Research › Search › Judgment

Calcutta High Court · body

2004 DIGILAW 3 (CAL)

SATISH CHANDRA SOM v. TARAK NATH MAHAPATRA

2004-01-06

D.K.SETH, RAJENDRA NATH SINHA

body2004
SETH, J. ( 1 ) THIS appeal is directed against the judgment and order no. 15 dated 18th September, 2003 passed in Title Suit No. 5 of 2003 by the learned Civil Judge, Senior Division, First Court, Contai. ( 2 ) THE plaintiff had filed a suit for partition claiming interest in 1/4th share measuring about 1/2 decimal of land. According to the plaintiff, the property belonged to Sashi Bhusan and Bipin. Bipin had four sons and three daughters. 3'/2 decimals of land of Bipin was sold to Bejoy Krishna bera by four sons and one daughter on 26th October, 1983. The other two daughters Basanti and Shanti did not join in the Deed though the entire property was purported to be sold. The plaintiff purchased the share of shanti while one Sudhir Kr. Acharya purchased the share of Basanti whereas the appellants/defendants purchased 3 decimals of land from Bejoy kumar Poyra who purchased the same from Lakshmipriya, the wife of sashi Bhusan, on 13th of October 1980. Appellants purchased the property from Bejoy Kumar Poyra on 7th of August 1985. Bejoy Krishna Bera through the same document dated 26th October, 1983 had also purchased 1/2 decimal from Lakshmipriya. ( 3 ) MR. Bagchi, appearing on behalf of the respondents, contends that the plaintiff Tarak Nath became co-sharer by virtue of his purchase from Shanti in respect of the entire property of Sashi and Bipin since there was no partition. He had prayed for partition and as such co-owner, he has right over every inch of the property. Therefore, no construction can be made in any part of the joint property until the partition is effected. Therefore, the order of injunction was rightly passed. He also relied on a decision in Israil and Ors. v. Samser Rahman and Ors. , XVIII CWN 176. In the said decision Sir Ashutosh Mookerjee, as His Lordship then was, while delivering the judgment in a Division Bench was pleased to hold that in a case of injunction in respect of co-sharers' property as soon it is shown that the property is a joint property, the injunction is bound to be granted. This principle, according to Mr. Bagchi, is still holding good. ( 4 ) MR. Roychowdhury, on the other hand, had contended that the principle is well-settled and the law is still holding good. This principle, according to Mr. Bagchi, is still holding good. ( 4 ) MR. Roychowdhury, on the other hand, had contended that the principle is well-settled and the law is still holding good. But the question is dependent on the facts and circumstances of each case. The Court cannot be oblivion of the fact that this decision was rendered at a point of time when suits or appeals were disposed of in a very short time, which is not the situation today, where suits or appeals may continue through generations. Therefore, according to him, if in the circumstances, the injunction works hardship and if the Court is of the opinion that the interest of other party would not be prejudiced or that he could be sufficiently compensated and the facts and circumstances of the case make out a prima facie case to the effect that there was a partition, in that event, there is no bar in refusing the injunction, as in the present case. ( 5 ) WE have heard the learned Counsel for the parties and have gone through the order and the materials placed before us. In the objection to the application for injunction, the defendants/appellants had pointed out that the entire 3'/2 decimals of land held by Bipin Paul was sold out by five of his heirs in its entirety to Bejoy Krishna Bera on 26th October, 1983, by a Deed of Sale through which the said Bejoy Krishna Bera also purchased 1/2 decimal land of Lakshmipriya. One Prodyut Bhowmik purchased these four decimals of land from Bejoy Krishna Bera and thereafter from Prodyut Bhowmik, Smt. Monorama Pattanaik, the defendant no. 2, purchased these four decimals of land. It is also pointed out in the affidavit-in-opposition that this Monorama Pattanaik had already constructed a house in which she is residing and the boundary wall has already been constructed. Three decimals of land belonging to these appellants who purchased the property from Bejoy Kumar Poyra was lying vacant. The appellants had got this property converted and obtained sanction from the Panchayat for construction and started construction on or about October 27, 2002. According to them, during the course of such construction, the plaintiff had purchased the property on 27th November, 2002 and filed a suit in January 2003. The Commissioner had already found that construction has been made upto certain height. According to them, during the course of such construction, the plaintiff had purchased the property on 27th November, 2002 and filed a suit in January 2003. The Commissioner had already found that construction has been made upto certain height. ( 6 ) IN course of hearing of the application under Order XXXIX Rules 1 and 2 the affidavits were filed and were dealt with. The pleadings are to be looked into as to whether a prima facie case could be found out. It appears from the order appealed against that the learned Court below has not considered the questions raised in the affidavit-in-opposition that monorama Pattanaik has already constructed a house and has surrounded her occupation by a boundary wall, due to which from the conduct of parties a partition can be presumed. It has also omitted to consider that the partition does not always required a document. There may be mutual partition by conduct of parties. In case a particular area is bounded by the boundary wall leaving other portion, it prima facie presupposes demarcation of the land raising a presumption of mutual partition. These are questions, which are to be weighed with in coming to the conclusion with regard to prima facie case. The trial Court seems to have overlooked the same. ( 7 ) THAT apart, the trial Court has also overlooked that the plaintiff purchased 1/14th share measuring about 1/2 decimal of land which is too insignificant. It is a principle of partition that when a property cannot be partitioned effective, in that event, the same may be compensated by owelty money. At the same time, when construction was made by Monorama pattanaik, none of the co-sharers raised any objection. But only when the appellants are making construction, the objection is being raised but this question has to be dealt with having regard to the facts and circumstances of the case. Admittedly, the principles laid down in Israil and Ors. (supra) is still holding the field. But this ratio has to be applied having regard to the facts and circumstances of each case. Admittedly, the time has changed. Now a suit may continue for generations. In case, it works hardship and equity demands, in that event, the Court, on sufficient grounds and reasons, may pass appropriate order preserving the equity. (supra) is still holding the field. But this ratio has to be applied having regard to the facts and circumstances of each case. Admittedly, the time has changed. Now a suit may continue for generations. In case, it works hardship and equity demands, in that event, the Court, on sufficient grounds and reasons, may pass appropriate order preserving the equity. In order to ascertain the question of equity, one has to look into the facts pleaded and the conduct of the parties. ( 8 ) IN the facts and circumstances of the case, we find prima facie that by conduct of parties there was a partition when Monorama Pattanaik was allowed to raise construction and surround her occupation by a boundary wall which included the portion purported to be purchased by tarak Nath, the plaintiff, from Shanti. Admittedly, Tarak Nath is not claiming any interest in the portion of Sashi Bhusan in 1/2 decimal of land purchased by Bejoy Krishna Bera but even then Shanti could not claim any interest in respect of that 1/2 decimal, which is included in the boundary of Monorama pattanaik. There is nothing on record to show that Shanti had ever objected to the construction of house by Monorama Pattanaik or surrounding of the land by boundary wall. Therefore, even if Shanti had any interest, she might claim her interest in respect of the land held by Monorama when monorama herself had surrounded by boundary wall, which was not objected to by the appellants in between themselves, then Shanti cannot raise any objection with regard to the portion held by the appellants. Thus, we find, prima facie, that the case is in favour of the appellants. ( 9 ) MR. Roychowdhury in support of his contention has relied on the decisions in Tarsem Singh and Ors. v. Parkash Kaur, AIR 2002 Punjab and haryana 258; Bepin Krishna Sur and Ors. v. Gautam Kumar Sur and Ors. , 85 cwn 393 and Phani Bhusan Dey v. Sudhamoyee Roy and Anr. , 91 CWN 1078. Our views find support from the decisions cited by Mr. Roychowdhury. v. Parkash Kaur, AIR 2002 Punjab and haryana 258; Bepin Krishna Sur and Ors. v. Gautam Kumar Sur and Ors. , 85 cwn 393 and Phani Bhusan Dey v. Sudhamoyee Roy and Anr. , 91 CWN 1078. Our views find support from the decisions cited by Mr. Roychowdhury. ( 10 ) HAVING regard to the facts and circumstances of the case, we are of the view that since the learned Trial Court has omitted to consider the materials available on record and failed to follow the principles of law which ought to have been weighed with for the purpose of coming to a conclusion for finding out the prima facie case, the judgment cannot be sustained. We, therefore, set aside the said order and dispose of the application for injunction as hereafter. ( 11 ) THE appellants shall be at liberty to raise construction on the portion held by them without claiming any equity and subject to the result of the suit for partition. All these observations made herein are tentative for the purpose of disposing of the application for injunction and shall not bind or influence the learned Trial Court in any manner whatsoever while deciding the case on merit. We keep all points open. ( 12 ) THE application for injunction is, thus, disposed of. ( 13 ) THE appeal is, thus, allowed. ( 14 ) THERE will, however, be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied within 7 days. Sinha, J. : I agree. S. K. G.