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2006 DIGILAW 583 (CAL)

NITNI CHAND SAHA v. SWAPAN KUMAR SAHA

2006-09-08

PRANAB KUMAR DEB

body2006
PRANAB KUMAR DEB, J. ( 1 ) THIS instant revisional application has been directed against the order dated 20-05-2006 passed in Misc. Appeal no. 2 of 2006, whereby the order of the trial court dated 02-2006 passed in Title Suit No. 26 of 2006 was alarmed. ( 2 ) IN moving the revisional application, the learned counsel for the petitioner has submitted that the trial court as well as the appellate court failed to appreciate the fact that in view of the amicable settlement being made, the co-sharers made constructions in the allotted portions right from the year 1977. Acting on such family arrangement, the elder brother of the petitioner sold out his allotted western part of the land covering 11 acres of land in the year 1989, with the other two brothers accepting the sale of that portion in favour of an outsider. The other two brothers continued to enjoy their respective portions with the opposite party also making construction on his allotted portion. The amicable settlement in terms of the family arrangement having been accepted and executed, the opposite party/plaintiff cannot stand in the way of the petitioner making construction on his separate allotted portion, as contended by learned counsel representing the petitioner. ( 3 ) REFERRING to the granting of sanctioned plan, it is submitted that enquiry is conducted before granting sanction of the plan. On being satisfied about the allotment of separate share in favour of the petitioner, the building plan was sanctioned. The sanction fee was also accepted. The petitioner also got his name mutated in the register. Construction upto lintel has also been made. In view of the petitioner exercising his right over his allotted share in terms of the family settlement, the opposite party should not be allowed to raise any objection with regard to the construction of the building. ( 4 ) REFERRING to the case of Kale and Ors. vs. Deputy Director of consolidation Si Ors. , reported in (1976) 3 SCC 119 , it is contended that the trial court as well as the appellate court failed to appreciate the fact that the family arrangement may be even made orally in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced to writing. , reported in (1976) 3 SCC 119 , it is contended that the trial court as well as the appellate court failed to appreciate the fact that the family arrangement may be even made orally in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced to writing. There being overwhelming materials indicating amicable partition in terms of the family arrangement, the refusal to grant injunction, it is submitted, was totally unjustified. ( 5 ) DEFENDING the order of the trial court as well as the appellate court, the learned counsel for the opposite party has submitted that since there was no amicable partition amongst the co-sharers, none of the co-sharers could claim exclusive possession and title in respect of the portion of the undivided property. It is contended that until the ejmali property ispartitioned fay a registered deed or through the intervention of the court, the ejmali property shall continue to be joint property till separation is effected. ( 6 ) IN refusing to grant injunction, the trial court dolefully missed certain aspects. In considering the application for injunction, the court is required to look into the balance of inconvenience. It is on record that construction has been made upto the lintel level. The opposite party let the construction to be made upto lintel level. It was after substantial construction being made that obstruction to the construction was alleged to have been made by the opposite party. Having tacitly acquiesced in the petitioner making construction on a portion of the land, the resistance cannot be justified. ( 7 ) THE construction, as borne out by the record, was being made in terms of the plan sanctioned by the Panchayet. Under the Panchayet Act, an enquiry is to be effected before sanction of the building plan. In the instant case, such plan was sanctioned after holding of an enquiry. The rent receipts bear out the contention of the petitioner that he continued to pay the rents in respect of his allotted share. No objection regarding payment of rent in respect of the separate portion by the petitioner was ever raised by the opposite party and the successor in interest of the erstwhile co-sharers. The petitioner also got his name mutated in the record of right. No objection regarding payment of rent in respect of the separate portion by the petitioner was ever raised by the opposite party and the successor in interest of the erstwhile co-sharers. The petitioner also got his name mutated in the record of right. Recording of the name of the petitioner in respect of the demarcated portion is also fair indication of severance of the ejniali property by amicable settlement. A partition of land can be effected through the registered deed. It can also be effeted through partition suit idea of effecting family arrangement was never deprecated under the hindu Law. As observed by the apex court in Kale and Ors. vs. Deputy director of Consolidation and Ors,, reported in (1976) 3 SCC 119 (supra ). family arrangement may be orally made. There are all indications that the erstwhile co-sharers made an arrangement for partition of ejmali property amongst themselves, The eldest brother sold out ins allotted western portion of the ejmali property in the year 1989 to other persons. The two other brothers did not object to the transfer of the portion by their elder brother in favour of outsiders. The remaining two brothers continued to possess their respective portions - each holding 11 acres -with the petitioner paying the rents in respect of his allotted portion of the land. He got his name mutated in the record of right. Sanction of the building was also accorded by the panchyet on the basis of enquiry. as to possession and title. There being prima facie materials indicating partition of the land through family arrangement, the opposite party, cannot object to the construction of the building as per sanctioned plan by the petitioner who happens to be his brother. Prima facie case having been established and balance of inconvenience having tilted very much in favour of the petitioner, there should have been an order of injunction in favour of the petitioner. Needless to mention that refusal to grant injunction in such cases cannot be compensated by the award of money. Refusal to grant injunction without appreciation of the facts thus resulted in miscarriage of justice, justifying interference in revision. ( 8 ) IN the result, the revisional application is allowed, setting aside the order of the trial court passed on 07-02-2006 and the appellate court in Misc. Appeal No. 2 of 2006. Refusal to grant injunction without appreciation of the facts thus resulted in miscarriage of justice, justifying interference in revision. ( 8 ) IN the result, the revisional application is allowed, setting aside the order of the trial court passed on 07-02-2006 and the appellate court in Misc. Appeal No. 2 of 2006. The opposite party shall be injuncted from interfering with the work of construction in the suit land till the disposal of the application for temporary injunction. ( 9 ) THE application for temporary injunction is required to be disposed of within 15 days of communication of this order with further direction upon the trial court to dispose of the title suit being 26 of 2006 within four months of communication of this order. Revision allowed.