Calcutta High Court (Appellete Side)
Ashraf Jamil vs Nishat Anjum & Ors on 12 February, 2018
Author: Arijit Banerjee
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble The Acting Chief Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Arijit Banerjee
FMAT No. 570 of 2017
With
CAN No. 4859 of 2017
Ashraf Jamil
-Versus-
Nishat Anjum & Ors.
For the Appellant : Mr. Anirudha Chatterjee,
Mr. V. B. Agarwal,
Miss. V. B. Agarwal,
Mr. K. A. Bhandari
For the respondent : Mr. Prabal Kumar Mukherjee,
No. 1 Mr. Shivaji Kr. Das For the responds.
Nos 2 & 3. : Mr. Soumyajyoti Sen For the respondent : Mr. Asit Hussain, nos.4,5,7,8,9,10,11, Mr. Azim Mohammad Sabir, 12,13,14,15,16,17, Ms. Bijaya Mishra 18,19,20,21 & 22.
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Heard on: 12th February 2018 Judgement on: 12th February 2018 Jyotirmay Bhattacharya, A.C.J.:-
FMAT No. 570 of 2017
This appeal will be heard.
Lower court records need not be called for.
Since all the parties are represented by their respective learned counsel, service of notice of appeal upon the respondents is dispensed with.
Application for Stay being CAN No. 4859.
After the appeal was admitted when the application for stay was taken up for consideration, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. We are informed that all relevant papers, which are necessary for disposal of the appeal are annexed to the stay application. 3
Since all the relevant papers are annexed to the stay application, we have decided to dispose of the appeal on merit on the papers available before us by dispensing with the requirement of filing paper books in this appeal.
Let us now consider the merit of the instant appeal in the facts of the instant case.
A suit for partition was filed by the plaintiff/respondent no. 1 in respect of three properties mentioned in Schedules "A", "B" and "C" claiming 1/25th share in the suit properties. After filing the said suit, the plaintiff filed an application under Order 39 Rules l and 2 of the Code of Civil Procedure praying for temporary injunction for restraining the defendants from selling, transferring and/or creating any third party interest in the suit property and making any construction in the suit property till the disposal of the suit. Such relief was claimed by the plaintiff by alleging that the defendant no. l being a co-sharer of the suit property is trying to demolish the existing structure, for constructing a multi-storied building thereon on the strength of a power of attorney, allegedly executed by fifteen 4 out of twenty-two co-sharers. It was alleged by the plaintiff that she did not execute any power of attorney in favour of the defendant no. 1 authorising him either to demolish the existing structure or to build up any multi-storied building on the suit properties. The defendant no. 1 contested the plaintiff's said application for injunction by filing written objection asserting his right to raise construction over the suit property on the strength of the power of attorney executed by his co-sharers and/or with the consent of the other co-sharers, who did not execute the power of attorney in his favour.
The learned trial judge was pleased to pass an order of temporary injunction in favour of the plaintiff directing all the parties to maintain status quo in respect of the suit property with regard to its nature, character and possession as on the day of the order till the disposal of the suit.
The legality of the said order is under challenge in this First Miscellaneous Appeal.
5We have heard the learned counsel appearing for the parties. We have considered the materials on record including the order impugned.
Here is the case where we find three properties are involved in the suit for partition. "A" Schedule property is 3/H/7, Khalasitala Road, P.S. Hastings, 3/H/19, Khalasitala Road, P.S. Hastings is the "B" Schedule propertyand 3/H/17, Khalasitala Road, P.S. Hastings is the "C" Schedule property. Fact remains that the defendant no. 1 has already evicted the existing tenants from the "B" Schedule property and has also completed the super-structure of a three storied building (G+3) at 3/H/19, Khalasitala Road, P.S. Hastings, which is "B" Schedule property. The properties described in "A" and "C" schedules remain as it is. No development work has commenced over those two schedule of properties by the defendant no. 1 either as a co-sharer or on the strength of the power of attorney allegedly executed by some of the co-sharers in his favour. Right of a co-owner to develop a joint property is well established. A co-share can no doubt develop or improve the joint 6 property. However, if a co-sharer develops a joint property, he cannot claim any equity at the time of passing of the final decree in the suit for partition.
Here is the case where we find that the defendant no. 1 being an admitted co-owner is developing the "B" schedule property on the strength of power of attorney executed by fifteen out of twenty-two co- sharers and with the active consent of four out of seven non- consenting co-sharers. The construction of G+3 storied building on the "B" schedule property has substantially progressed. Super structure of the G+3 storied building is almost complete.
The plaintiff has not approached the trial court seeking restraint order before commencement of construction. Since the construction has progressed substantially with huge investment made exclusively by one of the co-sharers, namely, the defendant no. 1, we requested the learned counsel appearing for the plaintiff/respondent no. 1 to take instruction from his client as to whether she can secure the costs of construction by depositing at least a sum of Rs. 50,00,000/- (Rupees fifty lakhs) with the court as a condition for passing a 7 restraint order against the appellant. Learned advocate appearing for the plaintiff/respondent informs this court after taking instruction from his client that his client is unable to secure the costs of construction of the newly constructed in-complete building on the "B" schedule property.
Having regard to the fact that the super construction of the G+3 storied building is almost complete, we in order to prevent waste of such investment made in developing such property permit the defendant no. 1/appellant to complete the said construction as per the building sanctioned plan but at the same time pass some interim order for protecting the right of the appellant. Thus, the defendant no. 1/appellant is restrained from transferring, alienating, encumbering or creating any third party interest and/or parting with possession of one shop room measuring about 80 sq. fts. on the ground floor of the newly constructed building on the "B" Schedule property till the disposal of the suit. It is clarified that this order of injunction will neither prevent the defendant no. 1/appellant from restoring the possession of the erstwhile tenants in the completed building as per the contract which was entered into between the 8 defendant no. 1/appellant and the tenants of the suit premises nor prevent the defendant no. 1/appellant from selling and/or transferring and/or creating any third party interest in the other portion of the said property pending disposal of the suit. However, the fate of such transfer will abide by the result of the suit and in case any transfer is made by the defendant no. 1/appellant in favour of any third party, the defendant no. l/appellant will mention in the sale deed about the pendency of the suit.
Since the defendant no. 1/appellant has not invested any amount for developing the other two properties described in Schedules "A" and "B " of the plaint, we maintain the order of status quo, which was passed by the learned trial judge so far as the "A" and "C" schedules are concerned.
With the above observations, the appeal and the application are thus disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately. 9
(Jyotirmay Bhattacharya, A.C.J.) (Arijit Banerjee, J.) pk