Calcutta High Court (Appellete Side)
Sri Dilip Shaw vs Sri Madan Prosad Shaw on 25 January, 2021
Author: Shivakant Prasad
Bench: Shivakant Prasad
6.
25.01.2021
S.D.
S.A. 119 of 2018
With
CAN 1 of 2020 (Old No. CAN 3255 of 2020)
CAN 2 of 2020
Sri Dilip Shaw
Vs.
Sri Madan Prosad Shaw, since deceased,
Represented by his heirs and legal representatives-
Sri Samir Shaw & Ors.
Mr. Debjit Mukherjee
Ms. Susmita Chatterjee
...For the Applicant.
None appears on behalf of the respondents.
Now, the application for injunction being CAN 2 of 2020 is taken up for consideration on its merit upon hearing learned Advocate for the plaintiff/appellant as the respondents have not used the liberty to file affidavit-in- opposition as per the order dated 18.1.2021. The plaintiff/appellant had filed a suit for partition against the predecessor of the present opposite parties/respondents in Title Suit No. 14 of 2001, but the suit was dismissed. An appeal being Title Appeal No. 79 of 2017 was preferred against the judgment of dismissal by the learned Civil Judge, Senior Division, 2nd Court, Howrah, which was also disposed 2 of by dismissing the appeal by the learned Additional District Judge, Fast Track Court-III. Now, being aggrieved, the plaintiff/appellant challenged the judgment and decree of both the Courts below. The appeal has been admitted by the order dated 14.8.2019 upon hearing under Order 41 Rule 11 of the Code of Civil Procedure.
It is pointed out that the opposite parties/respondents have started changing the nature and character of the suit property by making construction and have already constructed a toilet in the suit property. It is also submitted that the opposite parties/respondents have stacked building materials for further construction in the suit property. Accordingly, it is submitted that until or unless, an order of injunction is passed restraining the opposite parties/respondent from changing the nature and character of the suit property during the pendency of the appeal, the plaintiff/appellant will suffer irreparable loss and injury. It is also submitted that such overt act on the part of the opposite parties/respondents is only to dispossess the plaintiff/appellant from the suit property. In support of such submissions, reference to a decision in the case of Shaym Kumar Panja & Anr. Vs. Lakhiniwas Chittiangia reported in (2020) 1 Cal LT 166 has been referred and my attention has 3 been drawn to the order of the Division Bench in paragraphs 20, 21, 22 and 23 so also in paragraph 9 wherein decision in the case of Lekjan Bibi vs. Idris Ali reported in 2015 SCC Online Cal 2559 and also in the case of Manoj Kumar Mondal vs. Saroj Kumar Mondal in FMAT 992 of 2018 with CAN 7787 of 2018 has been addressed to the observations that so long as the property remains joint, no share-holder has right to change the nature and character of the suit property and that any attempt to diminish the value of the joint property should not be permitted until the partition suit be finally decided by a final decree.
Now, it is pointed out that the property in suit is a joint property between the parties and status quo be maintained by the parties to the suit as the appeal is continuation of the suit. In a suit for partition, the plaintiff is a co-defendant and a defendant is a co-plaintiff and they have possession over every inch of the property in joint possession of them. Therefore, it is desired that the parties do maintain status quo in respect of the nature and character of the suit property as on the date. However, this order is passed without prejudice to the rights and contentions of the parties to the Appeal.
Thus, CAN 2 of 2020 is disposed of.
No order as to costs.
4List the matter eight weeks hence.
(Shivakant Prasad, J.)