

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3.The Plaintiffs most respectfully state that the Defendants specifically

Defendant No. 1 is still claiming himself to be the owner of the entire suit

premises and denying the legitimate right title interest of the Plaintiffs

over the suit premises as mentioned as said ‘A’ and ‘B’ Scheduled

property.

4.The Plaintiffs most respectfully state that the Defendant No. 1 is

regularly collecting the rents from all the tenants under the said ‘A’

Scheduled property and is denying the Plaintiffs their proportionate

share over the rent.

5.The Plaintiffs most respectfully state that on several occasions the

Defendants and their men and agents, most of them of which are local

hooligans, have threatened Plaintiffs to vacate all the shop rooms

possessed by them in the entire portion of the said premises. The

reckless Defendants also tried on several occasion to restrain Your

Petitioners to enter into the said premises. Constantly the Defendants

specifically Defendant No. 1 is threatening the Plaintiffs to create third

party interest over the said ‘A’ Schedule property by way of sale transfer

or alienation and will change the nature and character of the entire suit

premises including said ‘A’ as well as ‘B’ Scheduled property.

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6.The Plaintiffs most respectfully states that if notice of this application is

served on the Defendants, the Defendants shall attempt to render the

present proceeding largely infructuous by taking steps to create third

party interest in the suit premises or by negating lawful right title

interest of the Plaintiffs or by taking steps to sale and/or alienate and/or

transfer the suit premises in order to prejudice to the Petitioners.

7.That the Plaintiffs have good prima facie case to go for trial.

8.That the balance of convenience and inconvenience is in favour of the

Plaintiffs.

9.That unless order of temporary injunction is passed restricting the

Defendants from disturbing and/or interfering with the possession user

and enjoyment of the Plaintiffs in the suit properties described in the

Schedule ‘A’ and ‘B’, the Plaintiffs will be seriously prejudiced and will

suffer irreparable loss and injury which can not be compensated by

money.

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10. Unless and until Orders as prayed for are passed, Plaintiffs will

suffer irreparable loss and prejudice.

11. This application is bonafide and made in the interest of justice.

In the premises, Plaintiffs humbly pray your

Honor be pleased to issue rules calling upon the

Defendant No. 1 to 4 to show cause as to why an

order of temporary injunction till the disposal of

the suit shall not be passed against the

Defendant No. 1 to 4 restraining all the

Defendants and their men and agents from

obstructing the Plaintiffs to enter into the suit

premises mentioned and described in the said ‘A’

and ‘B’ Schedule property as well as restraining

all the Defendants and their men and agents

from disturbing, harassing, creating nuisance

and any kind of disturbance to the Plaintiffs in

enjoying their lawful and peaceful possession in

the suit premises mentioned and described in

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the said ‘A’ and ‘B’ Schedule property and also

restraining all the Defendants and their men

and agents from effecting any additions and/or

alterations and/or new construction in the suit

premises mentioned and described in the said ‘A’

and ‘B’ Schedule property and/or creating any

 Third Party interest and from transferring,

assigning and/or parting with possession of the

suit premises described in the said ‘A’ and ‘B’

Schedule property to stranger/outsider without

the consent of the Plaintiffs illegally and in a

high handed manner and also restraining the

Defendant No. 1 and his men and agents to

collect rent from the other tenants and if any

cause is shown by the Defendants herein then to

make the said Rules absolute on hearing the

parties and meanwhile considering the urgency

involved in the facts and circumstances stated

above in this matter and also considering that

delay would defer the purpose of the filing of this

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application Learned Court be pleased to pass an

order of ad-interim injunction on the aforesaid

terms and to pass such further and/or other

Order and/or orders and/or direction and/or

directions and/or relief and/or reliefs be passed

and/or granted as to this Learned Court may

deem fit and proper.

 And for this act of kindness the Plaintiffs as in duty bound shall ever pray.

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 Verification

I, Sri Arindam Mallik, son of Sri Harihar Mallik, aged about years by faith

Hindu by occupation business residing at Village and Mouja-Bamunpara,

Police Station-Jagatballavpur, District-Howrah, do hereby verify and state that

all the foregoing paragraphs in the plaint are true to my knowledge and belief. I

do sign this verification on day of December 2013 at the office of the

 Advocate.

Date:

Deponent

Identified by me

 Advocate

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 Affidavit

I, Sri Arindam Mallik, son of Sri Harihar Mallik, aged about years by faith

Hindu by occupation business residing at Village and Mouja-Bamunpara,

Police Station-Jagatballavpur, District-Howrah, do hereby solemnly affirm and

say as follows:

1.That I am the Plaintiff No. 2 abovenamed and constituted attorney of the

Plaintiff No. 1 and as such I am fully conversant with the facts &

circumstance of this case out of which this instant Suit has arisen and

as such I am competent to affirm this affidavit on my behalf and on

 behalf of the Plaintiff No. 1.

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2. That the statements made in paragraphs no. 1 to are true to my

knowledge and the rests are my humble submission by this Learned Court.

Prepared in my office The deponent is known to me

 

 Advocate

Solemnly affirmed on day of December 2013

at the office of the Learned Advocate

Schedule-“A”

 All that piece and parcel of ground and first floor of the three storied premises

situated in the land and property measuring about 2 Decimal Bastu land

 within the J. L. No. 16, R. S. Khatiyan No. 594, L. R. Khatiyan No. 766/2, Dag

No.-1234 under Shankarhati 2 No. Panchayat area, Village and Mouja-

Bamunpara, Post Office- Munsirhat, Police Station-Jagatballabhpur, District-

Howrah since butted and bounded as follows:

On the North: Plot No. – 1235 and a portion of the Plot No. 1633

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On the South: - “Howrah-Amta” Road.

On the East: - “Amta-Jagatballavpur” alias “Munshirhat-Ichanagari”

Gram Sarak and a road-side shop named “Mullick Stores”.

On the West: - Plot No. – 1633.

Schedule-“B”

 All that piece and parcel of second floor of three storied premises situated in

the land and property measuring about 2 Decimal Bastu land within the J. L.

No. 16, R. S. Khatiyan No. 594, L. R. Khatiyan No. 766/2, Dag No.-1234 under

Shankarhati 2 No. Panchayat area, Village and Mouja- Bamunpara, Post Office-

Munsirhat, Police Station-Jagatballabhpur, District-Howrah since butted and

 bounded as follows:

On the North: Plot No. – 1235 and a portion of the Plot No. 1633

On the South: - “Howrah-Amta” Road.

  On the East: - “Amta-Jagatballavpur” alias “Munshirhat-Ichanagari”

Gram Sarak and a road-side shop named “Mullick Stores”.

On the West: - Plot No. – 1633.

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