Biswajit Roy vs Gautam Barman & Ors.

Sabyasachi Bhattacharyya, J.:-

The present appeal has been preferred by the plaintiff in a suit for partition and for cancellation of a development agreement entered into between the defendants. By the impugned order, the temporary injunction application of the plaintiff/appellant, filed in the said suit, was dismissed, primarily on the ground that the plaintiff failed to prove his title and possession in respect of the suit property.

Learned counsel for the plaintiff/appellant submits that along with the plaint, an elaborate genealogical table was furnished by the plaintiff to substantiate the fact that one Jagabandhu Barman, who was at one point of time an owner of the suit property, had left behind on his demise several sons and daughters, including the predecessor-in-interest of the appellant (one of Jagabandhu’s daughters) and the other respondents.

However, the impugned development agreement was entered into by the defendant nos. 1 and 2 by altogether suppressing the existence of the said daughters of Jagabandhu, who were also co-sharers in the suit property, and by excluding them.

It is submitted that by dint of admission of the title of Jagabandhu in the written objection filed by the said defendants, implicitly the title of the present plaintiff and the other heirs of the daughters of Jagabandhu was also admitted. Thus, it is contended that the learned Trial Judge erred in law and in fact in refusing to grant injunction on the ground that the title of the plaintiff was not substantiated.

Per contra, learned counsel appearing for the respondent nos. 1 and 2 argues that in the written objection of the said respondents to the temporary injunction application filed in the trial court, it was categorically averred that certain Wills were executed at different points of time by different owners of the property and ultimately, by dint of such probated Wills, the property devolved upon the defendants/respondent nos.1 and 2, who, in turn, entered into a development agreement with strangers to the family, who are also parties to the suit.

Thus, even without going into the question as to whether the plaintiff and his predecessor-in-interest and some of the other respondents claiming through the daughters of Jagabandhu could otherwise have been co-owners, the said question loses relevance in view of the Wills executed in favour of the defendant nos. 1 and 2, whereby the entire property has been bequeathed to them.

Thus, since the probated Wills were produced in the trial court, which were taken note of in the impugned order, it is argued that the impugned order ought not to be interfered with.

Since arguable questions are involved, we admit the appeal for hearing on the grounds taken in the memorandum of appeal and take it up for hearing along with the application in view of the short questions involved.

From the impugned order, it transpires that the learned Trial Judge recorded that both parties had submitted “some documents” by way of firisti. However, none of the said documents were specifically adverted to, nor were their particulars recorded, in the impugned order.

Throughout the impugned order, which is cryptic in nature, we fail to find any reference to any particular document, including the probated Wills, copies of which were allegedly produced by the respondent nos.1 and 2 before the trial court.

Fact remains that in the absence of any reference to any Will, there is no specific denial to the assertion in the plaint and the injunction application that Jagabandhu Barman, through whom the respondent nos. 1 and 2 ultimately claim the property, had also left behind daughters through whom the other parties also claim their title to the property. The plaint and injunction application allegations as to Jagabandhu also having daughters, who were entirely excluded and omitted to be mentioned in the impugned development agreement, were not specifically denied in the written objection to the injunction application. The denials in that regard, at best, are evasive in nature. Hence, the very premise on which the impugned order was passed, that is, the plaintiff failed to show his title in respect of the property, was erroneous. Insofar as the possession is concerned, we do not find any specific prayer for injunction in respect of possession, thus rendering the said question rather irrelevant at this stage.

It is also argued before us by learned counsel for both parties that Commissioners were appointed on two occasions and two Commissioners’ report were filed in the trial court in respect of the suit property. However, we find from the second Commissioner’s report, which is later on point of time, that construction was apparently going on in the suit property at the time of inspection, although the earlier report reflects otherwise. Thus, the court has to proceed on the basis of the last available Commissioner’s report, construing that there was construction being made when the property was last inspected.

We must further note that the learned Advocate for the respondent nos. 1 and 2 submits at this juncture that the development agreement, which is one of the primary bones of contention in the suit, has since been cancelled by the respondent nos. 1 and 2.

We make it clear that all these questions will be kept open for the learned Trial Judge to consider at the time of re-hearing of the injunction application, which we direct hereinbelow.

Be that as it may, it appears that the learned Trial Judge erred in law and in fact and proceeded in a perverse manner to dismiss the injunction application on the footing that the title of the plaintiff was not established, by overlooking the virtual admission of the title of Jagabandhu, the common ancestor of the plaintiff/appellant and the respondent nos. 1 and 2, and without referring to any of the documents produced by either of the parties.

Accordingly, FMA 731 of 2026 is allowed on contest, thereby setting aside the impugned order, bearing Order No. 16 dated February 21, 2026 passed by the learned Civil Judge (Senior Division), Burdwan, District: Purba Bardhaman in Title Suit No. 136 of 2024, and restraining both parties and their men and agents by an order of injunction from selling, transferring, alienating and/or creating any third party interest in respect of the suit property and/or changing the nature and character of the suit property, as on this date, in any manner whatsoever till disposal of the temporary injunction application in the trial court.

We hereby remand the injunction application to the trial court for a fresh adjudication on merits in accordance with law, upon giving adequate opportunity to both parties of hearing as well as to produce further documents, if the parties so deem fit and proper.

It is expected that such exercise shall be concluded at the earliest, positively within four weeks from the date of communication of this order to the trial court.

CAN 1 of 2026 is also disposed of accordingly.

There will be no order as to costs.

Urgent photostat certified copies of this judgment and order, if applied for, be made available to the parties upon compliance with the requisite formalities.

I agree.