Calcutta High Court (Appellete Side)
Bijoy Samanta & Ors vs Shrimati Chandi Rani Mandal & Anr on 28 August, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shivakant Prasad
F.M.A.T. 781 of 2017
with
CAN 6803 of 2017
Bijoy Samanta & Ors.
versus
Shrimati Chandi Rani Mandal & Anr.
For the Plaintiffs/Appellants : Mr. Rabindra Nath Mahata,
Mr. Aritra Shankar Roy.
For the Defendants/Respondents : Mr. Manabendra Thakur,
Mr. Swarup Kumar Ghosh.
Heard On : 28-08-2017.
Judgement On : 28-08-2017.
Jyotirmay Bhattacharya, J. :
This appeal will be heard.
Lower court records need not be called for.
Since the respondents are represented by their learned advocate Mr. Manabendra Thakur, service of notice of appeal upon the respondents is dispensed with. The appeal is thus treated ready as regards service of notice of appeal upon the respondents.
After the appeal was admitted for hearing, when the application for injunction filed by the appellants in connection with this appeal is taken up for hearing, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal. We are also informed by the learned counsel appearing for the parties that all relevant papers, which are necessary for disposal of the appeal, are available before this Court.
On such request being made by the learned counsel appearing for the parties, we have decided to dispose of the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal.
This first miscellaneous appeal is directed against an Order being No.10 dated 4th July, 2017 passed by the learned Civil Judge (Senior Division), Ghatal in Title Suit No. 17 of 2017 by which the plaintiffs' application for temporary injunction was rejected by the learned Trial Judge on contest without cost. The legality and/or propriety of the said order passed by the learned Trial Judge is under challenge in this first miscellaneous appeal at the instance of the plaintiffs/appellants.
Let us now consider the merit of the instant appeal in the facts of the present case.
The plaintiffs/appellants, after filling a suit for partition, filed an application under Order 39 Rules 1 and 2 of the Civil Procedure Code praying for temporary injunction for restraining the defendants from raising any construction over the suit property. It is alleged by the plaintiffs/appellants that the defendants are trying to raise construction on a portion of the suit property which is not in his possession. It is also alleged by the plaintiffs/appellants that the defendants are trying to raise some construction on the best and/or valuable portion of the suit property. It is further alleged by the plaintiffs/appellants that if the defendants are allowed to raise construction over the undivided joint property, the ultimate relief for partition may not be effectively given to the parties according to their share.
The defendants/respondents contested the plaintiffs' application for temporary injunction by filing objection stating therein that they purchased a demarcated land from the plaintiff no.2 vide a registered deed of conveyance being No. 7842 dated 8th December, 1987 and since the time of their purchase, they have been possessing the said land by constructing a house with asbestos shed therein. It is further alleged by them that after demolishing the said construction, they are going to raise further construction therein after obtaining sanction plan from the local gram panchayat. The defendants/respondents have also stated that they will not raise any construction beyond the demarcated portion which they purchased from the plaintiff no.2. The defendants, thus, prayed for dismissal of the plaintiffs' application for temporary injunction.
By the impugned order, the plaintiffs' application for temporary injunction was rejected by the learned Trial Judge as the learned Trial Judge found that the defendants have purchased a demarcated land from the plaintiff no.2 and they are going to raise construction within the demarcated land which they have purchased from the plaintiff no.2 as per the sanction plan.
Being aggrieved by the order passed by the learned Trial Judge rejecting the plaintiffs' application for temporary injunction, the instant appeal has been filed by the plaintiffs/appellants.
Let us now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the present case.
At the outset, we would like to mention here that purchase of any demarcated portion of the land from one of the co-sharers does not amount to partition as the other co-sharers did not join expressing their consent for transferring any demarcated portion of the land by one of the co-sharers in favour of a stranger purchaser. By purchasing any interest in the joint property, the defendants/respondents at best became co-sharers of the undivided property, but they cannot claim any exclusive right, title and interest over the demarcated portion which they allegedly purchased from the plaintiff no.2.
Be that as it may, a partition suit may continue for more than one or two decades. As such, we feel that justice will not be subserved if a co-sharer is restrained from either improving the construction which they were possessing earlier or developing the portion which is in their exclusive possession pending disposal of the suit.
Here is the case, where we find that the defendants/respondents have obtained a sanction plan from the local gram panchayat for raising construction in a portion of the suit property. The defendants/respondents claim that they will not raise any construction beyond the demarcated land which they allegedly purchased from the plaintiff no.2. Admittedly, the said defendants, after purchasing the portion of the suit property, raised construction over the suit property and they were enjoying the same since the time of such purchase without any objection being raised from any of the co-sharers earlier. As such, we are of the view that such co-sharers cannot be restrained from raising construction and/or developing the portion which is in their possession since the time of their purchase from the plaintiff no.2.
We, however, make it clear that such construction should be made by strictly adhering to the sanction plan granted by the local gram panchayat, however, without extending their construction over any area beyond the demarcated area which they allegedly purchased from the plaintiff no.2.
It is, however, made clear that since we are permitting those defendants to raise construction on undivided joint property, the defendants will not be permitted to claim any equity for raising such construction at the time of passing of the final decree in the said partition suit. The impugned order is, thus, modified to the above extent.
Both the appeal and the application for injunction being CAN 6803 of 2017 filed in connection with the appeal are, thus, disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( SHIVAKANT PRASAD, J. ) dc.