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2010 DIGILAW 1458 (CAL)

Ajit Kumar Das v. Phani Bhusan Das

2010-12-16

PRASENJIT MANDAL

body2010
Judgment :- Prasenjit Mandal, J This application is at the instance of the plaintiffs and is directed against the order no.3 dated September 24, 2010 passed by the learned District Judge, Howrah in Misc. Appeal No.248 of 2010 thereby reversing the order dated August 19, 2010 passed by the learned Civil Judge (Junior Division), First Court, Howrah in Title Suit No.69 of 2009. The short fact is that plaintiffs instituted a title suit being the Title Suit No.69 of 2009 against the opposite parties for partition, declaration and injunction in respect of the properties mentioned in the schedule of the plaint. The defendants are contesting the said suit. The plaintiffs obtained a sanctioned plan from the Panchanyat Authority and they are making construction according to the sanctioned plan. At that time, an objection was raised by the opposite parties contending, inter alia, that the plaintiffs are making constructions on the best portion of the land and that they did not obtain any sanctioned plan for making the construction. The defendant nos. 1 to 7 filed an application under Order 39 Rules 1 & 2 of the C.P.C. to that effect and that application was rejected by the learned Trial Judge. Being aggrieved, the defendants preferred a misc. appeal which was allowed by the impugned order. Being aggrieved, the plaintiffs have preferred this application. Mr. Mukherjee, learned Advocate appearing on behalf of the petitioners, submits that his clients filed the suit for partition, declaration and injunction and his clients are in exclusive possession of the portion in respect of which the construction has been made in part. He also submits that by way of an affidavit in their objection, the petitioners have stated that they will not claim any equity in case the land in question falls to the other side and that they would remove the construction on their own costs. On the other hand, Mr. Chowdhury, learned Advocate appearing on behalf of the opposite parties, submits that the suit being one for partition filed by the plaintiffs, they cannot cause the change of nature and character of the suit property during the pendency of the suit. The plaintiffs did not get any permission from the concerned panchayat authority at all, though they have stated that they got the sanctioned plan. The plaintiffs are making construction on the best portion of the land in suit. The plaintiffs did not get any permission from the concerned panchayat authority at all, though they have stated that they got the sanctioned plan. The plaintiffs are making construction on the best portion of the land in suit. Therefore, the plaintiffs should not be permitted to raise construction. Therefore, the question that arises for decision in this application is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiffs/petitioners filed the suit for partition, declaration and injunction. They have clearly stated that they submitted a plan for sanction before the panchanyat authority but the panchayat authority did not sanction any plan within a reasonable time. Therefore, as per provisions of the Panchayat Act, the plaintiffs are entitled to presume that the plan for making construction had been sanctioned by the panchayat authority. On the basis of such presumption, they proceeded to raise construction on the suit land. It is the specific case of the plaintiffs that they are in exclusive possession of the suit property and that they started construction on the land in suit which is in exclusive possession of the plaintiffs. The plaintiffs have stated in the objection against the petition for injunction that if the land on which they are making construction falls on the other side, they would not claim any equity and that they would remove the construction at their own costs. Such stand has been stated by the plaintiffs in the objection supported by an affidavit. It is submitted before me on behalf of the plaintiffs that the construction has been made up to the ground floor and the finishing works are to be done. Thus, I find from such submission that huge expenditure has been incurred for raising construction of the ground floor but for not finishing the same, the plaintiffs are deprived of the enjoyment of such construction. This being the position, if the plaintiffs are allowed to complete the construction of the ground floor only, I am of the view that the defendants will not be prejudiced in any way. This being the position, if the plaintiffs are allowed to complete the construction of the ground floor only, I am of the view that the defendants will not be prejudiced in any way. The learned Trial Judge has held that the plaintiffs are in possession of the plot in suit on which the construction is being raised and that they are raising the construction in place of their old hut comprised of mud wall and that due to passage of time, nature and calamity, the same has become so dilapidated, that the same has become inhabitable. This being the position, besides the established principles of grant of injunction, other factors such as, the present condition of the house of the plaintiffs and the fact that they expended huge money for raising construction on the portion of the land under their occupation are also to be considered for disposal of the matter. My observation get support from the decision of Mandali Ranganna & ors. Vs. T. Ramachandra & ors. reported in (2008) 11 SCC 1 filed by Mr. Mukherjee. On the other hand, Mr. Chowdhury appearing for the opposite parties refers to the decision of Kochunju Nair Vs. Koshy Alexander and ors. reported in AIR 1999 SC 2272 to show that if any suit for partition is lodged, the co-owner is not debarred from erecting a homestead on his own land. On careful perusal of the said decision, I find that this decision also supports the contention of the plaintiffs and it does not help the defendants in any way. Mr. Chowdhury also referred to the letter of the concerned Gram Panchayat to show that no sanction was ever given to the plaintiffs to raise construction. The plaintiffs have stated that since the concerned Gram Panchayat did not issue any letter of sanction within the stipulated period, it will be presumed that sanction has been accorded. This being the position, I am of the view that since the plaintiffs have raised construction on the place over which they had earlier mud house and that they given an undertaking that they would not claim any equity, I am of the view that the order of the lower appellate Court cannot be supported. This being the position, I am of the view that since the plaintiffs have raised construction on the place over which they had earlier mud house and that they given an undertaking that they would not claim any equity, I am of the view that the order of the lower appellate Court cannot be supported. The learned lower appellate court has failed to take note of the surrounding circumstances and the fact that the plaintiffs have expended huge money for making construction of the ground floor for their residential purpose. Therefore, I am of the view that the order impugned cannot be sustained. It is, therefore, set aside. The plaintiffs are permitted to complete the construction of the ground floor in place of their old house subject to the result of the suit. It is also hereby recorded that for making such construction, the plaintiffs will not get any equity. The plaintiffs are not permitted to raise any construction on the roof of the ground floor until it is permitted by the learned Trial Judge on the basis of an application, if filed by the plaintiffs to that effect. This application is disposed of in the manner indicated above. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.