Calcutta High Court (Appellete Side)
Dr. Rajashree Ray Bandyopadhyay vs Dr. Partha Sarathi Roy on 24 July, 2026
2026:CHC-AS:1111
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.
CO 1616 OF 2022
WITH
CAN 5 OF 2025
DR. RAJASHREE RAY BANDYOPADHYAY
VS
DR. PARTHA SARATHI ROY
WITH
CO 1920 OF 2022
DR. PARTHA SARATHI ROY
VS
DR. RAJASHREE RAY BANDYOPADHYAY
WITH
CO 1921 OF 2022
DR. PARTHA SARATHI ROY
VS
DR. RAJASHREE RAY BANDYOPADHYAY
WITH
CO 2316 OF 2022
DR. RAJASHREE RAY BANDYOPADHYAY
VS
DR. PARTHA SARATHI ROY
For the Petitioner/
Dr. Rajashree Ray
Bandyopadhyay
in CO 1616 of 2022
and 2316 of 2022 and : Mr. Sayantan Bose, Adv.
opposite party in Mr. Sarbajit Mukherjee, Adv.
CO 1920 of 2022 Ms. Priyanka Gope, Adv.
and CO 1921 of 2022
For the petitioner/
Dr. Partha Sarathi Ray in
CO 1920 of 2022 : Mr. Saurabh Guhathakurata, Adv.
And CO 1921 of 2022 Mr. Abhratanu Sarkar, Adv.
For the opposite party
In CO 1616 of 2022
And CO 2316 of 2022
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Reserved On : 16.06.2026
Judgement On : 24.07.2026
Uploaded On : 24.07.2026
CHAITALI CHATTERJEE DAS, J. :-
1. Four revisional applications under article 227 of the Constitution of India filed
by the petitioner, Dr. Partha Sarathti Roy and Dr. Rajashree Roy
Bandopadhyay against a composite order dated 1st June 2022, passed by the
learned Civil Judge (Senior Division), 2nd Court at Barasat in Title suit no.
669 of 2017 whereby all the applications filed, out which two applications
under section 151 by the original plaintiff mother as well as by present
petitioner for restoration of possession, one application under order 39 Rule 7
for appointment of Advocate Commissioner and an application for amendment
of plaint under Order VI Rule 17 of CPC filed by the brother Dr. Partha
Sarathi Roy were disposed of. On the joint prayer made by the parties all the
revisional applications are heard analogously .
2. The fact of the case in a nutshell is that a long-term lease in respect of the suit
premises was granted on 26 December 1975 jointly in favour of late Dr.
Dwijendra Kumar Roy and late Dr. Urmila Roy and they constructed a building
over the same who are the parents of the present parties to the proceeding. Dr.
Dwijendra Kumar Roy died on 11th January, 2017 leaving behind him his wife,
Dr Urmila Roy since deceased and present parties as his legal heirs. Prior to
his death Dr. Roy executed a will on 7 September 2016, bequeathing his 50%
share in the said property in favour of his daughter and a probate proceeding
in respect of the same is pending presently being contested by the brother. Dr.
Urmila Roy also on the same date, executed a will bequeathing her 50% share
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in the property in favour of the respondent/daughter. On 3rd November 2016
Dr. Urmila Ray revoked earlier will dated 7th September, 2016 and executed a
fresh will on 27th January, 2017 and registered a codicil of the said Will
registered on 3rd November 2016 whereby she bequeathed her 50% share in
the property in favour of her son. According to the plaintiff /mother during
April 2017, the daughter with her family members shifted from UK and came
to the house of the mother at 19 Creek Row in the middle of 2014 and started
living there with her family and after death of her father left the house which
the plaintiff mother came to learn that she in fact shifted to their Salt Lake
property behind her back and entered into the second floor which were being
used by the plaintiff/mother and used to keep under lock and key. The
plaintiff further came to learn that the daughter has inducted one Sunny
Sharma beyond her knowledge in respect of the first floor .On 26.4.2017 when
the plaintiff went to visit the suit property she was denied entry by the
domestic help of her daughter .Over the incident she also lodged one GD
before the Bidhannagar police station and further instituted a civil suit in the
year 2017 against the opposite party/daughter in which the present petitioner
was impleaded as proforma defendant number 2.The suit was contested by
the daughter by filing written statement denying the allegations levelled
against her by her mother .
3. By virtue of an order dated 7th August 2017, an ad- interim injunction order
was passed by the Learned Trial Court in favour of the mother on an
application filed by the mother under order 39 Rule 1 & 2 of CPC . The
opposite party /daughter also filed an application under order 39 Rule 1 and 2
against the mother on 15.3.2018 and the Court passed an order of status-
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quo with regard to the nature character and possession of the suit premises.
Since the said interim order as granted in favour of the plaintiff /mother was
alleged to be violated she further filed an application under Order 39 Rule 2A
of the Civil Procedure Code. An application under Section 151 of the Code of
Civil Procedure was filed on 29th March, 2018 in the suit by the daughter Dr.
Rajyashree Ray Bandopadhyay and on 28th June, 2018 such application was
disposed of with a direction to the IC, Bidhannagar PS to remove the padlocks
of certain rooms of the suit premises and to handover certain movable
properties to the respondent. The respondent was also permitted to use,
occupy and reside in certain portions of the same premises and rest of the
portions were directed to be kept under possession of late Dr. Urmila Ray and
her son.
4. Dr. Urmila Ray filed a revisional application being C.O 2204 of 2018
challenging the said order and by virtue of an order dated 27th July, 2018
passed by the Learned Co-ordinate Bench it was set aside. It is alleged by the
petitioner Dr. Partha Sarathi Roy that on 10 July 2018, the respondent
through police help with her men and agent ransacked the whole building in
the suit premises, looted valuables lying, and tortured her mother who was
then aged about 84 years and was very ill. However, the police put new
padlocks in certain rooms under occupation and possession of the petitioner
and his mother. On 2nd August, 2018 further application was filed with a
prayer for necessary direction to the IC Bidhannagar PS to restore possession
of rooms and articles in terms of the order dated 28th June, 2018. On 6th
October 2018, the original plaintiff/ mother, Dr Urmila Ray expired leaving
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behind her last Will and testament dated 22nd May, 2017, which is a
holographic Bengali Will and duly registered.
5. On 18 April 2019, when the present petitioner returned to India, his entry was
refused to the premises by the respondent and her men and servants.
Subsequently on 22nd July 2019, also he tried to enter into the suit premise
but he was severely assaulted and police refused to accept the complaint of the
petitioner. After demise of the mother, both the petitioner as well as the
respondent filed respective application for substitution in the title suit and by
an order dated 6th March, 2020 the application of the respondent for
substitution in place of deceased plaintiff was rejected and the application of
the petitioner was allowed. On 16th December, 2020 the plaintiff filed an
application under Order 6, Rule 17 of the Code of Civil Procedure for
amendment of the plaint and both the application for amendment and the
application for restoration of possession filed by the original plaintiff were fixed
for hearing on 8th February 2021. All the applications were heard together and
by the order impugned allowed the application for amendment of plaint and
application for appointment of Advocate commissioner and rejected the
remaining two applications under 151 filed by the original plaintiff and by the
substituted plaintiff for restoration of possession .The said order has given rise
to 4 revisional applications which are as follows; CO 1616 OF 2022, CO 2316
OF 2022, CO 1920 OF 2022 and CO 1921 OF 2022. This Court also after
hearing the matter analogously passed the order in the following manner.
C.O 1616 OF 2022
6. The challenge in the revisional application filed against the portion of the order
no. 5 dated June, 2022 passed by the learned 2nd Civil Judge (Senior Division)
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Barasat in Title Suit no. 669 of 2017 to the extent that the said order allowed
an application filed by the substituted plaintiff for local inspection under order
XXXIX Rule 7 of the Code of Civil Procedure, 1908. It is the contention of the
learned advocate representing the present petitioner/defendant of the suit that
in the schedule to the application for local inspection, the substituted plaintiff
being the opposite party herein, Dr Partha Sarathi Roy sought for the
commissioner to be appointed for noting of all points which were allowed by
the learned court and not sustainable on the ground as follows:-
I) The original plaintiff on the date of filing of the suit was not in actual
physical possession of any part or portion of the suit property and the
statement was made in various paragraphs of the plaint. She complained of
not getting access to the suit property on 26th April 2017, when she tried to
enter into the suit property. It is admitted that the second floor of the suit
property was let out by the present petitioner to a tenant. Therefore, it was
incumbent upon the original plaintiff to seek for restoration or recovery of
possession in the suit and in absence of such a prayer the suit itself is hit by
Section 34 of the Specific Relief Act, 1963.
II) It is argued on behalf of the petitioner that it is now settled that unless a
recovery of possession is prayed for admittedly is not in possession of the
property the suit itself is not maintainable and in this regard put reliance on
the decision of the Hon’ble Supreme Court of India in the case of Union of
India versus Ibrahim Uddin and Anr. reported in1. This proposition was
1
(2012) 8 SCC 148Page 6 of 33
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also held by the Supreme Court in its judgement reported in, Venkata Rajaand others versus Vidyane Doureradjaperumal2.
III). It is further the contention of the learned Counsel that on the date of filing
of the suit the plaintiff was not in possession of the suit property which can be
found from the general diaries lodged by the original plaintiff with the Bidhan
Nagar Police Station, which was submitted in the affidavit in opposition filed
by the present opposite party/plaintiff in this revisional application. Therefore,
apparently no relief of possession being sought either by the original plaintiff
or the substituted plaintiff hence the suit itself is not maintainable. Therefore,
as per settled law, when a final relief in the suit cannot be passed, no
interlocutory order can be made in favour of the plaintiff. Admittedly, the relief
of local inspection sought by the substituted plaintiff opposite party, herein is
an interlocutory relief, and the same cannot be granted since the final relief of
the suit itself is not maintainable. The learned court allowed the said
application whereby the local inspection on the points contended in the
schedule to the application which otherwise cannot be sustained were also
allowed.
IV). The fourth argument advanced is that a suit for permanent injunction by
one co-sharer against other co-sharer from exercising right over any part of the
property in joint possession without claiming partition is not maintainable. In
this regard, reliance was put in the judgement of T. Ramalingeswara Rao
(Dead) through Lrs and another versus N. Madhava Rao and others3, for
2
(2014) 14 SCC 502
3
(2019) 4 SCC 608Page 7 of 33
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relied upon Bachaspati Bhattacharya & Ors. Versus Smt. MeeraBhattacharjee & Ors4.
V). The further contention made before this court is that without prejudice to
the averment what it is contained that the application for local inspection filed
by the substituted plaintiff could not have been allowed as the same amounts
to nothing but a mere attempt to fish out evidence. An analysis of the points
on which the local inspection is sought would make it apparent that the real
purpose of the application is to ascertain the possession and occupation and
occupancy of the suit property as on the date of the filing of the application for
local inspection. The attempt of the substituted plaintiff is really to gain
information by way of holding the local inspection to be used in collateral
proceedings under Order XXXIX, Rule 2A filed by the substituted plaintiff
alleging violation of an order of injunction passed by the learned court below.
The application under Order XXXIX Rule 7 of the Code of Civil Procedure,
1908 cannot be used to fish out or collect evidence and support of the relief
claimed in the case. In this regard, Reliance is placed on the judgement of the
Hon’ble Supreme Court of India in the case of Padam Sen and Anr vs. State
of Uttar Pradesh reported in5 and The Institution of Engineers (India) &
Anr. Versus Bishnu pada Bag & Anr6.
7. Accordingly submitted that in view of the aforesaid circumstances , it is clear
that the portion of the order impugned by which the application filed by the
substitute plaintiff/opposite under Order XXXIX, Rule 7 Code of Civil
Procedure, 1908 as allowed should be set aside.
4
AIR 2019 SC 1777
5
AIR 1961 SC 218
6
AIR 1978 Calcutta 296
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8. Per Contra learned, advocate, representing the opposite party raised objection
and took the specific points as to why the prayer of the petitioner in this
revisional application should not be entertained The first point raised that the
joint possession of the property as mentioned in the plaint is also admitted by
the defendant/petitioner in her written statement and counterclaim. The
mother of the opposite party, original plaintiff filed an application under Order
XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure for
temporary injunction and the learned Court vide order dated 7.8.2017,
restrained the present petitioner in making or creating any disturbance in
peaceful possession of the suit property by the original plaintiff. The said entry
made was validated by the present petitioner for which a proceeding under
Order XXXIX, Rule 2A of the Civil Procedure Code is pending, and the
petitioner also filed an application under Order XXXIX, Rule 4 of the Civil
Procedure Code. Upon contested hearing of the injunction application and
petition filed under XXXIX, Rule 4 of CPC, the learned Court vide order dated
15th March, 2018 directed both the parties to maintain status quo as regards,
nature, character and possession in respect of the suit property, as on the date
till the disposal of the suit. The said proceeding was never challenged by the
petitioner and it attains finality. After that petition was filed with the petitioner
under Section 151 on 3.4.2018 for certain directions and to remove her
belongings in the suit property and this itself, proves that the petitioner/sister
was not in possession of the suit property, and this petition was allowed by
the order dated 28.6.2018, which was subsequently set aside by the High
Court in CO no. 2204 of 2018.
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9. During the interregnum period, the petitioner illegally and unauthorisedly
possessed the suit property without giving any undertaking so directed by the
learned court. After the petitioner let out the entire ground floor for commercial
purpose for which several directions passed by the court to stop such
commercial activities. In order to assess the damage caused by the petitioner
in the suit property and the present possession of the suit property, the local
inspection is required under Order XXXIX Rule 7 of the civil procedure court,
and hence no interference is required in respect of the order passed by the
learned court whereby the petition is allowed. The learned advocate relied
upon the decision reported in Padam Sen and anr. versus State of Uttar
Pradesh7. Allahabad Bank versus Sourendranath Shaw & Anr8. Nitindra
Nath Roy Chowdhury & Ors versus Subhash Chandra Kar9.
10. Heard the rival contentions of both the learned advocates. The materials
placed on record and the pleadings made by the parties prior to his demise, Dr
Dwijendra Kumar Ray executed a Will on 7.9.2016, bequeathing his undivided
50% share in the suit property in favour of his only daughter that is the
petitioner herein ,now pending for grant of probate being contested by the
present opposite party/brother.
11. The record further disclose that Dr Urmila Ray also executed a will on the
same date bequeathing her 50% share in the same property in favour of the
present petitioner, but later on, she revoked her will executed on 7.9.2016 and
further executed a will and a codicil whereby she bequeathed her 50% in
favour of the present opposite party. The probate proceeding in connection
7
AIR 1961 SC 218
8
AIR 1997 Cal 80
9
AIR 1981 Cal 319
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with that will is also pending before the concerned court. Dr Urmila Roy during
her lifetime filed the suit against her daughter and the son was made as pro
forma defendant. During her lifetime, she also prayed for an injunction order,
which was initially granted directing the parties to maintain status quo in
respect of nature, character, as well as possession of the suit property. The
order was subsequently modified in terms of the prayer made by the present
petitioner and taking the assistance of the police officers of Bidhannagar North
took possession of certain portion of the premises, was challenged before the
High Court and the said order was set aside. The mother filed an application
under section 151 of CPC for restoration of possession of certain portion of the
premises and taking advantage of the judicial order, the petitioner, admittedly
took possession of certain portion of the suit property and in terms of the
subsequent order of the learned coordinate bench, that initial order lost its
force. The mother expired on 6.10.2018 and she lodged several complaints
over some illegal construction raised by the present petitioner during her
lifetime. The present opposite party and his family members admittedly are
resident of United Kingdom but claimed that whenever they visit Kolkata, they
used to stay in the suit property. The opposite party, after demise of his
mother being appointed as an executor to the will of his mother filed
application to be transposed as plaintiff. The prayer was allowed and affirmed
by this court on challenge . The opposite party in the capacity of an executor
also filed an application under Order 39 Rule 7 of Code of Civil procedure for
inspection of the portion which has been retained by the present petitioner , in
order to ascertain the damage caused by her in the property. The brother
/opposite party herein in the writ petition prayed for a direction commanding
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the police authorities to enquire, investigate and register cases based upon the
complaints lodged by him, as well as his mother on several occasions and no
action was taken over the same. The application filed under Order XXXIX, Rule
7 CPC was made for appointing advocate commissioner and the schedule
points for local inspection were as follows;
i) to go to the premises number DB1, sector-I, Salt
Lake city, Kolkata 700064, being the suit property
within the jurisdiction of Police Station, Bidhan
Nagar(north) and ascertain as to whether the portion
of the such property in map annexed to the petition is
kept under lock and key, and if so, to direct the
learned commissioner to see the locks and keep the
same as such.
(ii) if it is found that those portions are not under lock
and key, then to note how those portions are being
used and what are the articles in the said portion and
take note of those articles.
iii)To ascertain in the mode of user of the ground floor,
of the suit property from a part of each, the plaintiff
has been dispossessed by the present petitioner on
10th July 2018, with the police assistance for which
application for restoration of possession is pending.
iv)To note all other local features, as would be pointed
out by the parties in the locale.
12. The judgement relied upon in this regard in Union of India versus Ibrahim
Uddin and another (Supra) it was held that section 34 of Specific Relief Act,
1963 provides that courts have the discretion as to declaration of status or
right, however, it carves out an exception that a court shall not make any such
declaration of status or right where the complainant, being able to seek further
relief than mere declaration of title, omits to do so. The Hon’ble Supreme
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Court took note of Ram Saran versus Ganga Devi10 where it was held
categorically that the suit seeking for declaration of title of ownership, but
where possession is not sought is hit by the Proviso of Section 34 of the
Specific Relief Act 1963, and thus, not maintainable.
13. In Vinay Krishna versus Keshav Chandra11, the Hon’ble Apex court dealt
with a similar issue where the plaintiff was not in exclusive possession of
property and had filed a suit seeking declaration of title of ownership. Similar
view has been reiterated observing that the suit was not maintainable, if
barred by the proviso to section 34 of the Specific Relief Act. Accordingly held
that in view of the above, the law becomes crystal clear that it is not
permissible to claim the relief of declaration without seeking consequential
relief.
14. In the decision of Venkataraja and others (Supra) this principal was
reiterated in para 24 that “a mere declaratory decree remains non-executable in
most cases generally. However, there is no prohibition upon a party from
seeking and amendment in the plaint to include the unsought relief, provided
that it is saved by limitation. However, it is obligatory on the part of the
defendant to raise the issue at an earliest”.
15. All the above cases cited by the parties relates to declaratory suits not by a
person transposed as plaintiff in the capacity of an executor. In terms of
section 211 of the Indian Succession Act after demise of the testator the entire
property in the will vests upon the executor and he is given ample power to
protect the property like the owner till the probate is obtained and the
10
(1973) 2 SCC 60
11
AIR 1993 SC 957
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property is administered to the legatee .In addition the instant suit property is
a joint property and the parents of the parties were joint owners and so long
the probate of the wills executed by the parents are made, the status of parties
being the only legal heirs of their parents are co-sharer of the entire property.
The original plaintiff filed the suit for declaration when she had the 50%
ownership and also entitled to have her 1/3rd share in respect of 50% of her
husband’s share and hence was a co sharer.
16. It is settled proposition of law that in a joint and undivided property all the
co-owners have equal share in each part of the property .However no prayer for
restoration of possession was made under Section 144 Cr.P.C. Consequently,
the petition filed under section 151 cpc was not entertained for that relief.
17. In the case of Padam Sen and Anr vs State of Uttar Pradesh (supra) as
relied upon both the Learned Counsels,it was observed in para 13 that “Rule 7
of Order XXXIX empowers the court ,on an application of any party to a suit ,to
make an order for the detention, preservation or inspection of any property
which is the subject matter of the suit or as to which any question may arise
therein”. In that case the objection raised regarding the account Book which
was held to be not “property” which were the subject matter of suit nor such
that about them a question could rise in the suit.
18. In the instant case the original plaintiff prayed for a decree of declaration
declaring her joint ownership to the extent of ½ +1/3 in respect of the suit
property against her daughter who after demise of her father inherited her
undivided share in accordance with the rule of succession and became the
joint owners with her mother and brother and it is settled law that the co-
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sharer has right in each every part of the joint property until divided by metes
and bound.
19. The record further disclose that an order of injunction was passed on the
prayer made by the original owner/mother directing the parties to maintain
status quo with regard to the nature character and possession of the suit
property .This order was later on modified and it is the specific case of the
petitioner/sister that on the strength of a judicial order she was allowed to
take possession of certain portion of the suit property .That modified order
was later on set aside by the Learned Single Bench .Accordingly the petition
under section 151 CPC was filed during the life time of the mother to restore
such possession which was again filed by the brother later on after being
transposed as plaintiff .The Learned Court rejected both the applications
against which the brother has filed two revisional applications which have
been dealt with by this court hereinafter .
20. In the backdrop of the aforesaid factual matrix ,particularly in view of the
High court’s findings validating the allegations of unauthorized occupation
and construction ,the executor ,being a legal obligation to preserve and protect
the estate of the testatrix ,is entitled to seek the appointment of an advocate
commissioner to inspect the property ,ascertain the nature and extent of the
damage caused by the sister and report on whether physical possession of
any portion of the property has been parted with or not. These facts
unequivocally manifest that even if the argument of the Learned Counsel for
the respondent herein is accepted that a suit for declaration without praying
for recovery of possession is not maintainable, will not be an issue at this stage
in the instant case . But the Learned trial court refused the prayer on the
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ground that it cannot be ascertained as to the status of the position when the
order of statusquo was passed. This court though is unable to accept such
ground for refusal in view of the aforesaid discussion.
21. Accordingly the instant revisional application filed by the sister Dr.
Rajyashree Ray Bandyopadhyay being CO 1616 OF 2022 is dismissed .The
order passed by the Learned trial court allowing the application for appointing
advocate commissioner stands affirmed .
C.O 1920 OF 2022 /C.O 1921 of 2022
22. The above revisional applications were filed by the brother Dr. Partha Sarathi
Roy against the portion of the order dismissing the applications filed by both
the original plaintiff and the transposed plaintiff under Section 151 of CPC,
refusing the prayer for restoration of possession.
23. The learned advocate appearing for the petitioner submitted, during her
lifetime, the mother had lodged several complaints against her daughter/
respondent but police authorities failed to take appropriate steps to investigate
or pursue the complaints. A Writ petition had to be filed alleging inaction on
the part of the police authorities, as well as against the Bidhannagar Municipal
Corporation in respect of an alleged illegal construction raised at the suit
premises by the sister in collusion with a local Developer.
24. By virtue of order dated 21.2.2022 and 12.5.2022, the Learned court
directed the Municipal Corporation to conduct inspection of the same and to
take consequential steps. In course of hearing as called for she admitted of
making numerous alternations beyond the scope of sanctioned plan and she
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was directed to demolish the illegal unauthorised construction within a period
of two weeks and to stop all sorts of commercial activities from the said
premises. It is the specific contention that taking advantage of the order
passed in the suit, giving access to the respondent on 28.6.2018 the
respondent did all sorts of misdeed however the said order was set aside by
the High Court holding that restoration of possession always has to be
tangible physical possession and there cannot be any restoration of notional
or joint possession of the parties. But the legal possession of the mother was
taken by the respondent with the help of the police during the interregnum
period and for that reason, the application under 151 of the Code of Civil
Procedure was filed by her and after death of the mother, the petitioner being
transposed as plaintiff prayed for restoration of possession.
25. It is the further contention of the Learned Advocate that in legal terms
restitution is used in three senses. i) returned, and restoration of some specific
thing ii) compensation for such wrong doing iii) compensation for benefits
derived from such wrongdoing. It is also salutary principal that restitution is
based on the legal maxim ‘actus curiae neminem gravabit’ means that an act
of court shall prejudice no man. This principal is recognised under Section 144
of the Code of Civil Procedure and the court can apply the same under Section
151 of the Code.
26. It is further contended that the mother of the petitioner was all along in
possession of the suit property till it was taken by the order of the learned
court, which was subsequently set aside and the same can be maintained by
the petitioner after his transposition as plaintiff in the suit. Therefore, it was
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the bounden duty of the learned court below to restore the possession of the
suit property as it was there before illegally taken by the opposite party. In this
regard relied upon the decision reported in Shibesh Paul Steel Authority of
India Ltd. and other12. Another decision reported in, The State of West
Bengal versus M/s Bansilal Leisure Parks Limited and Anr13.
27. It is the specific contention of the learned advocate that the interim order
was violated for which petition had been filed by the original plaintiff under
Order XXXIX Rule 2A of the Civil Procedure Code. After contested hearing of
the injunction application and the Order XXXIX, Rule 4 of the Civil Procedure
Code, the learned court vide order dated 15th March 2018 directed both the
parties to maintain status quo as regard, nature, character, and possession in
respect of the suit property and such order has never challenged by the
present opposite party and it attains finality. After that the application under
Section 151 of CPC was filed to enable her to remove her belongings and filing
of such petition clearly proves that the respondent was not in possession of the
property. The defendant respondent let out the entire ground floor for which
several directions passed by this court to stop such commercial activities and
hence the petition had to be filed for restoration possession as it was at the
time of filing of the suit and the learned court ought to have considered the
entire circumstances without refusing such prayer mechanically, and without
exercising judicious mind. The petitioner further relies on the decision
reported in (Meera Chauhan versus Harsh Bishnoi and another14, (Sujit
12
(2010) 3 CHN Cal 582
13
(2019) 4 CHN Cal 582
14
(2007) 12 SCC 201
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Pal versus Praveen Kumar Sun and others15. Accordingly, prays for such
order.
28. Per contra the learned advocate representing the opposite party argued that
the original plaintiff prayed for restoration of possession from the portion of
the suit premises from which she had allegedly been dispossessed in terms of
the order dated 28th June 2018. It is settled now that when specific remedy
available under another provision of code and the original order passed on 15th
March 2018 gets modified by directing the plaintiff and the defendant no. 1 to
maintain status quo as regard nature and character and possession in respect
of the property as on 15th March 2018, till disposal of the suit. On 28th June,
2018, the inspector in-charge was directed to remove the padlocks of various
portions of the property as specified therein and pursuant to the judicial order
such order was implemented on 10th July 2018. By the order passed by the
High Court in C.O. no. 2204 of 2018, the said order was set aside, and after
that, the plaintiff applied for restoration of possession as on the date of her
dispossession pursued to the order dated 27th June, 2018 passed in the said
suit. Therefore, the proper remedy for the original plaintiff in the instant case
would have been to file an application under Section 144 of Code of Civil
Procedure, 1908 which provides mechanism for restitution in case of alteration
of a status in terms of an order passed by the Hon’ble Court, which were
subsequently set aside, modified or varied. Therefore, the application under
Section 151 of the Code of Civil Procedure, 1908 is not maintainable.
15
AIR 1986 Cal 220
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29. It is further argued that the admitted position is that the original plaintiff has
since departed her life as on the date then the order impugned in the present
civil revisional application was being passed, and such substituted plaintiff
who claims to be an executor of an alleged will cannot seek to pursue the said
application. Reliance placed by the learned counsel appearing on behalf of the
petitioner on the provision of Order 2 Rule 5 of the Code of Civil Procedure,
1908 is completely misconceived, which has no manner of application to the
present suit.
30. The learned counsel distinguished the judgement relied upon by the
petitioner as the petitioner sought for that it was open to the original plaint to
seek relief under Section 151 of the Code of Civil Procedure, 1908 since it was
possible for a temporary mandatory injunction being passed on an application
under Section 151 thereof while there is no quarrel with the proposition that
an order of temporary mandatory injunction can be made under Section 151 of
the Code of Civil Procedure, 1908. Neither of the cases cited are concerned
with the situation where the fact similar to those as of the instant suit. Both
the judgements relied upon on behalf of the petitioner relates to a situation
where the defendant dispossessed the plaintiff in spite of a subsisting order of
injunction restraining the defendant from doing so. Neither the judgement
aforesaid contemplate a situation where the alleged dispossession was
pursuant to implementation of an order of court. It is further submitted by the
learned counsel that the argument advanced on behalf of the petitioner that
implementation of the order dated 27th June, 2018 by the inspector in charge
of Bidhannagar Police Station on 10th July 2018, amount to violation of the
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order dated 15th March 2018 is thoroughly misconceived, and hence the
instant revisional application deserves to be dismissed with cost.
31. Heard the rival contentions of both the learned counsels. On perusal of
materials on record as well as considering the submission advanced the facts
which are found to be admitted that the suit premises jointly owned by the
parents of the present parties of this revisional application and both of them
executed respective Wills bequeathing their 50% share to the petitioner and
the respondent, who are the brother and sister, respectively. The learned trial
court considering both the injunction application passed the order on 15.3.
2018, directed both the parties to maintain status quo as regard the
possession of property. Fact remains such order was modified by the
subsequent order directing the Bidhannagar PS to remove the pad lock of AC
bedroom, personal study room, computer room, children’s room and the
kitchen on the second floor and allowed the defendant/daughter to take all her
belongings there from and allowed the defendant no 1 to occupy with all her
belongings in only two bedrooms, which will be small in size compared to the
kitchen in the second floor of the suit flat.
32. The Learned Court further directed that in the event the defendant already
enjoying such two bedrooms, she will not get any other bedrooms that is to say
in total the defendant no. 1/present respondent can enjoy two small
bedrooms, two toilets and bathroom and one small living room and the kitchen
in the second floor of the suit flat. Direction was also given to the police station
to remove the padlock of the said chamber in the ground floor of the flat and
allowed the respondent to occupy the same and to see that public peace and
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tranquillity can be maintained. The remaining rooms in the second floor of the
suit to be under lock and key as it was for the purpose of using by the plaintiff
or the former defendant and the IC Bidhannagar was directed to handover
keys to the plaintiff. Further direction given to the defendant no. 1 to file a
written undertaking supported with an affidavit that she will not claim any
equity in her favour in future in claiming exclusive or settled possession in
respect of the rooms arranged by this order. This order was implemented by
the police on 10 July 2018.
33. The said order was set aside vide order dated 27.07.2018 with the
observation that when restoration of possession is concerned, it is always to be
tangible physical possession and there cannot be any restoration of notional or
joint possession of the parties. During this entire period that is from the order
of status quo passed by the learned trial court on 15. 3. 2018 till July 27,
2018.
34. Therefore, it is apparent that the police implemented the order on 10th July
2018 after the order passed by the learned trial court to maintain status quo
was modified on 28.6.2018, by giving specific direction to the Bidhan Nagar
police to open the pad lock. That order was set aside on 27.7.2018 after
implementation of the previous order handing over the possession over to the
present respondent. The judgement relied on by the petitioner in Meera
Chauhan (Supra) ,an application for injunction restraining the respondent no.
2 from transferring, eliminating or encumbering was filed and an ex parte
interim order of injunction was passed, but the order of interim injunction was
granted against the respondent no. 2 from interfering with possession of
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respondent no. 1 in respect of the suit property. When the interim order of
injunction was in force, the applicant purchased the property from respondent
no. 2, and she was put into possession on the same date. Petition was filed
against said police authorities claiming for dispossession during his absence.
Praying for restoration of possession by respondent no. 1, a suit under section
6 of Specific Relief Act was filed before the Civil Judge for restoration of
possession and an application to that extent was filed by him under Section
151 of Code of Civil Procedure on the allegation that he was dispossessed from
the suit property during the pendency of the suit when interim order of
injunction was in force. The Hon’ble Supreme Court observed that the
question of possession at the relevant point of time, it would be appropriate to
note that the order for restoration was passed by the trial court on an
application under Section 151 of the Code of Civil Procedure. A question may
arise whether such an application can be entertained by the court when
specific provision under Order 39 of the Code of Civil Procedure has been
made for grant of injunction in the form of mandatory order in exercise of
power under the said order. It was held-
“15. on a bare perusal of Section 151 CPC it cannot
be said to be in dispute that Section 151 confers wide
powers on the court to make such orders as maybe
necessary for the ends of justice or to prevent abuse
of the process of the court.
16. The power of section 151 to pass order of
injunction in the form of restoration of possession of
the court is no more res integra now”
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17. In Manohar Lal Chopra versus Rai Bahadur
Rao Raja Seth Hiralal AIR 1962 Supreme Court
527 while dealing with the power of the court to pass
orders for the ends of justice or to prevent the abuse
of the process of the court, the Court held that the
courts have an inherent jurisdiction to issue
temporary order of injunction in the circumstances
which are not covered under the provisions of order
39 of the Code of Civil Procedure.”
35. In the case of Sujit Pal (Supra) the opposite party made an application for
temporary injunction, and the learned Judge passed an order of interim
injunction, restraining the defendant from interfering with the possession of
the Opposite Party of the said room, despite such injunction, the defendants in
violation of the said order of injunction forcibly dispossessed the opposite party
from the suit premises. An application under Order XXXIX Rule 2A CPC and
under Section 151 of CPC was filed praying for mandatory injunction,
restoring the possession of the opposite party of the said room with police help
and such application was allowed directing restoration of possession of the
room in the said premises with police help.. Being aggrieved by the impugned
order, the petitioner preferred an appeal and filed the present application for
an interim order of stay of operation of the said order. Argument was advanced
on behalf of the petitioner challenging the jurisdiction of the learned judge to
entertain an application under Section 151 of Civil Procedure Code for a
temporary mandatory injunction for the restoration of possession to the
opposite party of the said room. It was submitted by the learned advocate that
there is express provision under Order XXXIX Rule 2A for a remedy for the
violation of a temporary or interim injunction and court has no power to grant
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a temporary mandatory injunction in exercise of its inherent power. It was
contented that the provision of order XXXIX Rule 2A is a provision for
execution of an order for a temporary injunction, and that in case of
disobedience of a temporary or interim injunction the only remedy of the
aggrieved party is to avail himself of that provision. The Supreme Court took
note of Manoharlal versus Seth Hiralal16 and held that- “the inherent power
of the court as recognised under section 151 of the court is in addition to the
power conferred on the court, under the provision of the code. All that the court is
concerned is to prevent abuse of the process of court and to do justice by
immediately intervening under circumstances, which require such intervention
by the court”. It was held after taking note of Hari Nandan versus SN
Pandita17, where the Allahabad High Court took the same view that “when a
party has been dispossessed in disobedience of the order of injunction the court
can in exercise of its inherent power pass such order for ends of Justice as
would undo the wrong done to the aggrieved party.”
36. In the present case, the question boils up as to whether at all, there was
disobedience by the respondent in this case or not since the original order of
maintaining statusquo passed by the court was modified granting permission
to the police to remove the padlock and on the strength of a judicial order such
order was implemented by the police and the possession was handed over to
the respondent. The subsequent order of modification was set aside much after
the possession was given to the respondent by virtue of a judicial order and
therefore the above judgments are distinguishable factually and is not
16
AIR 1962 Supreme Court 527
17
AIR 1975 ALL 48
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applicable in the instant case, since there was no violation of order of
temporary injunction or interim injunction. In such circumstances when the
petitioner is claiming restoration of possession he ought to have come by filing
Section 144 of the Code of Civil Procedure which is as follows;
“144. Application for restitution
1) where, and in so far as a decree or an order is
varied or reversed in any Apple, revision or other
proceeding, or is set aside or modified in any suit
Institute for the purpose, the court, which passed the
decree or order shall, on the application of any party
entitled to any benefit by way of restitution or
otherwise, cause such restitution to be made as will,
so far as maybe, place the parties in the position
which they would have occupied, but for such degree
or order or such part there as has been varied,
reversed, set aside or modified and for this purpose,
the court may make any orders, including orders for
the refund of costs, and for the payment of interest,
damages, compensation, and mean profits, which are
properly consequential on such variation, reversal,
setting aside, or modification of the decree or order.
[Explanation.–For the purposes of sub-section (1), the
expression “Court which passed the decree or order”
shall be deemed to include,
(a) where the decree or order has been varied or
reversed in exercise of appellate or revision
jurisdiction, the Court of first instance;
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(b) where the decree or order has been set aside by a
separate suit, the court of first instance which passed
such decree or order.
(c) where the Court of first instance has ceased to
exist or has ceased to have jurisdiction to execute, it,
the Court which, if the suit wherein the decree or
order was passed were instituted at the time of
making the application for restitution under this
section, would have jurisdiction to try such suit.](2) No suit shall be instituted for the purpose of
obtaining any restitution or other relief which could be
obtained by application under sub-section (1).”
37. In the case of Vanshidhar Sharma versus state of Rajasthan and
others18, the doctrine of restitution under Section 144 and 151 and its
applicability was discussed. It was observed that-
“17. It clearly transpires that Section 144 CPC
applies to a situation wherein decree or order is
varied or reversed in appeal, revision, or any other
proceedings or is set aside or modified in any suit
instituted for the purpose. The principle of restitution
is that on the reversal of a decree, the law imposes an
obligation on the party to the suit to receive the
benefit of the decree to make restitution to the other
party for what he has lost. The obligation arises
automatically on the reversal or modification of the
decree and necessarily carries with it. The right to
restitution of all that has been done under the decree
which has been set aside or an order is varied or
reversed, and the court is making restitution is bound18
(2019) 19 ACC 701Page 27 of 33
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to restore the parties, so far as they can be restored to
the same position as they were in at the time when
the court by its action had displaced them.”
In the present fact and circumstances, she filed an application before the court
after the order of interim injunction was passed and the court after hearing the
parties passed the order which was implemented by the Bidhan Nagar Police
official. Therefore, by no stretch of imagination, it can be said that the order of
injunction was violated .If the subsequent order is construed as a modified
order pursuant to which possession was restored to the sister ,and thereafter,
upon the modified order being set aside the question of invoking the inherent
jurisdiction of the court under Section 151 of the code of civil procedure
does not arise .In such circumstances ,Section 151 CPC cannot be invoked to
seek restoration of possession .
38. The learned trial court after considering the submissions made by the
learned advocates of both sides and considering the materials and record was
also of the view that it has to be ascertained as to what the position was before
the police had acted as per order passed by the court, is not possible at this
stage accordingly rejected the said petition.
In view of the discussions as made the question of exact position while
passing of the interim order which was subsequently modified about the exact
position at the time of passing of the original order becomes secondary but
when it is evident that no order of interim injunction was violated and the
entire action was done on the strength of a judicial order which was set aside
after implementation of such order, it can be termed as violation of Court’s
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Order. Accordingly this court do not find any merit in the case for interference
as the restoration of possession in this case cannot be allowed by exercising
inherent power when alternative remedy is available.
39. In C.O 1921 of 2022 filed by the present petitioner/son was the pro forma
defendant in the suit filed by the mother and later on transposed as the
plaintiff in place of his .After being transposed, he filed the petition under
Section 151 of the Code of Civil Procedure with the further prayer directing the
opposite party to makeover possession of all the floors of the suit property
within a specific time limit and also to restore all household articles, furniture
fixture and fittings.
40. The Learned advocate appearing on his behalf tried to impress upon the
court that it is an equivocally established that the respondent behind the back
of the petitioner had entered into a development agreement with a developer,
namely Rajiv Rajan Kumar, who with active aid and advice of the respondent
dismantled the entire internal structure of the suit property and used the
same for commercial and business purpose without any sanction and
authority of the competent authority. At the instance of the petitioner by an
order dated 21.02.2022 in W.P.A no. 2090 of 2022 coordinate bench directed
Bidhan Nagar municipal Corporation to hear the parties to pass a reasoned
order and in pursuance to such order the Bidhannagar municipal Corporation
by an order dated 10.7.2023, directed demolition of the unauthorised
structure ,directed without any sanctioned building plan and contravention of
the provision of the West Bengal municipal Corporation act, 2006. An appeal
was preferred by the respondent before the Hon’ble Division Bench and
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whereby on 26.2.2024, the order of the learned Single Judge was affirmed.
Therefore, it is crystal clear that there was violation of the injunction order as
the respondent has changed the nature and character of the suit property
illegally and raised unauthorised construction in the suit property , and also
changed the nature of the building from residential to commercial without any
sanction or authority. Assuming the contention raised by him are correct but
for that reason a proceeding under Order XXXIX Rule 2A of CPC has been
initiated and these facts are not relevant to consider the subject matter of the
revisional application.
41. Similarly this court do not appreciate the submissions made by the Learned
Counsel of the Respondent regarding applicability of the provision of order 2
Rule 5 of the code of civil procedure, 1908 in the instant suit as the
transposed plaintiff is an executor to the will of his mother and is also a
legatee. It is specifically argued on her behalf that the proceeding filed under
section 151 of the code is not maintainable for having a relief of restoration of
possession but that can be claimed by taking appropriate recourse .It is
admitted that on the strength of a judicial order she was given possession of
certain portion and hence after such judicial order being set aside her
possession becomes questionable and the present plaintiff in the capacity of an
executor can very well maintain appropriate application for restoration of such
possession. However as discussed thoroughly in C.O no. 1920 of 2022 and
the same prayer being made this revisional application also cannot be allowed.
Accordingly this revisional application being CO 1921 OF 2022S stands
dismissed.
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C.O 2316 OF 2022
42. This revisional application is filed by Dr. Rajashree Roy Bandopadhyay
against her brother challenging the portion of the common judgement dated 1st
June, 2022 in T.S no. 669/2917 whereby an application under Order VI Rule
17 of CPC was allowed. It is the case of the petitioner that after demise of the
original plaintiff the present opposite party as an executor to the last will as
alleged of their mother Late Urmila Roy applied to be transposed as plaintiff
and the same was allowed which was challenged before this court by the
petitioner being perverse .After being transposed the opposite party filed this
application for amendment of the plaint which practically would change the
nature and character of the suit as he is now praying for declaration of his
right title and interest in respect of the suit property against the present
petitioner which is not sustainable in the eye of law .
43. The Learned Advocate appearing on behalf of the opposite party on the
contrary argued that the four points raised by filing such amendment
application are necessary for determining real controversy between the parties
and formal in nature and in no way will destroy the basic structure of the suit.
44. On perusal of the application filed under Order VI Rule 17 of the Code of
Civil Procedure, 1908 it appears that the proposed schedule of amendment
prayed for as follows;
“1. In para 4 of the plaint after the last sentence “On
death of Original plaintiff and before the order of
transposition, the transposed plaintiff duly applied for
probate of the Will which having been rendered
contentious now pends before learned 1st Court ofPage 31 of 33
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Additional District Judge at Barasat being numbered as
OS 44/2019″. This sentence be inserted
2. In para 8 of the plaint after the last word “earlier”,
“even through as per statement made earlier in para 4
of the plaint, the alleged will allegedly made by Dr.
Urmila Roy stood revoked followed by a holographic
Will”. Be inserted
3. In para 9 of the plant at page 8 in fourth line after the
word “absolutely” “and on the death of Dr. Urmila Roy
transposed plaintiff is entitled to ½ + 2/3rd of balance
half of the property total 5/6th share of the whole
property” be inserted.
4. In the prayer (a) second line “½+ 1/3rd” will be
deleted “5/6th share” will be inserted.
5. In the prayer (b) in fourth line after the words “suit
property by the” “transposed” be inserted, and in same
line after the word “Plaintiff” “and also proforma
defendant” be deleted.”
45. Therefore the above proposed amendment disclose that the opposite party
after being transposed as plaintiff has tried to amend the plaint by claiming
his own share inherited after demise of their mother in accordance with the
law of succession . The law in this regard is very clear that a transposed
plaintiff cannot exert any other point than what was claimed by the original
owner. The opposite party was not substituted in his place but transposed as
an executor and the entire suit property vests in him. He can take all such
steps to preserve and protect the interest of the original plaintiff but cannot
prayed anything in excess which would be beneficial for him in his personal
capacity though in this case the opposite party is the legatee himself. However
after the probate is granted the situation would be otherwise and the opposite
party will then be entitled to claim his own right title interest on the strength
of the probate if granted but till such time excepting the required amendment
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which is necessary after demise of the original plaintiff which are to be
amended . Accordingly the portion of the order allowing the amendment is
hereby set aside.
46. The opposite party is given liberty to take out an amendment application
afresh within a period of two weeks from this date and to serve the copy of the
same to the conducting Advocate of the petitioner and the Learned Court is
directed to dispose of such application at an earliest preferably within a period
of one month therefrom after giving opportunity to both the parties.
47. Accordingly this revisional application being C.O 2316 OF 2022 stands
disposed of with the above observations.
48. Urgent certified copy if applied by any of the parties to be supplied subject to
observance of all formalities.
(CHAITALI CHATTERJEE DAS, J.)
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