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2009 DIGILAW 317 (CAL)

Sanghati Pal v. Prakash Adhuryya

2009-04-21

KALIDAS MUKHERJEE, S.K.MUKHERJEE

body2009
JUDGMENT 1. ALTHOUGH the appeal is appearing under the heading application, by consent of parties, we take up the hearing of the appeal. 2. THIS appeal is directed against the Order No. 23 dated 23. 5. 2008 passed by learned Civil Judge (Senior Division), Bankura, disposing of the petition for temporary injunction and directing the parties to maintain status quo in respect of the suit property and not to change its nature and character in any manner whatsoever and not to transfer or alienate the same without the leave of the Court. The case of the plaintiff/respondent, in short, is that he has 10/63th share in the suit property. The suit property is the joint property of the parties being the co-sharers. Originally, the property belonged to Sishir kumar Adhuryya, who purchased the property by registered deed of sale being No. 3628 dated 15. 4. 1961 from Biswanath Salanpuria of Bankura. Thereafter, by subsequent transfers, the plaintiff has become the owner to the extent of 10/63th share. The defendant Nos. 11 to 18 have purchased some portion of the suit property from the plaintiff and other co-sharers. The defendant No. 11 being a stranger purchaser started making construction without the consent of the plaintiff covering the best portion of the suit property and encroaching upon an excess area. The suit property is the joint property of the parties and it has not been partitioned by metes and bounds. The plaintiff requested the defendant for partition of the suit property by metes and bounds, but, they have refused to do so. For the said reasons, the suit was instituted for a decree for partition and an application was filed before the Court below for temporary injunction restraining the defendant No. 11 from changing the nature and character of the suit property and from selling or alienating the suit property till the disposal of the suit. 3. THE learned Judge of the Court below, upon consideration of the materials-on-record, has been pleased to pass the order impugned, inter alia, holding that the defendant No. 11, inspite of appearing in the suit, did not pray for any post facto permission or any leave of the Court for making any construction on the suit property. 3. THE learned Judge of the Court below, upon consideration of the materials-on-record, has been pleased to pass the order impugned, inter alia, holding that the defendant No. 11, inspite of appearing in the suit, did not pray for any post facto permission or any leave of the Court for making any construction on the suit property. It has, further, been held by the learned Judge of the Court below that the plaintiff has made out a prima facie case that the suit property is a joint property of the parties and it has not been partitioned and the transfer in favour of defendant No. 11 was made by the defendant No. 1 without the consent of the plaintiff. Being aggrieved by the said order passed by the Court below, the defendant no. 11 has preferred the instant appeal. 4. MR. Chatterjee, learned Senior Counsel, appearing on behalf of the appellant submits that in the recital of the deed executed in favour of the defendant No. 11 it was clearly mentioned that defendant No. 11, the purchaser, will have the right to raise necessary construction on the purchased portion. Mr. Chatterjee submits that a specific and demarcated area was sold to the defendant No. 11 as per the recital and schedule of the deed. Mr. Chatterjee contends that the report of the learned commissioner will go to show that the defendant No. 11 is in possession of the specific and demarcated portion wherein she has raised construction up to lintel level. Mr. Chatterjee contends that from the report of the learned commissioner it will further appear that other co-sharers also are in possession their respective portions with separate buildings. Mr. Chatterjee contends that the learned Judge of the Court below was not justified in restraining the defendant No. 11 from raising any construction on the suit property. Mr. Chatterjee has referred to and cited the decisions reported in 2004 (1) Cal LJ (Cal) 430, Satish Chandra Som and Ors. v. Tarak nath Mahapatra and Ors., 2005 (2) CHN 231 , Basant Kumar Kejriwal v. Suman kejriwal and Ors. and AIR 2008 SC 2291 , Mandali Ranganna and Ors. etc. v. T. Ramachandra and Ors. Mrs. Mr. Chatterjee has referred to and cited the decisions reported in 2004 (1) Cal LJ (Cal) 430, Satish Chandra Som and Ors. v. Tarak nath Mahapatra and Ors., 2005 (2) CHN 231 , Basant Kumar Kejriwal v. Suman kejriwal and Ors. and AIR 2008 SC 2291 , Mandali Ranganna and Ors. etc. v. T. Ramachandra and Ors. Mrs. Panda, learned Advocate appearing on behalf of the plaintiff/respondent submits that although the co-sharers transferred some portion of the property to the defendant No. 11, the institution of the suit itself goes to show that there is a dispute between the parties. It is contended that there is nothing to show that the property has been partitioned by metes and bounds amongst the co-sharers. Mrs. Panda contends that the defendant No. 11 has been raising construction in the best portion of the suit property in excess of her purchased portion encroaching upon other lands. It is submitted that the learned Judge of the Court below was justified in passing the impugned order. 5. WE have carefully considered the pleadings and the submissions made by the learned Counsel for the parties. It is the settled position of law that when a person purchases a specific and demarcated portion of property, he has every right to raise construction thereon. In the instant case, from the deed executed in favour of the appellant, it appears, prima facie, that her vendor transferred the specific and demarcated portion of the property, which is further strengthened by the report of the learned commissioner. It is evident from the report of the learned Commissioner that there are five complete buildings of other co-sharers and the defendant no. 11, that is, the appellant herein has raised construction up to the lintel level. It is contended by Mr. Chatterjee that the plaintiff having sold the property to the defendant No. 11 did not raise any objection when the construction was started by the appellant, but when it reached the lintel level, the plaintiff instituted the suit with a prayer for injunction. From the report of the learned Commissioner it appears, prima facie, that apart from the appellant herein, the other co-sharers are in possession of their complete separate respective buildings. Therefore, prima facie, the property should be presumed to be separately owned by the appellant herein to the extent indicated in her deed. From the report of the learned Commissioner it appears, prima facie, that apart from the appellant herein, the other co-sharers are in possession of their complete separate respective buildings. Therefore, prima facie, the property should be presumed to be separately owned by the appellant herein to the extent indicated in her deed. It is for the plaintiff to prove what has been stated in the deed are not the real affairs. When the other co-shares are in possession of their respective buildings and the appellant herein having purchased, prima facie, a specific and demarcated portion of the property, although, allegedly, not partitioned by metes and bounds, there is no reason from the standpoint of equity to restrain the appellant herein from raising construction within her purchased portion of property. The learned Judge of the Court below granted injunction restraining the defendant No. 11 from raising construction on the ground that the appellant herein did not seek leave of the Court in making such construction. We are of the considered view that the matter of granting injunction being a discretionary relief, there must be sound exercise of judicial discretion, but, the order impugned is marked by the absence of sound exercise of such judicial discretion. The reason assigned in the order impugned, in restraining the defendant No. 11, cannot be said to be a sound reasoning. So far as the impugned order in respect of defendant No. 11/appellant herein is concerned, the impugned order is liable to be modified. The appellant shall be at liberty to raise construction within her purchased portion of the property without claiming any equity and subject to the result of the suit for partition. So far as the order restraining the parties to the suit from alienating the property is concerned without the leave of the court, it shall remain unaltered. 6. IN the result, the appeal succeeds in part. The appeal is allowed in part. The impugned order so far it relates to the order restraining the defendant No. 11 from changing the nature and character of the suit property, is set aside. Liberty is granted to the appellant to raise construction within her purchased portion of the suit property without, however, claiming any equity and subject to the result of this suit for partition. The impugned order so far it relates to the order restraining the defendant No. 11 from changing the nature and character of the suit property, is set aside. Liberty is granted to the appellant to raise construction within her purchased portion of the suit property without, however, claiming any equity and subject to the result of this suit for partition. The other portion of the order impugned restraining the parties to suit from transferring or alienating the properties-in-suit without the leave of the Court shall remain unaltered. The application bearing C. A. N. No. 4568 of 2008, also, stands disposed of. 7. THERE will be no order as to costs.