In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side Present :- The Hon’ble Justice Sabyasachi Bhattacharyya and The Hon’ble Justice Supratim Bhattacharya Case No. FMA364 of 2026 with CAN 1 of 2026 In the matter of : SMT. SABITA AGARWALA & ORS. …Appellants VS. SRI SHYAM AGARWALA & ORS. …Respondents For the Appellants : Mr. Probal Kr. Mukherjee, Sr. Advocate Mr. ArijitBardhan Mr. Purbayan Chakraborty Mr. GourabMondal ….Advocates For the Respondent no.1 : Mr. S. Bhattacharya Mr. O. Chatterjee Mr. M. Masud ….Advocates For the Respondent no.3 : Mr. U. A. Dewan Mr. A. Dewan ….Advocates Heard on : 28.07.2026 Judgment on : July 28, 2026. Page 2 Sabyasachi Bhattacharyya, J. :- 1. Affidavit of service filed in Court today be kept on record. 2. On consent of the parties, the appeal is taken up for hearing along with the application, since the questions involved are brief. 3. By the impugned order, in a suit for partition and for declaration challenging certain transfer deeds, filed by the appellants, the appellants’ prayer for ad interim injunction was refused. 4. Learned Senior Counsel appearing for the appellants argues that the learned Trial Judge observed that prima facie it appears that admittedly there are some registered deeds of transfers in favour of defendant nos.1 and 3 which carry some presumptive value, and went on to hold that the plaintiffs/appellants have challenged the deeds to be void, but without holding trial, no inference can be drawn regarding the legality of the impugned registered deeds of transfer. 5. Furthermore, the learned Trial Judge observed that there is no scrap of paper on record from which it can be found that the plaintiffs are in prima facie possession of the suit property. 6. Learned Senior Counsel points out that from the documents furnished in the Trial Court by the plaintiffs/appellants, it would be evident that at least the name of one of the Page 3 plaintiffs/appellants, being plaintiff no.5Jaydip Das, finds place in the records of rights. 7. Thus, the finding of the Trial Court as to the appellants not being in possession of the suit property is perverse. 8. That apart, learned Senior Counsel takes the Court through the averments made in the plaint to argue that a sufficient prima facie case for challenging the gift deed dated July 4, 2017, allegedly executed by Jagadish Agarwala, the predecessor-in- interest of the appellant nos.1 to 4 and the respondents, as well as the consequential sale deeds, has been made out. 9. Moreover, it is pointed out that the suit being one for partition, the endeavour of the Court ought to have been to preserve the property till disposal of the suit in order to ensure that the final outcome of the suit is not rendered infructuous at an early stage. 10. Learned counsel appearing for the defendant/respondent no.1 argues that from the averment in paragraph no.22 of the plaint it would be evident that the suit is palpably time-barred, since it has been mentioned therein that the cause of action of the suit arose firstly on July 4, 2017, the date of execution of the deed of gift, whereas the suit has been filed only in the year 2025. Page 4 11. Even otherwise, learned counsel argues that from the materials before the Court, it would be evident that the appellant nos.1 to 4, members of the same family as the defendants/respondent nos.1 to 4, transferred a portion of the suit property to plaintiff/appellant no.5, Jaydip Das, who is a stranger to the family. After having so transferred themselves, equity demands that the plaintiffs/appellants ought not to be permitted to seek an injunction restraining the defendants/respondents from effecting similar transfers. 12. Learned counsel appearingfor respondent no. 1 also takes the Court through paragraph no.2 of the plaint and points out that the entire property mentioned in Schedule “ক” of the plaint has been mentioned to be in joint possession of the plaintiffs and the defendants and proforma defendants whereas the statements in paragraph no.4 clearly enumerate that Jagadish Agarwala, the original patriarch of the family, was only the owner of 34 decimals of property. Thus, the total property enumerated in Schedule “ক” does not tally with that belonging to Jagadish Agarwala as mentioned in paragraph no.4. 13. Accordingly, it is argued that suit itself being not maintainable, the learned Trial Judge was justified in refusing to grant ad interim injunction. Page 5 14. Upon hearing learned counsel for the parties, we find that the learned Trial Judge, while observing that no scrap of paper has been produced by the plaintiffs/appellants in respect of their possession, overlooked the extracts of the records of rights from which it transpires that at least the name of plaintiff/appellant no.5 has been recorded in respect of a part of the suit property. Thus, it cannot be ruled out that the plaintiffs are also in possession of the property. From the facts narrated in the plaint, it would be evident that the appellant nos.1 to 4 has transferred a portion of the property belonging to their share to the plaintiff/appellant no.5. 15. Insofar as the argument of limitation is concerned, the contesting respondent no.1 has also made out an arguable case, inasmuch as a question arises as to whether the suit is time-barred insofar as the challenge to the parent gift deed dated July 4, 2017 is concerned, the suit having been instituted only in the year 2025. It is to be noted that Jagadish Agarwala, the donor and the predecessor-in-interest of the plaintiff nos.1 to 4 and the defendants, never challenged the said gift deed during his lifetime. The two sale deeds which have also been challenged are consequential to transfer by dint of the gift deed. Thus, it is Page 6 contentious as to whether the suit is or is not barred by limitation insofar as the challenge to the deeds in question is concerned. 16. Be that as it may, even if it were to be assumed, without conclusively observing, that the suit is barred by limitation insofar as the said declarationsare concerned, fact remains that the partition suit encompasses other properties than those transferred by the said deeds, and, as such, would be otherwise maintainable. 17. From paragraph no.2 of the plaint, we find that the “ক” schedule property has been narrated to be in “ezmali” possession of all the parties. Although the title of the plaintiffs has not categorically been asserted in the said paragraph, the connotation of “ezmali”, although literally meaning “joint”, is extended generally to joint possession of co-sharers. As such, it cannot be altogether ruled out that the plaintiffs have asserted title as well as possession in respect of the entire “ক” schedule property, at least at the ex parte ad interim stage. 18. Moreover, in paragraph no.3, it has been stated that Jagadish Agarwala, the predecessor of the plaintiff nos.1 to 4 as well as defendant no.1, had 61 decimals of land in the suit plot, whereas the total property mentioned in “ক” schedule property is 1 acre Page 7 61 decimals of land, which gives rise to a doubt as to whether the mention of “61 decimals” instead of “1 acre 61 decimals” is an error on the part of the plaintiff. 19. Even otherwise, from a conjoint reading of the entire plaint, it is evident that the plaintiffs assert right in respect of the entire “ক” schedule property. 20. Insofar as paragraph no.4 is concerned, learned Senior Counsel for the plaintiffs/appellants has rightly pointed out that the restriction of the pleadings only to 34 decimals out of the entire suit property in the said paragraph pertains to the subject property covered by the gift deed, which has been assailed in the suit as well, and does not speak about the entire suit property. Such contention is also corroborated by the fact that the suit property has been delineated under two schedules, being “ক” schedule (with the expression “Total Plot” in parenthesis) and “খ” schedule, thereby separately mentioning the total property and the suit property and the property covered by the transfer deeds. Hence, the averments in paragraph no.4 do not limit the overall assertion of title of the plaintiffs in respect of the entire “ক” schedule property by the plaintiffs but refer only to the subject-matter of the transfer deeds, which are separately Page 8 assailed in the suit, at least ex facie on a plain reading of the plaint as a whole. 21. From the above discussions, we find that sufficiently triable issues to go for trial have been raised for the purpose of grant of injunction. 22. Even otherwise, in a partition suit, it is the effort of the Court to preserve the property in statu quo till disposal of the suit since, otherwise, the suit runs the risk of being rendered infructuous. 23. That apart, the challenge to the deeds in question can only be conclusively decided upon trial on evidence and it would be premature at the inception of the suit to hold either way with regard to such challenge. 24. In view of the above findings, the impugned order cannot be sustained. 25. Accordingly, FMA 364 of 2026 is allowed on contest against the respondent nos.1 and 3 and ex parte against the others, thereby setting aside the impugned order, bearing Order No.5 dated February 9, 2026 passed by the learned Civil Judge (Senior Division) at Chanchal, district – Malda in Partition Suit No.83 of 2025, and directing both the plaintiffs/appellants and the defendants/respondent nos.1 to 4 to maintain status quo in Page 9 respect of the suit property insofar as selling, transferring, alienating and/or creating any third party interest and/or the nature and character of the same is concerned, till disposal of the temporary injunction application in the Trial Court. 26. 26. Subject to the defendants /respondents filing their written objection to the temporary injunction application in the Trial Court within a fortnight from date, the learned Trial Judge is requested to dispose of the injunction application itself as expeditiously as possible, preferably within six weeks from the date of communication of this order to the learned Trial Judge. 27. We make it clear that the merits of the case have not been entered into by this Court and it will be open to the learned Trial Judge to decide the injunction application and the suit independently on their own merits and in accordance with law, without being influenced in any manner by any of the observations made hereinabove or in the impugned order. 28. CAN 1 of 2026 is consequentially disposed of as well. 29. There shall be no order as to costs. 30. All parties shall act on the basis of server copy of this order, duly downloaded from the official website of this Court. Page 10 31. Urgent photostat certified copies of this judgment and order, if applied for, be given to the parties upon compliance of all necessary formalities. (Sabyasachi Bhattacharyya, J.) I agree. (Supratim Bhattacharya, J.) 28.07.2026 Item no. DL 21 Court No. 16 Asraf, A.R.(Ct.)