Calcutta High Court (Appellete Side)
Sri Pintu Modak vs Sri Hemanta Paul And Others on 24 April, 2019
1
24.04.2019.
Item No. 44
C.A.N. 9910 of 2018
in
F.M.A.T. 1244 of 2018
Sri Pintu Modak
Vs.
Sri Hemanta Paul and others.
Mrs. Sulekha Mitra,
Mr. Manas Kumar Das.
... for the appellant.
Mr. Subhas Chandra.
... for the respondent nos. 1 to 10.
The present appeal arises from order no. 56 dated 9th October 2018 passed by the learned Civil Judge (Senior Division), Additional Court, Bankura in Title Suit No. 16 of 2017, by which an application for injunction filed by the plaintiffs/respondents was allowed directing both the parties to maintain status quo as of that date in respect of the possession, nature and character of the suit property and also not to change the same till the final disposal of the suit.
Admittedly, the said suit is filed by the plaintiffs/respondents seeking partition and separation of their shares. The parties are jointly in possession of the suit property and the moment the suit for partition is filed, the plaintiffs/respondents impliedly accepted the undivided right, title and interest of the defendants in respect of the suit property. There is no claim of ouster by the plaintiffs or the defendants and, therefore, the possession of each co-owner is not only a possession in respect of his/her share but on behalf of other co-sharers as well.
Ordinarily, the court should not permit any of the co-sharers to encumber and render the property valueless but it is equally true that the co-sharers enjoin the common right in every portion of the property and may use the same in such manner, which does not impair the said property or create any kind of hindrance to the other co-sharers.
It appears from the report of the Advocate Commissioner appointed by the trial court that the construction made by the 2 defendant no. 1/appellant has substantially come up and at this juncture the impugned order is passed restraining the defendant no. 1/appellant from making any further construction.
Though the order is couched in different language but the effect can be seen and manifested when both the parties are directed to maintain status quo with regard to the nature and character of the suit premises.
As indicated above, there is already an existence of substantial construction at the suit premises and it would not be proper that an injunction should be granted restraining from making such construction. The reliance can be placed to a judgment of the Apex Court rendered in case of Mandali Ranganna & Ors. Etc. vs, T. Ramachandra & Ors., reported in (2008) 11 Supreme Court Cases 1, wherein the Apex Court in an identical situation held:
"We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The Trial Court is requested to hear out and dispose of the suit as early as possible. If any third party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is subjudice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit. Respondents must also furnish sufficient security before the learned Trial Judge within four weeks from the date which, for the time being, is assessed at Rupees One Crore."
We are not unoblivion of the fact that the co-sharer, who raised the structure, may claim equity at the time of final decree. If a co-sharer has taken a risk of making construction at the undivided property, he/she cannot claim special benefit i.e. plea of equity.
We, therefore, do not find that the impugned order is justified. The impugned order is, thus, set aside.
However, we make it clear that the defendant no. 1/appellant shall not claim any equity on the basis of such construction at the time of final decree nor the trial court shall be swayed by the factum of such construction.
With the above observations, the instant appeal is disposed of.
3In view of the disposal of the appeal itself, the connection application being CAN 9910 of 2018 has become infructuous and the same is also disposed of.
There shall, however, be no order as to costs.
ab (Hiranmay Bhattacharyya, J.) (Harish Tandon, J.)