Authority: Calcutta High Court, Civil Appellate Jurisdiction (Appellate Side)

Order Date: 03 September 2026

Case Overview

  • Appeals filed: FMA No. 813 of 2026 (challenging the original ex parte ad interim injunction) and FMA No. 872 of 2026 (challenging the extension of that injunction).
  • Plaintiffs/respondents Nos. 1 & 2 (owners of flats at Premises 36B, Fort Oasis, Panditiya Road, Kolkata) sought declaration of an undivided share in an open space (driveway) connecting Premises 36B and 37, a central lawn, and a perpetual injunction restraining defendants from disturbing possession, altering boundary lines, or encroaching on the suit property.
  • Defendants: Analytical Management Consultants (appellant, owner of a flat at Premises 36A), a lessee at Premises 37, and owners of flats at Premises 36B (defendants Nos. 3‑20/respondent Nos. 4‑21). The suit property is described as a driveway and central lawn within the Fort Oasis project.
  • The appellant argued that the suit property was never conveyed to the plaintiffs or their predecessor‑in‑interest under any deed of conveyance, that the purchase deed’s schedule and sanction plan omitted the driveway, and that no agreement dated 5 January 2006 was produced.
  • The plaintiffs contended that possession was admitted (Paragraph 25 of the stay application and Paragraph 17 of the plaint), that an agreement dated 5 January 2006 was incorporated by reference into the vendor’s purchase deed and the sale deed of 23 September 2009, and that the deed’s habendum clause and schedules expressly included common areas, driveways, and the central lawn.
  • Photographic evidence and Google‑maps were submitted, showing the driveway situated within the plaintiffs’ property at Premises 36B.
  • The court examined the deed of conveyance dated 28 September 2012 (plaintiffs’ vendor), the deed dated 24 September 2020 (plaintiffs’ own conveyance), the agreement for sale dated 23 September 2009, and the tripartite agreement dated 5 January 2006 between Fort Builders, Fort Projects Private Limited and the appellant.
  • Key clauses highlighted:
  • Clause J & K of the 2009 sale agreement confirmed ownership of Premises 36B contiguous to Municipal Premises 38/1 (now 37) and Premises 36A (leased 99 years to the appellant).
  • Clause L noted that Fort Builders and Analytical Management Consultants were developing contiguous premises under the 2006 agreement, agreeing that certain facilities would remain common to all buildings.
  • Article VIII of the 2009 agreement (Seventh Schedule) listed “Recreation Center” facilities and common passages, explicitly covering driveways between Premises 36A, 36B and 37.
  • The Seventh Schedule’s clauses (v)‑(vii) enumerated all passage ways and common paths as common use for owners/occupiers of all three buildings.
  • The habendum clause of the plaintiffs’ vendor deed incorporated the 2009 agreement and described the conveyed property as including “common parts, areas, facilities” and, in the Third Schedule, “driveways”.
  • The Second Schedule of the plaintiffs’ 2020 deed described the property as comprising the flat at 36B plus “common parts, portions, areas and facilities” with an undivided proportionate share in the land, including driveways.
  • The court applied the principle from Union of India v. Amarendra Nath Sarkara (AIR 1967 Cal 119) that operative clauses prevail over recitals, finding no ambiguity in the habendum clause and schedules that transferred the vendor’s common‑area rights to the plaintiffs.
  • The court held that the plaintiffs’ possession was prima facie established, that the trial judge’s reliance on the plaint’s averments, photographs, and maps was proper, and that the test for appellate interference under Order XLIII CPC (per Bloomberg Television Production Services India Pvt Ltd v. Zee Entertainment (2025) 1 SCC 741 and Ramakant Ambalal Choksi v. Harish Ambalal Choksi (2024) 11 SCC 351) was not met.

Final Outcome

  • FMA No. 813 of 2026 is dismissed on contest, affirming the ex parte ad interim injunction order dated 16 May 2026 (Order No. 2, Title Suit No. 698 of 2026).
  • FMA No. 872 of 2026 is likewise dismissed, confirming the extensions dated 8 June 2026 and 16 June 2026.
  • The two connected applications (CAN 1 of 2026) are consequentially disposed of.
  • No order as to costs was made.
  • Parties may obtain urgent certified copies of the judgment upon compliance with formalities.

Topics: Property Dispute, Injunction