Form No. J(2) 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 FMA No. 26 of 2026 + CAN 1 of 2025 Uttam Kumar Mal and another Vs. Ganesh Mal and others For the plaintiffs/appellants : Mr. Arup Banerjee, Mr. Arun Kr. Saha, Advs. For the defendants/respondent Nos. 1 and 2 : Mr. Arup Krishna Das, Mr. Abdus Salam, Ms. Rajarshi Ghosh, Advs. Heard on : 28.07.2026. Judgment on : 28.07.2026. Sabyasachi Bhattacharyya, J.:- 1. In view of arguable questions of fact and law being involved, we admit the appeal for hearing on the grounds taken in the memorandum of the appeal. 2. Since the issues involved are brief, on consent of the parties, the appeal is taken up for disposal along with the application. 2 3. The present appeal arises out a suit for partition filed by the plaintiffs/appellants. In the said suit, an application for temporary and ad interim injunction was filed, seeking to restrain the defendants/respondents from disturbing the harvesting of crops allegedly sown by the plaintiffs/appellants in a portion of the suit property and for restraining the respondents from transferring and/or creating any third party interest in respect of the subject property. 4. Although initially an order of status quo was passed at the ad interim stage, subsequently, by the impugned order, the said status quo was vacated and the injunction application was dismissed on merits. 5. Learned counsel for the appellants argues that the learned Trial Judge proceeded on the premise that none of the documents submitted on behalf of the plaintiffs, including the police report, indicated that the defendant no. 1 was trying to transfer the suit property or to create any third party interest. It is submitted that it is not always possible, by documentary evidence, to show such attempts. 6. Learned counsel further argues that if a transfer is already effected, there would be no efficacy to a prayer for injunction restraining such transfer. Injunction is granted, it is submitted, on the basis of apprehension and not on the basis of actual transfer. 7. Learned counsel further submits that the schedule to the injunction application, in respect of which the prayer for temporary injunction was made, is lesser in extent than the total suit property. 8. By placing reliance on the averments made in the injunction application, learned counsel for the appellants submits that the learned 3 Trial Judge ought to have construed the schedule of the injunction application to indicate the exact portion on which the plaintiffs/appellants are cultivating and to have granted injunction in respect of the said portion of the property. 9. Learned counsel for the defendants/respondent nos. 1 and 2 submits, however, that the defendants do not have any intention to transfer the property in favour of third parties. 10. However, learned counsel seriously opposes the allegation that the plaintiffs/appellants are cultivating any particular portion of the property. 11. Rather, as mentioned in the written objection filed by the respondents to the injunction application in the Trial Court, it is argued that it is the appellants who are trying to disturb the cultivation of a portion of the property by the defendants. 12. It is also alleged that the plaintiff/appellant no. 1 belongs to the armed forces and as such, he used his influence to disturb not only the defendant no. 1 but his mother as well. 13. Upon a perusal of the materials before us, we find substance in the contention of the appellants to the effect that during pendency of a partition suit, the endeavour of the Court is to preserve the suit property till disposal of the suit. 14. Accordingly, the learned Trial Judge ought to have granted injunction restraining both parties from creating any third party interest and/or from transferring the suit property during pendency of the suit. 4 15. However, we do not find any error, either of law or of fact, in the learned Trial Judge refusing to grant injunction in respect of alleged cultivation of a portion of the property by the plaintiffs, for the simple reason that there is nothing on record to show as to what exact portion of the property is being so cultivated by the plaintiffs. 16. Although learned counsel for the plaintiffs/appellants vehemently relies on the injunction application and its pleadings, we find from the said application that the plaintiffs/appellants have categorically admitted that the defendant no. 1 is disturbing the joint possession in respect of the suit property. 17. Thus, even the plaintiffs/appellants, in the injunction application, admitted joint possession of both the parties with regard to the suit property. 18. Although the schedule of the injunction application comprises of a truncated version of the entire suit property, we do not find any corresponding averments in the application as to the plaintiffs/appellants cultivating the particular plots mentioned in the schedule of the injunction application, nor do we find any effort being made on the part of the appellants to prove by other corroborative materials, including any local inspection/investigation, as to what part of the suit property exactly is being cultivated exclusively by the appellants. 19. In the absence of such material or pleading, it would be absurd for the court to grant injunction in that regard. 5 20. The repeated arguments of the appellants regarding the appellants’ share to 1/6th of the suit property does not automatically translate to the entitlement to obtain injunction in respect of physical possession of the appellants and/or cultivation in respect of a particular portion of the entire joint property. 21. In the absence of proof as indicated above, there was no scope for the learned Trial Judge to grant injunction by coming to the specific conclusion that the plaintiffs/appellants is cultivating a particular earmarked portion of the suit property. 22. Thus, we do not find any illegality in that regard in the impugned judgment. 23. In such view of the matter, FMA No. 26 of 2026 is partially allowed, thereby modifying the impugned order, bearing Order no. 20 dated November 11, 2025, passed by the learned Civil Judge (Senior Division), Second Court, Purba Bardhaman, in Title Suit No. 300 of 2023, to the extent that both parties shall remain restrained by any order of injunction from selling, transferring, alienating, encumbering and/or crating any third party interest in respect of the subject property till disposal of the suit. 24. However, the rest of the impugned order is not interfered with. 25. CAN 1 of 2025 is consequentially disposed of. 26. We make it clear that it will be open for the learned Trial Judge to dispose of the suit on its own merits upon trial on evidence without being influenced in any manner by any of the observations made hereinabove and/or in the impugned order. 6 27. There will be no order as to costs. 28. Urgent certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. (Sabyasachi Bhattacharyya, J.) I agree. (Supratim Bhattacharya, J.)