D. K. SETH, J. ( 1 ) PRAYER for extension of interim order has been made. An application for vacating the interim order has been filed by Mr. Ajit Panja on behalf of the respondents No. 1 to 5. Mr. Tapan Dutta on behalf of the respondent No. 7 has filed an affidavit-in-opposition. Now the matter is hotly contested. ( 2 ) MR. Sen opposed the taking up of the application for vacating the interim order on the ground that it is not appearing in the list and that the matter is appearing for extension of interim order and not for vacating the interim order. Be that as it may, the question now before us is as to whether the interim order should continue or not. The grant of interim order is dependant on the prima facie case being made out. When the interim order was granted, on the facts of the case disclosed by the petitioner, we found that prima facie case was made out and as such we had granted the interim order. The suit is one for partition. Normally interim orders are granted in such suit for partition in respect of allotment until the final decree is passed. ( 3 ) AT this stage, some materials have been brought out by means of an application for vacating the interim order. These are on record. We may not take up the application for vacating the interim order as contended by Mr. Sen. But the fact remains that Mr. Panja and Mr. Dutta, counsel appearing for the respective respondents, have opposed the extension of interim order. Mr. Panja in course of his submission relied on some materials, which were on record before the Court below since made part of the application for vacating the interim order. Mr. Dutta in course of his submission relied upon the affidavit-in-opposition. There cannot be any embargo preventing the Court from looking into the materials placed before it for the purpose of considering whether the interim order should be allowed to continue or not. ( 4 ) AS pointed out by Mr. Panja, it appears that some of the materials, as is disclosed, in the application for vacating interim order seem to be absent in the application for injunction order. It is contended by him that there was suppression of fact, which seems to have been mentioned in the application for vacating. ( 4 ) AS pointed out by Mr. Panja, it appears that some of the materials, as is disclosed, in the application for vacating interim order seem to be absent in the application for injunction order. It is contended by him that there was suppression of fact, which seems to have been mentioned in the application for vacating. However, we need not go into those questions except the admitted position. ( 5 ) MR. Tapan Dutta in his submission contended that there were writ petitions and two suits. This has not been disputed by Mr. Sen. The facts as disclosed by the learned counsel for the respective parties, on the basis of the submissions made and the materials placed before us, are briefly summarised as under. ( 6 ) EIGHT persons, namely, the appellant and the respondents had purchased a piece of land. All these persons entered into an agreement with the appellant that a building was to be constructed and the appellant would take charge of the construction and accordingly some funds were placed at his disposal. After a part of the building was constructed, according to Mr. Sen, his client became indisposed and could not attend to the construction. During this period, the other seven persons took over charge of the construction and had started construction. It is alleged by Mr. Panja and Mr. Dutta that the construction is almost complete. Whereas Mr. Sen contends, on instruction, that the construction is incomplete. He further contends that a portion has been kept open without any construction allegedly intended to be allowed to his client. Whereas Mr. Dutta contends that all portions are constructed but some finishing jobs await to be undertaken. ( 7 ) IT is pointed out that there were some litigation between the parties at least in the list of dates number of one writ petition has since been furnished, being W. P. No. 11800 (W) of 2001. In the affidavit-in-opposition, Mr. Dutta had disclosed two other writ petitions, being W. P. No. 11823 (W) of 2001 and W. P. No. 10697 (W) of 2003. It further appears that there were two suits, one being Title Suit No. 98 of 2001 and the other being Title Suit No. 237 of 2002 out of which the present appeal arises. These are not disputed by Mr. Sen. ( 8 ) VARIOUS reliefs are being claimed in the respective proceedings. It further appears that there were two suits, one being Title Suit No. 98 of 2001 and the other being Title Suit No. 237 of 2002 out of which the present appeal arises. These are not disputed by Mr. Sen. ( 8 ) VARIOUS reliefs are being claimed in the respective proceedings. While deciding this question, we cannot go into the merits of the respective matter, which are the subject matter of the respective proceedings. We will confine ourselves only to the question as to whether the interim order granted in this appeal should be allowed to continue or not, having regard to the scope and ambit of Title Suit No. 237 of 2002 alone. But the reference to the other suit and the writ petitions shows that the construction was complete, including the sewerage connection, which is opposed by the appellant in the writ petition No. W. P. 11800 (W) of 2001. Therefore, admittedly, the fact remains that the land has since been constructed upon though might be incomplete to the extent as indicated by Mr. Sen or to the extent as indicated by Mr. Dutta. ( 9 ) IT may be presumed that construction is made in accordance with the sanctioned plan. There is nothing to indicate that Mr. Sen's client has opposed to the sanction of the plan. In fact, he could not do so because he had undertaken the charge of the construction on the basis of the sanctioned plan. Therefore, everyone's interest in the property is confined to the construction, which as a whole, consists of eight flats to be allotted to each one of the appellant and the respondents No. 1 to 7. In fact, it has never occurred to the appellant to file a suit for partition until the filing of Title Suit No. 237 of 2002. He had been putting up a very tough fight right from 2001 by filing Title Suit No. 98 of 2001 and then two writ petitions, being W. P. No. 11800 (W) of 2001 and W. P. No. 11823 (W) of 2001. But it had never occurred to him that he would seek to establish his right as co-sharer through a suit for partition. The initial suit was for declaration. ( 10 ) AT the same time, the appellant had claimed in dual capacity, one as co-sharer and the other as developer/promoter. But it had never occurred to him that he would seek to establish his right as co-sharer through a suit for partition. The initial suit was for declaration. ( 10 ) AT the same time, the appellant had claimed in dual capacity, one as co-sharer and the other as developer/promoter. He was claiming a right of agency through the Development Agreement. But that right is subject to the dispute that might be pending in Title Suit No. 98 of 2001 with regard to which we cannot make any observation. ( 11 ) WITH regard to the prima facie case made out in the partition suit, as we find, is that he can at best be entitled only to the allotment of one of the flats as the matter stands. Whether a flat has been allotted to him or not is immaterial. On his own showing from the pleadings made in W. P. No. 11800 (W) of 2001, it appears that the other respondents are occupying the property and had undertaken the construction and had obtained sewerage connection. Therefore, the possession of these occupants cannot be disturbed at the present moment. It is a construction undertaken to be constructed which is more or less complete or yet to be completed. Admittedly, some construction has been made, the possession whereof has since been taken by the seven respondents and the sewerage whereof was also connected. It is not in dispute that eight persons including the plaintiff/appellant and undertaken the construction of the building consisting of eight flats initially through the appellant. Therefore, it prima facie appears that each one of them would be entitled to one flat with common areas; it was never intended to possess the building as a joint property outside the purview of Apartment Ownership Act. Thus, prima facie it appears that the appellant cannot claim a right except that of an apartment owner confined to his entitlement to the allotment of flat to be decided by themselves in the matter they might choose to adopt. The mode in which it would be allotted or ascertained would be decided by them jointly and the majority view with regard to the decision could be presumed to prevail. Here the appellant is the lone voice when the other seven have the right to decide, if not already decided, the mode or manner in which the allotment is to be made. Here the appellant is the lone voice when the other seven have the right to decide, if not already decided, the mode or manner in which the allotment is to be made. If by mutual arrangement, they are in occupation of different flats, then such possession cannot be disturbed and on that score the remaining construction can also not be stopped, particularly, when the appellant allowed the situation to continue without claiming any right to partition until the Title Suit No. 237 of 2002 was filed. Therefore, at this stage, it would not be wise for the Court, in the facts and circumstances of the case, to disturb the possession of the respective respondents and interfere with the completion of the construction etc. and doing all other things necessary to continue their occupation and enjoyment of the respective flats. Whether there has been allotment or not, we do not want to foreclose the issue. Therefore, we are not making any observation with regard to the merit of the suit for partition. ( 12 ) THE principle laid down in Israil v. Shamsher, ILR 41 Cal 436 : 18 Calwn 176 would not be attracted in the present context, where the building is already constructed and the appellant himself had acquiesced to such construction by undertaking himself the responsibility of developer and sought to develop eight flats for eight persons who joined the venture with the common intention to enable themselves to have eight flats constructed for themselves; thus, limiting the individual right to the entitlement of one flat with right over common area. With the development of modern day needs, the concept of ownership and the principle recognized by the Transfer of Properties Act have undergone charges in respect of certain areas. In order to suit the need of the hour, different legislations have been enacted to superimpose new concepts which deviates from and creates concept distinct from those recognized by the Transfer of Properties Act viz. , the urban tenancy concept i. e. , Premises Tenancy etc. Similarly, concept of apartment ownership, a concept different from the principle of Transfer of Property Act and the Partition Act, has since been developed. The Apartment Ownership Act recognizes the principle of proportionate ownership of land without specifying ownership of specific portion of land appurtenant to the ownership of the flat. Similarly, concept of apartment ownership, a concept different from the principle of Transfer of Property Act and the Partition Act, has since been developed. The Apartment Ownership Act recognizes the principle of proportionate ownership of land without specifying ownership of specific portion of land appurtenant to the ownership of the flat. Therefore, the claim of the plaintiff for partition has to be looked into through the concept of jointness as now developed having regard to the context peculiar to this case. ( 13 ) IN the circumstances, we do not propose to allow continuance of the interim order any further. However, we observe that the completion of the construction or possession and enjoyment of the respective flats by the respondents shall be subject to result of the partition suit. The question of equity, however, would not arise in this case since the appellant himself had agreed to make the construction and in the facts and circumstances of the case, he is entitled only to the allotment of a flat together with common area, which would be allotted to him, and which of the flat will be allotted to him is a question we now leave open. ( 14 ) IT is made clear that all these observations are tentative and has been made for the purpose of deciding the question of continuance of the interim order. This will not affect or influence the merit of the appeal or the pending suits, writ petitions or other proceedings. ( 15 ) WHERE affidavits have not been used, the allegations are deemed to have not been admitted by the respective parties. ( 16 ) LET this matter appear 'for Orders' on 24th September 2003. ( 17 ) THE application for vacating the interim order, in view of this order, seems to have become infructuous, and is accordingly dismissed. R. N. Sinha, J.- I agree. Application dismissed