JUDGMENT
G.C. De, J.
1. The defendants in Title Suit No. 2485 of 1994 before the fifth Bench of the City Civil Court being aggrieved and dissatisfied with the order No 69 dated 18.5.98 have preferred this appeal. By the said order, the learned Judge of the fifth Bench allowed the plaintiffs application under order 39 Rules 1 and 2 read with section 151 of the Civil Procedure Code on contest and directed both the parties to maintain status quo as on the date of the order with regard to the possession of the suit premises till the disposal of the suit
2. The admitted facts are–(1) the plaintiff was a tenant in respect of a garage and a servant’s quarter at premises No. 14B, Camac Street covering an area of 250 sq. ft, under Rajmata Ratankumari Devi who was the owner of the entire premises. (II) By an agreement dated 5.10.81 the said Rajmata gave development right in respect of the said premises No. 14B, Camac Street to the defendant No. 1 with right to negotiate with the tenants in order to develop the said property. However Rajmata Ratankumari Devi filed Title Suit No. 21 1984 praying for eviction of the plaintiff and ultimately the plaintiff and the present defendants settled the matter to the effect that the defendants should provide to the plaintiff 250 sq. ft. of super built-up area in lieu of handing over the possession of the garage and the servant’s quarter to the defedants and that the plaintiff would get further 300 sq. ft. super built-up area at the rate of Rs. 700/- per sq. ft. totalling an area of 550 sq. ft. of super built-up area to be provided in the fourth floor of the building to be constructed. (iii) A formal agreement was also executed between the plaintiff and the defendants on 5.12.89 and the Ejectment Suit No. 21 of 1984 was settled accordingly in terms of a solenama on 26.4.90. In terms of the agreement, the plaintiff duly paid a sum of Rs. 1,99,500/- as against the balance consideration money of Rs. 2,10,000 for the 300 sq. ft. of land by Instalments upto 9.1.93 and sent two other cheques for Rs. 5000/- and Rs. 4000/- on 23.8.93 towards the charges for electricity connection and generator, respectively, (iv) The defendants have constructed the entire fourth floor covering a total area of 6000 sq. ft.
3. The dispute between the parties arose thereafter. In the plaint as well as in the application for temporary Injunction, it is stated that the plaintiff is in possession and occupation of the fourth floor north-west corner of the said newly constructed structure, but it is not indicated actually how, on which date and by whom he was put into possession in respect of that portion in the fourth floor. The plaintiff has also claimed that on 10th August, 1994 the defendants by collecting hired men and goondas threatened the plaintiff from dispossession in respect of the said portion in the fourth floor for which the plaintiff made a complaint at Park Street Police Station by G.D. Entry No. 1156 dated 10.8.94. The plaintiff also obtained order under section 144 Cr.PC from the Executive Magistrate on 12.8.94 in which the Officer-in-Charge of the Park Street Police Station was directed to Inquire and report with a further direction to see that the plaintiff was
not forcibly ousted from the said portion. It was alleged that the defendants thereafter again tried to dispossess the plaintiff for which the plaintiff was constrained to file the suit with the following prayers :–
“(a) A decree for declaration declaring that the plaintiff is the lawful owner of the suit premises, as mentioned in the Schedule herelnbelow, and the defendants have no manner of right, title and Interest to Interfere with the peaceful possession of the plaintiff in respect of the suit premises:
(b) A decree or permanent injunction restraining the defendants and each one of them, their man, agents and servants from Interfering with the peaceful possession of the plaintiff in respect of the suit premises in any manner whatsoever.
(c) Receiver;
(d) Costs and Advocate’s fees;
(e) Such other relief or reliefs the plaintiff is entitled to.”
4. The defendants, on the other hand, had stated that without paying the full consideration amount the plaintiff along with his associates at about 6 p.m. on 10.8.94 forcibly occupied a portion on the north-west corner of the newly built-up, fourth floor though that portion was earmarked for sale to one Mr. S.C. Ray of Bombay. It is also stated that the plaintiff fraudulently incorporated the words ‘N-W’ (i.e. meaning north-west) in the copy of the agreement in his possession though in the original agreement lying with the defendants there was no such endorsement of ‘N-W’. It is further stated that the plaintiff illegally changed the first three pages of the agreement to manipulate the entire situation. It is also indicated that the sketch-map attached to the letter dated 27.2.89 is completely different from the annexure that was filed before this Court in Course of filing of the appeal, FMAT 2756 of 1994. So the contention of the defendants is that the plaintiff is merely a trespasser in respect of the disputed portion and hence he is not entitled to any relief whatsoever not to speak of an order of maintenance of status quo.
5. The learned counsels of both the sides argued at length in support of their rival contentions but it is Interesting to note from paragraph 11 of the plaint as well as the application for temporary injunction that the plaintiff has not indicated how and when he started occupying and possessing the north-west corner of the fourth floor. Similarly, the learned counsel appearing for the plaintiff could not explain how the plaintiff can get a declaration to the effect that he is the lawful owner of the suit premises and the defendants have no manner or right, title and interest in respect of the suit premises. It is a well settled principle of law that interim or temporary injunction are generally granted to protect the final relief in the suit but from the materials on record, we must say that before execution and registration of a deed of sale, the plaintiff cannot get declaration of his title as a owner as prayed for in this suit and hence as the final relief cannot be granted, there cannot be any meaningful purpose in granting the temporary injunction for protecting some right that cannot be given to the plaintiff.
6. It appears that before granting an order of temporary Injunction it is necessary to find out from the available materials as to whether the plaintiff has a prima facie case for injunction. It is already stated above that the plaintiff is not entitled to get the final relief as prayed for in the present form of the suit. It further transpires that the trial Court has not discussed in details this aspect nor there is indication that he found out a prima facie case. The learned counsel for the present opposite party plaintiff, argued at length to show that he is entitled to get protection under section 53A of the Transfer of Property Act as he has already paid 95% of the consideration money and is in possession in terms of the agreement between the parties. The learned counsel also drew our attention to a portion of the letter dated 27.2.89 written by the defendants wherein the plaintiff was given liberty to store in the premises of the defendants to a maximum of 250 sq. ft. The relevant portion is quoted below “till such lime the proposed building is constructed and your aforesaid area is allotted to you. We shall allow you to store whatever items you wish in our space to a maximum of 250 sq. ft. On the basis of this clause the learned counsel for the opposite party contended that his possession in the new built up space in the fourth floor is lawful and hence he cannot be disturbed.
7. A scrutiny of the above-quoted portion of the letter indicates that the defendants agreed to allow the plaintiff to store the articles of the plaintiff in the space of the defendants to a maximum of 250 sq. ft. and nowhere it is indicated that the plaintiff would keep those articles in the space under suit. There is nothing on record to show that the plaintiff was put Into lawful possession of the disputed space the area of which, according to the Engineer Commissioner is 724 sq. ft. (approx.) in the north west corner of the fourth floor of the building. On the other hand, there is another room in the fourth floor the area of which was calculated at 524.68 sq. ft. and it is still lying vacant.
8. So from the above discussion it is to be noted that there is a dispute as regards the location of the flat to be allotted to the plaintiff and without a full trial, it is not possible to come to a conclusion that the portion occupied by the plaintiff is the area that was agreed to be allotted to the plaintiff. It is also to be decided after a full trial of merits actually the first three pages of the written agreement were changed or not and whether the word ‘N-W’ appearing in the copy of the deed of the plaintiff was subsequently Inserted or not. It is pertinent to mention that in the sketch-map annexed to letter dated 27.2.89, an area has been indicated as 550 sq. ft. super built-up, but that sketch-map does not indicate that it is on the north-west corner. Similarly that sketch-map is also not drawn to scale nor it is a part of the sanctioned plan of the building. In fact, the letter was an understanding between the parties and it was not made a part of the formal agreement. Actually, the plaintiff has taken over possession of a space having 724 sq. ft. of super built-up area as against the agreed 550 sq. ft. of super built-up area. It is already observed that the plaintiff has failed to explain as to when and how he was lawfully put into possession in accordance with the agreement for which he is entitled to get protection under section 53A of the Transfer of Property Act. On the other hand, the materials on record are sufficient to indicate that the plaintiff is not entitled
to get a declaration of his title as prayed for in respect of the suit property. Merely on the basis of a disputed question of possession he cannot claim any equitable relief. So, we come to a conclusion that the plaintiff has failed to make out a prima facie case for Injunction. The trial Court having not considered these aspects there is sufficient reason to Interfere and to set aside the Impugned order.
9. As regards balance of convenience and inconvenience it appears that the disputed portion has been earmarked for another purchaser fixed by the defendants and as the building is promoted by them, they will be in troubles and distress if that earmarked portion is allowed to be occupied by the plaintiffs. Or in other words, the defendants will be in an inconvenienced position if the plaintiff is allowed to keep possession of the disputed portion. Similarly, the defendants will suffer irreparable loss and injury if they fall to hand over the possession of the disputed possession to the person for who it was earmarked. On the other hand, the plaintiff will not suffer any Injury as another room having a measurement of nearly 550 sq. ft. super built-up area is lying vacant on the fourth floor and he will have the right of specifically enforcing the agreement for occupation of the agreed portion, Considering all these aspects we do not think that the plaintiff is entitled to any order of injunction. It is already stated above that the trial court did not consider the prima facie case as well as the frame of the suit and misdirected itself in coming to a conclusion that the plaintiff has made out a good case for injunction. The Impugned order is accordingly liable to be set aside.
10. So in allowing this appeal it is ordered that the application for temporary Injunction be rejected on contest. The Interim order is accordingly vacated. Parties do bear their own cost of this hearing.
S. Banerjea. J,
11. I agree.
12. Appeal dismissed