Form No.J(2) IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya & The Hon’ble Mr. Justice Sandip Kumar De FMA 727 of 2026 with CAN 1 of 2026 Binod Kumar Jaiswal and Ors. Vs. Kabita Shaw and Ors. For the appellants : Mr. Sanjoy Bose, Mr. Priyankar Basu Mallick, Mr. Sattik Rout, Advs. For the respondents : Mr. Aniruddha Chatterjee, Sr. Adv., Mr. Anirban Saha Roy, Adv. Heard on : September 17, 2026. Judgment on : September 17, 2026. Sabyasachi Bhattacharyya , J. : 1. As per previous direction, the appeal itself is taken up for hearing along with the application. 2. The plaintiffs/respondents have filed a suit for declaration of their title and for permanent injunction against the defendants/appellants, in which the respondents filed an application for temporary injunction. By the impugned order, the said application has been allowed on contest, thereby restraining the defendants/appellants, their men, agents and associates from interfering, disturbing and/or dispossessing the plaintiffs from the suit premises in any manner whatsoever till the disposal of the suit. 3. Learned counsel appearing for the appellants argues that from the materials annexed to the written objection of the appellants and produced before the Trial Court, which are also placed before this Court, it would be evident that the plaint case is premised on the alleged surrender of tenancy rights by Bidya Devi Jaiswal, the mother of the appellants, who was an admitted tenant in respect of the suit property, by delivery of peaceful, vacant and khas possession in respect of the suit premises in the month of November, 2021 to the plaintiffs/respondents. However, it is argued that there is not a scrap of paper to indicate that any such surrender ever took place or that the tenancy of Bidya Devi was terminated. Rather, from the delivery challans and other documents annexed to the present application, it would be evident that the said Bidya Devi, who has been running a sole proprietorship business in pipes and ancillary products under the name and style of “Ramnidh Ajodhya Prasad”, has been in continuous possession of the suit property long after November, 2021, the alleged date of surrender. As such, it is argued that the possession of the plaintiffs/respondents is palpably illegal, being premised on the 2 unlawful dispossession of the tenant, being the mother of the present appellants. 4. It is further submitted that the suit has deliberately been filed against the present appellants by omitting to implead Bidya Devi Jaiswal, their mother, who is the actual tenant of the property. Only subsequently has an application for addition of Bidya Devi as a party been filed in connection with the suit by the plaintiffs/respondents. 5. Learned senior counsel appearing for the plaintiffs/respondents contends that it would be evident from the documents furnished before the learned Trial Judge that the last rent receipt issued in favour of Bidya Devi Jaiswal was in the month of October, 2021. It is argued that since even the defendants/appellants failed to produce any further rent receipt thereafter, it is prima facie accepted that Bidya Devi surrendered her premises after the said month, that is, October, 2021. 6. Learned senior counsel also contends that the documents furnished in support of alleged possession of the said Bidya Devi cannot be valid substitutes for rent receipts. Moreover, there is nothing on record to indicate that the said Bidya Devi took any steps for restoration of possession upon her dispossession from the suit property, even if such case of the appellants is to be accepted. 7. Upon hearing learned counsel, we find from the materials on record that certain documents have indeed been produced by the appellants before the Trial Court to indicate prima facie that Bidya Devi, through her sole proprietorship, has been in occupation of the 3 suit property even after the alleged month of her dispossession, that is, October, 2021. 8. However, as on date, it is an admitted position that the plaintiffs/respondents are the lawful owners of the suit property. 9. Thus, the possession of the respondents on the present date, which is also admitted, being that of true owners of the property, cannot be labelled as “unlawful”. Hence, on the strength of their ownership, the plaintiffs/respondents are entitled to injunction to protect such possession, subject, of course, proceedings initiated in due process of law. 10. The remedy of the appellants, if any, would lie in taking out an appropriate legal proceeding/suit/counter claim for recovery of possession in respect of the suit premises in the event the appellants and/or their mother, Bidya Devi is otherwise entitled to such possession on the strength of the tenancy rights of Bidya Devi. However, at the present juncture, since the appellants are admittedly out of possession and the plaintiffs/respondents are the admitted owners of the suit property who are in possession thereof, the learned Trial Judge was well within her jurisdiction to grant an injunction in terms of the impugned order. 11. We are also apprised that by dint of an order of a coordinate Bench, a Special Officer has been directed to take possession and still is in custody of the suit property. However, in the same breath, we find that such order was to be subject to the outcome of the injunction 4 application, which has since been disposed of. Accordingly, we do not see any reason as to why the Special Officer should continue with the possession of the suit property and the same ought to be handed over to the plaintiffs/respondents, subject of course to the outcome of any proceeding, if taken out by the appellants. 12. We further note that the injunction as granted by the learned Trial Judge was in a sense unfettered but ought to have been subjected to due process of law, in the event any proceedings are taken out for eviction of the plaintiffs/respondents by the defendants/appellants. 13. Accordingly, FMA 727 of 2026 is disposed of by modifying the impugned order, bearing Order no. 23 dated May 15, 2026 passed by the learned Judge, Second Bench, City Civil Court at Calcutta in Title Suit no. 2195 of 2024, to the extent that the defendants/appellants and/or their men, agents and associates shall now remain restrained by an order of injunction from interfering, disturbing and/or dispossessing the plaintiffs/respondents from the suit premises in any manner whatsoever, except by due process of law, till disposal of the suit. 14. The learned Special Officer appointed by this Court shall, upon being served with a server copy of this order, hand over possession of the suit property in favour of the plaintiffs/respondents at the earliest, preferably within a week thereafter. 5 15. Since we are apprised that the remuneration fixed for the Special Officer has already been paid, no further directions are being passed in that regard. 16. CAN 1 of 2026 is also disposed of accordingly. 17. It is made clear that none of the above observations shall prejudice the rights and contentions of the parties in the suit and/or in any proceeding or suit which may be taken out by the appellants. 18. There will be no order as to costs. 19. Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties upon compliance of requisite formalities. I agree. (Sabyasachi Bhattacharyya, J.) (Sandip Kumar De, J.) AD-12 Ct No.16 (SSS) 6