AD-4&5 Ct No.16 28.02.2025 TN CO No. 3718 of 2024 Dinesh Kumar Soni Vs. Santosh Singh and others with CO No. 3951 of 2024 Dinesh Kumar Soni Vs. Santosh Singh and others Mr. Kushal Chatterjee, Mr. Debrup Choudhury …. for the petitioner in both the matters Mr. Probal Mukherjee, Ld. Sr. Adv., Mr. Abhisek Verma, Mr. Atulya Sinha Verma, Mr. Avik Kr. Ghosh ….for the opposite party no.1 in CO 3718 of 2024 Mr. S. Sengupta, Mr. Abhishek Verma ….for the opposite party no.1 in CO 3951 of 2024 1. The two revisions, arising out of similar orders passed in connected appeals, are taken up for hearing together. 2. The brief facts of the case are that two suits were filed – one by the petitioner and the other by the opposite party no.1, respectively seeking declaration that the petitioner/plaintiff is the owner of one garage and one darwan’s room situated on the northern and southern side of the ground floor of 2 premises No.50/1C, Beharilal Ghosh Road, Kolkata – 700 057 and for permanent injunction restraining the defendant/opposite party no.1 from interfering with the peaceful possession of the plaintiff/petitioner in respect of such property and seeking declaration that the opposite party no.1 is the tenant in respect of the entire ground floor portion of the self-same premises and permanent injunction restraining the petitioner from disturbing the possession of the opposite party no.1 in respect thereof. 3. Whereas the suit of the petitioner was decreed, granting permanent injunction restraining the present opposite party no.1/defendant from interfering with the peaceful possession of the plaintiff in the suit property as mentioned in Title Suit No. 19 of 1997, in the same breath, the suit of the opposite party no.1 bearing Title Suit No. 71 of 1997 was dismissed, thereby refusing the prayer of the opposite party no.1 in respect of the entire ground floor of the self-same building. 4. Two appeals have been preferred against two decrees by the opposite party no.1. In one of the appeals, giving rise to CO No. 3718 of 2024, an application under Section 151 of the Code of Civil Procedure was filed for injunction directing the respondent/present petitioner to remove padlock from the main entrance of the godown and semi-finished toilet allegedly 3 occupied by the opposite party no.1 and not to obstruct the egress and ingress of the opposite party no.1 to the said godown from the main gate for business activities. 5. Another application was filed in connection with the other appeal, giving rise to CO No. 3951 of 2024, with the self-same prayer, but captioning the same under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. 6. Learned counsel for the petitioner argues that in the garb of the impugned orders, the injunction applications of the opposite party no.1 have been allowed, thereby directing the petitioner not to put any obstruction in the main gate by putting a padlock or by any other means to restrain the opposite party no.1 from enjoying his tenancy right in respect of the tenanted godown “as described in the schedule of the plaint in Title Suit No. 19 of 1997”. 7. Learned senior counsel appearing for the opposite party no.1 submits that the only way of ingress and egress of the vehicles to the godown of the opposite party no.1 is through the space claimed as garage by the petitioner. It is submitted that the godown is used for stacking and dealing with paper bales, for which transport vehicles are required to enter and go out of the said godown through the space claimed as a garage by the petitioner. 4 8. As such, it is submitted that in the garb of putting a padlock, the entire user of the godown by the opposite party no.1 is being restricted by the petitioner. 9. Upon a careful consideration of the materials on record, I find that as of today, a decree stands in favour of the petitioner/plaintiff in Title Suit No. 19 of 1997 whereby the defendant/opposite party no.1 has been restrained from interfering with the peaceful possession of the plaintiff/petitioner in respect of the suit property. The suit property in Title Suit No. 19 of 1997 is described as all that one garage and one darwan’s room situated on the northern and southern side of the ground floor of premises No.50/1C, Beharilal Ghosh Road, Kolkata – 700 057. 10. Although an appeal is pending against the said decree, till the appeal is allowed, if at all, the decree stares at the face of the opposite party no.1 and the appellate court, at this stage, would not be in a position to upset the said decree of the trial court until and unless the appeal is heard out finally. Therefore, I have to proceed on the premise that a decree of permanent injunction is being enjoyed at present by the present petitioner in respect of the garage and one darwan’s room. which are the subject-matter of Title Suit No. 19 of 1997. 5 11. It is also to be kept in mind that the opposite party no.1’s claim of tenancy in respect of the entire ground floor of the said property has been dismissed, against which an appeal is also pending. 12. The confusion was created in the mind of the appellate court inter alia due to the language of the injunction applications filed by the opposite party no.1 in both the appeals. Throughout the said applications, the consistent refrain is that the petitioner has put a padlock on the main entrance of the “godown” of the opposite party no.1. 13. It has not been alleged anywhere within the four corners of the said applications that the entrance to the godown is through the garage, which is the subject-matter of Title Suit No. 19 of 1997. 14. The learned appellate court below, while passing the orders impugned in both the revisional applications, was also confused on a further count. The respondent/present petitioner has been directed by the impugned order not to put any obstruction in the main gate by putting a padlock or by any other means to restrain the appellant/opposite party no.1 from enjoying their tenancy right in respect of the tenanted godown “as described in the schedule of the paint in T.S. 19 of 1997”. 15. However, the schedule of T.S. 19 of 1997 does not describe any godown at all but depicts the subject- matter of the said suit to be one garage and one 6 darwan’s room on the premises-in-question, regarding which at present there is a subsisting decree of permanent injunction restraining the opposite party no.1 from disturbing the petitioner’s possession. Hence, there could not be any occasion for the learned appellate court, by the impugned orders, to restrain the petitioner from putting a padlock to the garage which is the subject-matter of Title Suit No. 19 of 1997. 16. However, there is ambiguity in the impugned orders to the extent that the restraint order has been passed in respect of the main gate to the entire premises, pre-supposing that there is a separate main gate and there are different individual gates for the garage and the godown, which position, however, was not clarified by the opposite party no.1 by any local inspection in connection with the injunction applications before the appellate court. 17. Thus, the position remains that as of today, the petitioner is armed with a decree of permanent injunction whereby the opposite party no.1 is restrained from disturbing the possession of the petitioner in respect of the subject-matter of Title Suit No. 19 of 1997 which comprises of a garage and a darwan’s room. Hence, the second portion of the impugned orders is a misnomer, insofar as the subject-matter of the schedule of the plaint of Title Suit No. 19 of 1997 is not a godown but a garage and 7 a darwan’s room, regarding which the opposite party no.1 is at present suffering a permanent injunction order. However, the prior part of the impugned orders specifies that no obstruction shall be created on the main gate of the property. 18. Although this court, sitting under Article 227 of the Constitution, is not bent upon entering into a factual enquiry as to whether there is any existence of a separate main gate to the property, fact remains that the opposite party no.1 did not claim anywhere that the entrance to the godown is through the garage which is the subject-matter of Title Suit No. 19 of 1997, and as such, in the garb of the injunction order, a restraint order cannot be passed on the plaintiff/petitioner in respect of the exclusive user of the petitioner in respect of the garage and darwan’s room as depicted in the schedule of Title Suit No. 19 of 1997 and, if necessary, in his discretion, to put a padlock to the entrance of the said garage and darwan’s room. 19. However, since the impugned orders only stipulate that the petitioner shall not put an obstruction to the “main gate” of the premises, the same is not interfered with, with the rider, however, that the impugned orders shall not be construed as a fetter on the petitioner to put a padlock or lock the gates of the garage and darwan’s room which are the subject- matter of Title Suit No. 19 of 1997. 8 20. CO No. 3718 of 2024 and CO No. 3951 of 2024 are disposed of with the above observations. 21. The photographs handed over by learned senior counsel for the opposite party no.1 be kept on record. 22. There will be no order as to costs. 23. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. (Sabyasachi Bhattacharyya, J.)