Bengal Greenfields LLP & Ors. vs Shri Asit Kumar Paul & Ors.

Sandip Kumar De, J.:

The present First Misc. Appeal arises out of an order being no.02 dated August 03, 2026, passed by Civil Judge, (Senior Division) Sealdah, District South-24-Parganas in Title Suit no.157 of 2026 whereby the learned trial judge passed an ad interim order directing both the plaintiffs and defendants to maintain status quo in respect of the nature, character and possession of the suit property as on the day of passing of the order till September 05, 2026 and the same has subsequently being extended which is the subject matter of the subsequent miscellaneous appeal. The plaint case of the plaintiffs in short is that premises no.86 Canal Circular Road, P.S Beliaghata, Kolkata 700010 was having an area of about 20 cottahs of land and the said land was sub-divided into five distinct and separate portions being 86, 86A, 86B, 86C and 86D Canal Circular Road. By virtue of the deed of conveyances both dated September 28, 1985, the plaintiffs purchased premises nos.86B and 86C, Canal Circular Road, P.S Beliaghata, Kolkata 700010 measuring about 4 cottahs and 8 chittaks and 4 cottahs 8 chittaks and 4 sq.ft respectively (‘the said premises’ in short). Premises no.86, Canal Circular Road having the parent premises number consisted of 2 cottahs and 4 chittacks of land which was purchased by one Sanjib Ghosh, the defendant no.5. On May 05, 2003 a purported premises no.86E Canal Circular Road was created in the municipal records of the Kolkata Municipal Corporation (‘KMC’ for short) with retrospective effect from April 01, 1999. It was shown that the defendant no.6 purchased the said premises no.86 E for a valuable consideration. Although, the deed is dated July 02, 2004, but the stamp of registration is dated March 01, 2019. A construction started taking place in the said purported premises no.86E between April-May, 2025 to October-November, 2025 at the instance of defendant no.1, being the respondent no.1 herein. The plaintiffs/respondent nos.1 and 2 in the present appeal then started finding out the real state of affairs and found that by a purported sale deed dated July 04, 2008 the defendant no.6 in the suit, i.e. the pro-forma respondent no.4 purportedly sold the said purported premises no.86E to one Bengal Greenfields Pvt. Ltd. entity that existed prior to the change to the present appellant no.1. Appellant nos.2 to 4 are the partners of the present appellant no.1 which is a limited liability partnership.

The plaintiffs further found that the defendants in the suit committed fraud and by perpetrating fraud, by a Deed of Boundary Declaration dated December 22, 2017 the area of the purported premises no.86E was declared as 4 cottahs 4 chittacks. Subsequently, by another declaration dated November 21, 2025, the said area of the premises no.86E was unilaterally enlarged to 11 cottahs, 10 chittacks and 32 sq. ft so as to cover almost the entire suit premises and part of adjoining premises no.85, Canal Circular Road, P.S Beliaghata, Kolkata 700010.

The fraud perpetrated by the defendants in the suit has been narrated in the plaint as under:

The plaintiffs/ respondent nos. 1 and 2 in the present appeal also came to know that the Special Officer (Building) of KMC passed order on January 27, 2006 allowing the unauthorized construction in respect of the construction work taken place at the suit premises to stand and the Mayor-in-Council has approved the said order on November 11, 2006.

In the circumstances the plaintiffs prayed for the following reliefs:

The plaintiffs/respondent nos. 1 and 2 also filed an application for injunction in the said suit and prayed for the following reliefs:

In support of the plaint case as well as the application for temporary injunction the plaintiffs/respondent nos. 1 and 2 submitted the documents and the list of documents relied upon by the plaintiffs at the time of moving the application for injunction are as follows:

Considering the case placed by the plaintiffs/respondent nos. 1 and 2 at the time of moving the application for ad interim application, the learned trial Judge, passed the order dated August 3, 2026 which is impugned herein in the present appeal.

It appears from the deeds of conveyances dated 28 September,1985 by which the plaintiffs became the owners of the premises nos.86B and 86C,Canal Circular Road that the area mentioned in those two deeds are 4 cottahs 8 chittacks and 4 cottahs 8 chitacks and 4 sq. ft. The said portions were carved out from premises no.86, Canal Circular Road. It further appears that by a deed of conveyance dated September 28,1985 Smt. Umarani Bose & Ors. sold 2 cottahs 4 chittacks of land from premises no.86, Canal Circular Road in favour of one Sanjib Ghosh. By a deed of sale dated January 19, 1986 Sanjib Ghosh sold the said portion of 2 cottahs 4 chittacks of land in favour of Smt. Gita Das. It further appears that by a deed of sale dated July 02, 2004 one Samarendranath Ghosh sold 4 cottahs 4 chittacks of land mentioned as premises no.86 E, Canal Circular Road in favour of one Srima Saha. By a deed of sale dated July 09, 2008 Smt. Srima Saha sold the said 4 cottahs 4 chittacks of land being premises no.86E, Canal Circular Road in favour of Bengal Greenfields Pvt. Ltd. The case of the plaintiffs is that the original premises no.86, Canal Circular Road having a total land area of 20 cottahs 4 chittacks 4 sq ft was sub-divided entirely by registered deeds out of which the plaintiffs purchased their respective portions by two of the said five deeds. It is the further plaint case that the sub-divided five plots were renumbered as 86, 86A, 86B, 86C and 86D. It is the further plaint case that premises no.86E was created sometimes in May 05, 2003 in the records of KMC with retrospective effect from April 01, 1999. Bengal Greenfields obtained a sanctioned building plan on July 14, 2018 in respect of premises no.86 E, Canal Circular Road.

By a Boundary Declaration required for the purpose of obtaining building plan to be sanctioned by the KMC, Bengal Greenfields Pvt. Ltd. executed a registered Boundary Declaration dated December 22, 2017 wherein area of 86E Canal Circular Road has been declared as 4 cottahs and 4 chittacks. Subsequently, Bengal Greenfields Pvt. Ltd. executed a deed of gift dated December 22, 2017 in favour of the KMC as a part of the formalities to obtain sanctioned building plan and by the said deed of gift, 415 sq. ft. strip of land was gifted to the KMC. Subsequently, another Boundary Declaration was executed by Bengal Greenfields Pvt. Ltd. registered on September 19, 2025 wherein the premises no.86E, Canal Circular Road has been shown to have area of 4 cottahs 4 chittacks of land. Thereafter another Boundary Declaration was registered on November 21, 2025 by Bengal Greenfields Pvt. Ltd. in respect of premises no.86E, Canal Circular Road for the purpose of obtaining sanctioned building plan wherein the area of land in premises no.86E, Canal Circular Road has been declared as 11 cottahs 10 chittacks 32 sq. ft.

It is the further plaint case that a building plan was sanctioned by the KMC and construction proceeded in deviation of the sanctioned building plan. The Special Officer (Building), KMC passed an order of retention of unauthorized construction and allowed change of user both on payment of fees by his order dated January 27, 2026 and the same was approved by Mayor-in-Council on February 11, 2026. Thereafter, Bengal Greenfields Pvt. Ltd. deposited a sum of Rs.41,96,608/- with the KMC for regularization of unauthorized construction.

The further plaint case is that the KMC has issued No Objection Certificate with regard to the payment of property tax on November 7, 2025 in respect of premises no.86E, Canal Circular Road having assesse no.110330300267 wherefrom it appears that a separate assesse no. was also created in favour of premises no.86E, Canal Circular Road.

The plaintiffs further stated that a ground+ 4 storied building was constructed at the said premises no.86E, Canal Circular Road by the appellants/defendant nos. 1 to 4 between April to November 2025. The plaintiffs lodged complaints with the authorities. The assessment book of the KMC for the year commencing from April, 2017 reveals that premises no.86 E, Canal Circular Road consisted of 4 cottahs 4 chittacks of land.

Therefore, the plaintiffs claim that the entire exercise of creation of premises no.86 E and the measurement of land area in the said purported premises no.86E, getting a building plan sanctioned and construction of G+4 storied structure in the said premises are all results of fraud. The defendant nos. 1 to 4/appellants have relied on the writ petition filed by the plaintiffs before a learned single Judge of this Court being WPA 19992 of 2026 and enclosed a copy of the writ petition in the application for stay. The defendant nos. 1 to 4 /appellants have also disclosed an order dated September 11, 2006 passed in the said writ petition by a learned single Judge of this Court directing consideration of the representation of the petitioners by the concerned authorities amongst other orders. However, since, the copy of the writ petition and the order was not before the learned trial Judge at the time of considering the application for injunction, we refrain from considering the same in the instant appeal at this stage.

Learned counsel for the defendants/appellants submitted that the order violates the proviso to Order XXXIX Rule 3 and ignores two of the three settled tests; the proviso to Order XXXIX Rule 3 CPC obliges the Court, where it proposes to grant an injunction without notice, to "record the reasons for its opinion that the object of granting the injunction would be defeated by delay" The words "considering the urgency of the matter" are a conclusion, not a reason. He cited the decision of the Hon’ble Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161 wherein the Hon’ble Supreme Court held that the requirement of recording reasons under the proviso is mandatory, that ex-parte injunctions are to be granted only in exceptional circumstances, and that even then the Court must be satisfied on prima facie case, balance of convenience and irreparable injury. The impugned order meets none of these requirements.

He then relied on the landmark decision of the Hon’ble Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das, (1994)4 SCC 225 (para 36) wherein the Supreme Court set out the factors governing ex-parte injunctions, including "the time at which the plaintiff first had notice of the act complained", "whether the plaintiff had acquiesced for some time", and that "the court would expect a party applying for ex-parte injunction to show utmost good faith". He submitted that each of these factors tells against the plaintiffs and none was considered.

He submitted that the only satisfaction recorded is a prima facie case "regarding their title". There is not a word on balance of convenience or irreparable injury. A prima facie case is necessary but not sufficient, all three conditions must coexist. In Dalpat Kumar v. Prahlad Singh, (1992)1 SCC 719, relied on by the learned counsel for the appellants, it was also emphasised that a "prima facie case" is not to be confused with prima facie title and in the decision of the Hon’ble Supreme Court in Best Sellers Retail (India)(P) Ltd. v. Aditya Birla Nuvo Ltd. (2012)6 SCC 792, it was held that even where a prima facie case exists, the Court should not grant an injunction unless the plaintiff would suffer irreparable injury and the balance of convenience lies in his favour.

The learned counsel for the appellants further submitted that the finding of a prima facie case is also founded in part on documents filed with a firisti at the hearing. Those documents form no part of the Application, have not been served on the appellants, and are not even identified in the order. Order XXXIX Rule 3(a) requires the plaintiff to deliver to the opposite party copies of the documents on which he relies. An ex parte finding resting on material the appellants have never seen cannot be sustained. Status quo has been directed without ascertaining what the status is; "suit property" is undefined.

He further submitted that the learned Court directed "both the plaintiffs and the defendants to maintain status quo as to possession” without recording who was in possession of what. On the plaint itself the plaintiffs are out of possession (a suit for recovery of khas possession; the premises "remained vacant" since purchase), and Appellant No.1 is in possession with a completed ground-plus-four superstructure. In Kishore Kumar Khaitan v. Praveen Kumar Singh (2006)3 SCC 312 (para 41), the Hon’ble Supreme Court held that simply directing the parties to maintain status quo, without indicating what the status quo was, is not an order that should be passed at the initial stage. This Hon'ble Court has repeatedly deprecated the same "shortcut" of granting status quo without determining the status of the parties. He further submitted that the expression "suit property” is not defined. It is unclear whether it means Schedules A and B (Premises Nos. 86B and 86C), Schedule C (Premises No. 86E, which the plaintiffs say does not exist at all) or all three; how much of the existing building it covers; and whether it bars finishing works, maintenance or dealing with units. Breach of an injunction carries consequences under Order XXXIX Rule 2A;, thus, an order so indeterminate cannot be allowed to operate.

He further submitted that there was no urgency: delay and acquiescence are evident on the plaintiffs' own pleading. On their own pleading, the plaintiffs knew of the construction in April/May 2025 and knew that a ground-plus-four superstructure stood erected by October/November 2025. They moved the application on 03.08.2026, about fifteen months after admitted knowledge and about nine months after the superstructure was complete. Their searches began only in May 2026. No explanation at all is offered for the period from April 2025 to May 2026. The plaintiffs became aware only upon searches, which statement is verified merely as a "submission". The urgency recorded in the impugned order was self-created. He further submitted that In Mandali Ranganna v T Ramachandra, (2008)11 SCC 1(para 18), the Supreme Court held: "Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively. ordinarily would not be entitled to an order of injunction." In the same decision the Court declined to stop constructions that had already come up, noting the substantial sums spent by the developer. The present case is stronger; the plaintiffs stood by while the building rose under a plan sanctioned in 2018.

The learned counsel for the appellants further submitted that the records now attacked have been in the public domain for years; the assessment of Premises No. 86E (2003), the registered deeds of 2004, 2008 and 2017, and the sanctioned plan of 2018. Further, T.S. No. 7 of 2011 concerning Premises No. 86B remained pending until it was withdrawn on 10.06.2026, and status quo orders had been passed in the suits among the plaintiffs’ own side, yet no step was taken in those proceedings while the construction was going on.

He then submitted that on the same day, i.e., on 03.08.2026, the plaintiffs invoked the writ jurisdiction of this Hon'ble Court by WPA No.19992 of 2026 in respect of the same premises, seeking cancellation of holding No. 86E (Assessee No.11-033-03-0026-7) and revocation of the sanctioned building plan and alleging that construction had commenced without a sanctioned plan. That allegation is itself irreconcilable with paragraph 39 of the plaint which admits the plan was sanctioned on 14.07.2018. Neither the plaint nor the Application discloses the writ petition. The writ petition was disposed of on 11.09.2026 with a direction upon the KMC to consider the plaintiffs’ representation, without deciding any question of title. A party seeking ex parte relief must show "utmost good faith” (Morgan Stanley, supra). One who suppresses material facts is not entitled to be heard on the merits of a discretionary relief; The pendency of parallel proceedings for overlapping relief against the very same holding and plan bore directly on urgency and on the equities, and its suppression alone warrants vacating the ex-parte order.

He next submitted that the "01.03.2019" allegation is false; the order rests on a page that is not part of the registered deed; the central plank of the fraud case is that the Sale Deed dated 02.07.2004 "bears the stamp of the Registrar dated 01.03.2019’. The page relied on by the plaintiffs, at page 340 of CAN 1 of 2026, is a back sheet that does not form part of the original instrument. The original deed is in the custody of Appellant No.1, and the endorsement shows that registration was completed on 07.12.2004 itself. The search result on the web portal of the Directorate of Registration and Stamp Revenue, Government of West Bengal is to the same effect. The appellants will produce the original for the Court's inspection if needed as and when called for. The plaintiffs claim that they have not seen the original. Paragraph 37 of the plaint only "craves leave to refer to the original and/or certified copy…” when produced and their case is no more than an inference that the deed was “brought into existence/publicly notified at a later point of time". A date on a copy obtained in or after 2019 can at most show when that copy or record was generated, it cannot displace a registration completed in 2004 itself. An interim order procured by placing such a page before the Court is vitiated; fraud "unravels everything", and a party who approaches the Court on a false or tampered document is not entitled to any relief (S.P. Chengalvaraya Naidu, supra).

The learned counsel for the appellants further submitted that the plaintiffs' title is not prima facie established. A preliminary decree in a partition suit only declares the shares of the parties; the division of the property by metes and bounds and the allotment of specific portions is the function of the final decree. The 1960 decree declared each Sarkar brother the owner of an undivided one third share. The plaintiffs' vendors (the daughters of Ganapati Sarkar) could convey the entirety of a specific 20-Cottah plot only if that plot had been allotted to them by a final allotment, and no final decree is pleaded or produced. Further the allotment in favour of the branch of Ganapati Sarkar, at pages 118 and 119. does not show the property in suit as part of the properties allotted. The heirs of Surendra Nath and Bidhubhushan Sarkar are not parties. The plaintiffs admit that Panchanan Nath Ghosh father of Samarendra Nath Ghosh (the vendor of 2004), was recorded as an occupier of a portion of the property under the Sarkar Brothers from 1969-70, that is, under all three co-sharers, years before the Supreme Court judgment of 1979 and the conveyances of 1985; and that the KMC Inspection Book for 1993-94 shows him in occupation of a 7 Cottah portion of Premises No. 86. The 2004 deed recites a settlement by all three brothers. If such a settlement preceded the 1985 conveyances, the daughters could not convey what had already been settled.

Whether the settlement was made is a question of evidence; it cannot be negatived ex-parte. The plaintiffs' argument that Defendant No. 5's own purchase in 1985 "destroys" the settlement is misconceived. Defendant No. 5 bought a different parcel (Residual Premises No. 86, 2 Cottahs 4 Chittacks) and resold it in 1986. A grandson's purchase of another plot cannot estop his father, a distinct person, from asserting title to the settled land. The plaintiffs' own documents are inconsistent. It would be found in Paragraph 22(a) that ascribes Deed No.13989 of 1985 to Premises No. 86A (conveyed to Kashi Nath Paul), and paragraph 22(b) ascribes Deed No. 13931 of 1985 to Premises No. 86B. yet paragraph 23 states that the original deed of Plaintiff No 1 for Premises No. 86B. "being Deed No. 13989 of 1985" is lost, the General Diary for which was lodged only on 08.05.2026, shortly before the suit. Paragraph 22(c) describes the deed for Premises No. 86C as Deed No. 1970 of 1986, although all five conveyances are pleaded as dated 28.09.1985. None of this was noticed by the Learned Trial Court.

He then submitted that the appellants' title rests on registered instruments and public records. Even on the plaintiffs' showing, the appellants' side rests on the municipal assessment of Premises No. 86E since 01.04.1999 (which Plaintiff claims emanates from order dated 05.05.2003); the registered Sale Deeds of 2004 and 2008; the registered deeds of 2017; the building plan sanctioned on 14.07.2018; and the order of the Special Officer (Building) dated 27.01.2026 approved by the Mayor-in-Council on 11.02.2026.There is a presumption that a registered document is validly executed, and the onus lies on the person who challenges it.

The Supreme Court has recently reiterated that "a registered Sale Deed carries with it a formidable presumption of validity and genuineness" which cannot be displaced by vague allegations; Hemalatha (D) by LRs v. Tukaram (D) by LRs,(2026)5 SCC 168 [Para 31]. Official acts such as the assessment, the sanction and the order of the Special Officer (Building) are presumed to have been regularly performed (Section 119, illustration (e), Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 114(e) of the Evidence Act, 1872). Fraud must be pleaded with full particulars and strictly proved. The allegations against the KMC officers and the registering authority are made without impleading either of them.

He then submitted that the identity of the property and the alleged encroachment are not pleaded. Schedules A and B adjoin each other. But Schedule C names neither Premises No. 86B nor 86C on any of its sides, and neither Schedule A nor Schedule B names Premises No. 86E on any side. Schedule C is bounded on the West by Dr. Suresh Chandra Banerjee Road and on the East by the Eastern Metropolitan Bypass, whereas Schedules A and B are bounded on the West by a KMC Road. On the plaintiffs' own descriptions, Schedule C is a different parcel. The topographical sketch attached to CAN 1 of 2026 [Annexure E Copy of the Plan showing Topography all the suit properties in Page 641 Volume V] shows Premises No. 86 lying between Premises No. 86C and Premises No. 86E.The plaintiffs say Appellant No. 1 occupies "portions" of the Suit Premises, but never identify which portion, its area or its location. No plan, survey report or local inspection was sought. On their own case the sanctioned plan is confined to 4 Cottahs 4 Chittacks, while the Suit Premises measure 9 Cottahs 4 Sq.ft., so the building could at best stand on a part of them. Yet the restraint covers the whole of Schedules A,B and C. The plaintiffs also allege trespass on 2 Cottahs 13 Chittacks 14 Sq.ft. of Premises No. 85, in which they claim no title; its owners are not parties. The Deeds of Declaration of 19.09.2025 and 21.11.2025 do not help the plaintiffs. On their own case the superstructure was complete by October/November 2025 under the plan of 2018; a declaration of area is not a conveyance and confers no title, and it cannot support an inference that the building stands on Premises Nos. 86B and 86C.

The learned counsel for the appellants then submitted that the plaintiffs had no irreparable injury; the balance of convenience is with the appellants. He submitted that the plaintiffs themselves quantify their loss at Rs. 15,00,000/-per month by way of damages or mesne profits. Their loss, if any, therefore, is compensable in money. The premises have been vacant since purchase, and no present use by the plaintiffs is disturbed. The Court must weigh the need to protect the plaintiff against the injury to the defendant. On the other side, a ground plus-four building stands complete in structure under a sanctioned plan, and the KMC has allowed it to stand. Only internal and finishing works remain The appellants have invested substantial amount in the project. Freezing a completed structure indefinitely exposes it to deterioration and causes continuing loss which cannot be recompensed if the appellants succeed.The relief granted is in substance the final relief. The Application prays, in terms identical to prayer (f) of the plaint, for restraint against transfer, encumbrance and further construction. Interim relief which amounts to the final relief should be granted only in exceptional cases. Further, the questions of fraud and forgery are matters for trial upon evidence and could not have been assumed against the appellants at the ex parte stage.

Lastly, the learned counsel for the appellants submitted that without prejudice to their contentions, the appellants, through their designated partner, undertake that until the disposal of the application under Order XXXIX Rules 1 and 2 by the Learned Trial Court that: (a) they shall not transfer, alienate, encumber or create any third-party interest in the building or any unit in it; (b) they shall not make any structural addition or alteration beyond the sanctioned plan; (c) any work carried out shall be at their own risk, and they shall claim no equity on that account and (d) Only internal work to make the property habitable will be undertaken by the Defendants/ Appellants.

The appellants, accordingly, prayed that this Court may be pleased to:

The learned senior counsel for the plaintiffs/respondents submitted that the petitioners have miserably failed to demonstrate any error or perversity in the impugned order. A perusal of the impugned order would evince that the Ld. Trial Court has perused the Plaint and the documents filed therewith and has passed a reasoned order. It is settled law that an appellate court cannot reappraise material to reach a different view and to substitute the discretion exercised by the Ld. Trial Court. Pertinently, no interference is warranted if the interim order was reasonably possible. In support of the said proposition, the following decisions are relied on: Wander Limited v. Antox India (P) Limited, 1990 Supp SCC 727 (Para 13-14);Kishan Bhartia-Vs-Pawan Bhartia and Ors. 2025 SCC OnLine Cal 1954(Para 13).

It is next submitted that notwithstanding the above, it is submitted that the impugned order duly records that the contesting Respondents have satisfied the tripartite test for the grant of interim injunction. Thus, an examination of the impugned order against the record placed before the Ld. Trial Court would evince that the Contesting Respondents (i.e., the Plaintiffs before the Ld. Trial Court) had made out a prima facie case in their favour as well as demonstrate irreparable loss and balance of convenience as more particularly set out hereafter. In support of this proposition, a decision of the Hon’ble Supreme Court in the case of Gujarat Bottling Co. v. Coca Cola Co., (1995) 5 SCC 545(Para 43) is relied on.

The learned senior counsel for the respondents next submitted that it is an undisputed fact and a matter of public record that the entire land was originally owned by the heirs of Late Mr. Ganapati Sarkar. The Suit Property came into existence upon sub-division of the Entire Land by the heirs of Late Mr. Ganapati Sarkar into 5 parts viz. 86A, 86D, Residual 86 Property and the Suit Property (ie. 86B and 86C). No part / portion of the entire land remained unassessed by the Kolkata Municipal Corporation or even remained available for further sub-division. It is, therefore, submitted that subsequent assessment and creation of Premises No.86E out of the entire land is ex facie fictitious and the assessment was undertaken at the behest of defendant No.2 with a mala fide intent to encroach upon the Suit Property. The contesting Respondents purchased the Suit Property from the original owners ie the heirs of Late Mr. Ganapati Sarkar vide 2 separate Sale Deeds both dated 28.09.1985. Pertinently, the contesting Respondents' names were duly mutated into the municipal records with separate and distinct assessee numbers The contesting Respondents remain undisputed and unchallenged owners of the Suit Property till date. Contradistinguishing, 86E Property admeasuring 5 Cottahs and 2 Open Sheds first came into existence only on 05.05.2003 with retrospective effect from 01.04.1999 upon assessment by the Kolkata Municipal Corporation depicting Late Mr. Samarendra Nath Ghosh as the owner of 86E Property. Vide a wholly forged and fraudulent Sale Deed dated 02.07.2004, Late Mr. Samarendra Nath Ghosh purportedly sold 86E Property to R4, and subsequently, on 04.07 2008, R4 sold the 86E Property to P1 (@ Pg.342 / Vol.3, CAN 1) Thus, Pl derives its alleged title in 86E Property from Late Mr Samarendra Nath Ghosh.

He then submitted that a perusal of the public records discloses 2 facts viz..-

The learned senior counsel for the respondents next submitted that most importantly, this Hon'ble Court ought to appreciate that the Suit Property and the alleged 86E Property are not 2 separate distinct physical parcels of lands. 86E Property is a fictitious number created on the basis of wholly forged and fraudulent documents to encroach and subsume the entire Suit Property as well as part of the neighbouring land. Furthermore, the purported Sale Deed executed by Late Mr. Samarendra Nath Ghosh with R4 reeks of mala fides and is ex facie a sham and fraudulent transactions. Most importantly, the said Sale Deeds do not contain any covenant or assurance of the title by the seller. As a corollary, the buyer has assumed the entire risk of the title of the property which is unheard of in any real estate transaction. Moreover, while the said Sale Deed is executed on 02.07.2004, it is purportedly registered only on 01.03.2019. Notably, by this time, R4 had sold the purported 86E Property to P1.

It was further submitted that the alleged transactions undertaken by the Petitioners is an act of land grabbing and encroachment of the innocent citizens of this country. The entire transactions have the imprints of P2:

The learned senior counsel for the respondents next submitted that the Petitioners' fraud is ravelled by the palpable inconsistency in the area recorded in the public records as well as sought to be claimed by the Petitioners as part of the alleged 86E Property:

He further submitted that more significantly, the concurrent municipal file records disclose substantive violations of the Building Rules, including that against permissible ground coverage of 50%, the construction provides for ground coverage of 118.63%. The municipal record thus not only lends further support to the Contesting Respondents' case that the construction has proceeded upon a fundamentally disputed title, but also demonstrates that the construction cannot be permitted to create equities in favour of the Petitioners pending adjudication of the title and other rights in the Suit Property. Reliance is placed on a judgment delivered by a learned single Judge of this Hon'ble Court in Joy Prakash Law v. Rajendra Kumar Rathi (Judgment dated 11.02.2020 in G.A. No.1032 / 2019 in C.S. No.42 / 2018 @ Pg.9) wherein a learned Single Judge of this Hon'ble Court had, inter alia, held that where title deeds are under challenge and the plaintiff has shown prima facie case, alienation of the property must be stopped so that no third-party rights are created.

In the light of the foregoing, he submitted that the contesting Respondents had made out a prima facie case for the grant of ad-interim injunction. Thus, this Hon'ble Court ought not to interfere with the impugned Order passed by the Learned Trial Court. It was further submitted that they are the owners of the Suit Property and at all times remained in the possession of the Suit Property. While development was contemplated jointly on the Suit Property along with 86A and 86D, disputes arose between the parties therein and no development was undertaken. Accordingly, the Suit Property remained vacant between 1985 till 2025. Lack of development on a land ipso facto does not mean lack of possession of such land.

In these circumstances, it was submitted, the contesting Respondents discovered the encroachment of the Suit Property only in 2025 when the Petitioners commenced piling work on the Suit Property. The Contesting Respondents approached P3 for assistance in identifying the encroacher and to recover possession of the Suit Property. It was only when P3 failed to act despite assurances that the Contesting Respondents took upon themselves to conduct inquiry into the alleged construction activity on the Suit Property and the entire fraud perpetrated by the Petitioners was discovered.

He submitted that that they have taken prompt action against the Petitioners once the fraud was discovered. Apart from the Suit, the contesting Respondents have taken following actions against the Petitioners.

In fact, the Petitioners have, within a period of 1 year, constructed super-structure of Ground plus 4 storied building. Thus, there is imminent threat and genuine reasonable apprehension that the Petitioners may create third-party rights in the Suit Property. Pertinently, further construction on the Suit Property shall result in creation of further equities in the Suit Property when the underlying title of the Petitioners to the Suit Property let alone right to build is under cloud and is to be adjudicated by the Ld. Trial Court. Reliance has been placed on the decisions in Maharwal Khewaji Trust, Faridkot v. Baldev Dass, (2004) 8 SCC 488 (Para 10);Shyam Sunder Kayal v. Mist Valley Binimoy Pvt. Ltd., 2007 SCC OnLine Cal 273(Para 33-36).

The learned senior counsel for the respondents submitted that grave and irreparable harm and prejudice will be caused to them if the impugned Order is interfered with. The Petitioners suffers no irreparable harm or injury if the Impugned Order is upheld, but vacation and/or modification of the Impugned Order may render the Suit infructuous. Furthermore, the aforestated facts evince that the balance of conveniences lies in favour of the Contesting Respondents and against the Petitioners.In this regard, reliance has been placed on a decision of a Learned Singla Judge of this Court in Escon Consultant Private Limited v. Harun Al-Rashid, Judgment dated Judgement dated 04.09.2009 in C.O. No.1487/2009 (Pg.16).In light of all that has been stated hereinabove, he submitted that the Leaned Trial Court has rightly passed the Impugned Order and the same ought not to be interfered with. The present Appeal is wholly devoid of merits and ought to be dismissed by this Hon'ble Court with heavy costs.

Heard the learned counsel for the respective parties in extenso, considered the materials on record that formed the part of record before the Learned Trial Court at the time of passing the order impugned in the present appeal and the precedents cited by the respective parties.

Insofar the scope and ambit of the present appeal is concerned, we are bound by the propositions of law laid down by a coordinate Bench of this Court presided by one us (Sabyasachi Bhattacharyya,J.) in the case of Akshay Vinimay LLP vs. Neeraj Bajoria (FMA 250 of 2026) followed by another decision rendered in Narayana Hrudayalaya Limited Vs Dr. Sujoy Kumar & Anr. (FMAT no.345 of 2026). The ratio decided in those two cases, if summarized, is that the scope of an appeal against an ex parte ad interim injunction order is extremely limited, confined to the materials and pleadings which were before the Trial Court on the date of passing of the impugned order. There are three modes of challenge to such an order – an appeal, a vacating application under Order XXXIX Rule 4 of the Code and contesting the injunction application itself by filing a written objection thereto. Order XXXIX Rule 4 clearly encompasses a challenge on the ground that material facts were suppressed or that the order was obtained by misleading the Court. New documents, if produced by the defendants, can only be looked into upon those being brought on record before the Trial Court subsequently. At the ex parte ad interim stage, the court is only to look into the pleadings in the plaint and the injunction application and the documents filed in connection therewith or relied on therein. An appeal would be illusory to the extent that new facts are sought to be brought on record, since those were not before the Trial Court, and the Appellate Court is only to ascertain whether the learned Trial Judge was justified in passing the impugned order on the basis of the pleadings and materials before the said Court. Therefore, it was held that this Court, within the limited scope of the present appeal, cannot look into the new documents, sought to be relied on by the appellant. Thus, the coordinate Bench proceeded on the materials and pleadings which were before the Trial Court at the time of passing of the impugned order contesting the injunction application itself by filing a written objection thereto.

Order XXXIX Rule 4 clearly encompasses a challenge on the ground that material facts were suppressed or that the order was obtained by misleading the Court. New documents, if produced by the defendants, can only be looked into upon those being brought on record before the Trial Court subsequently. At the ex parte ad interim stage, the court is only to look into the pleadings in the plaint and the injunction application and the documents filed in connection therewith or relied on therein. An appeal would be illusory to the extent that new facts are sought to be brought on record, since those were not before the Trial Court, and the Appellate Court is only to ascertain whether the learned Trial Judge was justified in passing the impugned order on the basis of the pleadings and materials before the said Court. Hence, the coordinate Bench held, that this Court, within the limited scope of the present appeal, cannot look into the new documents sought to be relied on by the appellant. Thus, the coordinate Bench proceeded on the materials and pleadings which were before the Trial Court at the time of passing of the impugned order.

Therefore, respectfully agreeing with the ratio of the decisions rendered in Akshay Vinimay LLP(supra) ^{11.Akshay Vinimay LLP vs. Neeraj Bajoria (FMA 250 of 2026)} and Narayana Hrudayalaya Limited(supra )^{22.Narayana Hrudavalava Limited Vs Dr. Sujoy Kumar & Anr. (FMAT no.345 of 2026)} scope of consideration in the present appeal so far the materials on record are concerned is confined to the materials placed before the learned trial judge at the time of considering the application for injunction.

On a careful consideration of the materials on record, it reveals that the plaintiffs purchased A and B schedule property being premises no.86B and 86C, Canal Circular Road in 1985 and as per the plaint case, there was no premises called 86E, Canal Circular Road at any point of time. It is evident from the materials on record that a plot of land described as 86, Canal Circular Road was transferred from time to time from 1986 to 2008. Initially, the plot of land consisted of 2 cottats 4 chittacks of land but subsequently, in the deed of conveyance dated July 02, 2004 the plot of land was consisted of 4 cottahs 4 chittacks of land and described as 86E, Canal Circular Road. Subsequently, in the deed of conveyances dated July 09, 2008 the plot of land described as 86E, Canal Circular Road was described to be consisted of 4 cottahs 4 chittacks of land. The Boundary Declarations dated December 22, 2017 and September 19, 2025 also reveals that premises no.86E, Canal Circular Road consisted of 4 cottahs 4 chittacks of land but in the Boundary Declaration dated November 21, 2025 it was declared that premises no.86E consisted of 11 cottahs 10 chittacks of land. The plan was sanctioned by the KMC on 4 cottahs 4 chittacks of land. However, it appears from the records relating to the demolition proceeding before the KMC that although the plan was sanction in respect of 284.281 sq. mtr. i.e. 4 cottahs 4 chittacks of land, the Boundary Declaration disclosed 11 cottahs 10 chittacks of land. Thus, the allegation of fraud as canvassed in the plaint appears to be true at the prima facie stage.

Further careful consideration of the order impugned dated August 03, 2026 reveals that the learned trial Judge applied his mind carefully towards the problem and appreciated the entire conspectus of facts. The learned trial Judge rightly found that the plaintiffs have been able to make out a prima facie case in their favour with regard to the title in the suit property and as a result, considering the urgency of the matter, both the plaintiffs and defendants were directed to maintain status quo in respect of the nature, character and possession of the suit property as on the day of passing the order till September 05,2026 which was subsequently, extended and subsisting till date.

The sum and substance of the submissions advanced by the learned counsel for the appellants is that the plaint and injunction application were filed on the same day and the injunction application seeking ad-interim reliefs was moved on the same day. The plaintiff respondents could not place any case of urgency as it is the plaint case that the plaintiffs saw the constructions starting around April-May,2025 and by October-November,2025, a Ground plus four storied building was constructed. All steps including writing letters and making applications under Right to Information Act started during May-June, 2026, and as such the object of injunction is defeated by delay. The prima facie case should not have been equated with prima facie title and the balance of convenience was actually in favour of the defendants/appellants in as much as the construction was completed by the time the suit was filed. The appellants suffered and have been suffering pecuniary loss and facing damages as the impugned order has affected the construction raised by them. The plaintiffs/respondents did not disclose the facts relating to filing of the writ petition in the plaint and injunction application and as such those pleadings suffer from suppression of material fact. The title of the appellants in so far as the premises where the construction has been raised is concerned, is based on record and title deed. The plaintiffs/respondents did not properly describe the identity of the suit property in the schedules of the plaint and as such, the impugned order should not have been passed.

The principles of law laid down in the decisions of the Hon’ble Supreme Court in Shiv Kumar Chadha (supra) ^{33.Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161} , Morgan Stanley Mutual Fund (supra)^{44.Morgan Stanley Mutual Fund v. Kartick Das, (1994)4 SCC 225}, Dalpat Kumar (supra)^{55.Dalpat Kumar v. Prahlad Singh, (1992)1 SCC 719} and Best Sellers Retail (supra)^{66.Best Sellers Retail (India) (P) Ltd. v. Aditya Birla Nuvo Ltd. (2012)6 SCC 792} are well settled by this time with regard to the principles governing the grant of injunctions and the factors to be considered for such grant by the courts. However, in the present factual scenario, the said principles do not come in aid of the appellants in as much as the creation of premises no., creation of municipal records, obtaining sanctioned plan, raising construction in utter deviation of such plan and subsequent regularisation thereof, upon payment of penalty/regularisation fees create serious doubt with regard to the conduct of the appellants and such serious doubt gives rise to triable issues. As such, upon considering the presence of triable issues, passing of the impugned order by the Learned Trial Judge cannot be faulted. Going by the plaint case, the plaintiffs moved Court as soon as the aforesaid violations and fraudulent acts came to their notice, thereby exhibiting urgency. Furthermore, the entire gamut of arguments placed before us are open to the appellants to urge before the learned trial court at the time of contesting the application for injunction at the final hearing or by way of filing application for vacating, as declared by the coordinate Bench of this court in Akshat Vinimay(supra) ^{77.Akshay Vinimay LLP vs. Neeraj Bajoria (FMA 250 of 2026)} followed by Narayana Hrudayalaya(supra)^{88.Narayana Hrudavalava Limited Vs Dr. Sujoy Kumar & Anr. (FMAT no.345 of 2026)}.

The judgements cited by the appellants in the case of Kishore Kumar Khaitan (supra^{99.Kishore Kumar Khaitan v. Praveen Kumar Singh (2006)3 SCC 312} ), Mandali Ranganna (supra)^{1010.Mandali Ranganna v T Ramachandra, (2008)11 SCC 1} and Hemalatha (supra) ^{1111.Hemalatha (D) by LRs v. Tukaram (D) by LRs. (2026)5 SCC 168} are the decisions relating to grant of status quo in clear terms; delay in approaching courts and presumption of validity of registered sale deed. So far, the judgement relating to principles governing grant of status quo is concerned, the same cannot be looked into in the conspectus of the bundle of facts concerning the conduct of the appellants themselves as they themselves created doubts with regard to identity of the property. The delay in approaching the court by the plaintiffs/respondents and the presumption regarding the validity of the registered sale deed again lead to triable issues which would go against the defendants/appellants. The very nature of the allegations in the plaint is such that the defendants deliberately conflated the identity of different plots by enlarging the property on which construction was sought to be made beyond the lands purchased by defendants, by adopting the device of erroneous Boundary Declarations which deviated palpably from the title deeds of the defendants. Thus, there was no option for the learned trial Judge but to refer to the entire suit property as a whole in terms of the schedules of the plaint while granting the impugned injunction.

The concerns raised by the appellants before us with regard to the considerations of the Municipal records, annexures to the complaint, building plan and writ petition by this court in the instant appeal are not matters which can be conclusively decided at this stage as we have already discussed that the principles governing the consideration of ad-interim injunctions at the appellate stage would be in terms of the ratio laid down in Akshat Vinimay (supra)^{1212.Akshay Vinimay LLP vs. Neeraj Bajoria (FMA 250 of 2026)} and Narayana Hrudayalaya (supra)^{1313.Narayana Hrudavalava Limited Vs Dr. Sujoy Kumar & Anr. (FMAT no.345 of 2026)}. The issue relating to better title is also a triable issue.

Insofar as the undertakings sought to be given before this court by the appellants are concerned, it is observed that such undertakings to the effect that until the disposal of the application under Order XXXIX Rules 1 and 2 by the Learned Trial Court: (a) the appellants shall not transfer, alienate, encumber or create any third-party interest in the building or any unit in it; (b) the appellants shall not make any structural addition or alteration beyond the sanctioned plan; (c) any work carried out shall be at their own risk, and the appellants shall claim no equity on that account; and (d) Only internal work to make the property habitable will be undertaken by the Appellants, could be construed as partial admission to order of status quo passed by the learned Trial Judge in the order impugned. Undertakings(a) and (b) are clearly of such nature. Undertakings (c) and (d) make it further clear that the prejudice factor would not be such serious in case the application for temporary injunction is decided finally on contest by the Learned Trial Judge.

In so far the submissions of the learned senior counsel for the plaintiffs/respondents are concerned relating to the point of law that the appellate court cannot reach a different conclusion and substitute the discretion exercised by the trial court by reappraising the materials on record and the decisions in support thereof in Wander Limited (supra)^{1414.Wander Limited v. Antox India (P) Limited, 1990 Supp SCC 727} and Kishan Bhartiya (supra)^{1515.Kishan Bhartia-Vs-Pawan Bhartia and Ors. 2025 SCC OnLine Cal 1954}, we respectfully agree with the proposition of law laid down in those two decisions. We find substance in the contention of the plaintiffs/respondents with regard to the establishment of prima facie case, balance of convenience and the conduct of the defendants/appellants. The decisions cited in this regard in the cases of Gujarat Bottling Co. (supra)^{1616.Gujarat Bottling Co. v. Coca Cola Co., (1995) 5 SCC 545} and Smriti Debbarma (supra)^{1717.Smriti Debbarma v. Prabha Ranjan Debbarma, (2023) 19 SCC 782} are applicable to the context. So far the conduct of the defendants/appellants by creation of premises no, municipal record, sanctioned plan, raising construction in deviation of the sanctioned plan and regularisation thereof on payment of penalty by using undue influence are concerned, the contention of the defendants/respondents are correct as the same give rise to triable issues and justification in support of the impugned order. The decisions cited by the defendants/respondents in the case of Maharwal Khewaji Trust (supra) ^{1818.Maharwal Khewaji Trust, Faridkot v. Baldev Dass, (2004) 8 SCC 488} , Shyam Sundar Kayal (supra)^{1919.Shyam Sunder Kayal v. Mist Valley Binimoy Pvt. Ltd., 2007 SCC OnLine Cal 273} and Escon Consultant (supra)^{2020.Escon Consultant Private Limited v. Harun Al-Rashid, Judgment dated 04.09.2009 in C.O. No.1487/2009} are also applicable in the context.

In the circumstances, the learned trial Judge was justified in passing the order impugned in the present appeal and we do not find any reason to interfere with the said order. As such, the order impugned does not call for any interference and the same is upheld and affirmed.

Consequently, the appeal being FMAT 434 of 2026 is dismissed on contest.

Resultantly, CAN 1 of 2026 and the subsequent appeal being FMAT 435 of 2026 are also dismissed.

In view of the extensive argument being advanced before this court in the present appeals, the parties would be at liberty to take all the points and issues canvassed before us, at the time of hearing of the application for temporary injunction before the Learned Trial Court. The learned Trial Court is requested to consider all such points to be raised by the parties at that time independently and without being influenced by the observations made hereinabove as the above observations are all tentative and have been made for the purpose of adjudication of the appeals at this stage.

The learned trial Judge shall grant opportunity of hearing to the parties upon exchange of pleadings and conclude the hearing of the application for injunction and dispose of the same as expeditiously as possible. The learned trial Judge is requested to conclude the hearing and dispose of the application for temporary injunction preferably within a period of three months from the date of communication of this order.

No order as to costs.

Urgent Photostat certified copy of this order/judgment if applied for, be supplied to the parties upon compliance with all requisite formalities.