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2011 DIGILAW 474 (CAL)

Sailesh Saha v. Gouri Bhattacharya

2011-04-01

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendant no.7 and is directed against the order dated May 17, 2009 passed by the learned Civil Judge, (Senior Division), First Court, Krishnagar in Title Suit No.69 of 2008 thereby rejecting an application filed by the defendant for repair of the tin shed with bamboo posts. The plaintiff/opposite party herein instituted a suit being Title Suit No.69 of 2008 for declaration of title, permanent injunction and also for partition. In that suit, the defendants are contesting. An order of status quo with regard to the suit property has been passed by the learned Trial Judge. Thereafter, the defendant no.7 filed an application for permission to repair the godown in his purchased portion of the land. That application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the point for consideration 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 suit is basically for declaration of title and partition of his purchased land to the extent of 12 decimals of land out of total land measuring 78 decimals, as described in the schedule of the plaint. In support of his contention, the defendant no.7 has clearly stated how he got the land by way of a registered deed of purchase. Though the plaintiff has denied that the defendant has no right, title, interest and possession over his purchased portion of the land, I find that the vendors who have appeared today by filing a vakalatnama have supported the contention of the defendant no.7. It is the specific case of the defendant no.7 that he has a shop named, Joyguru Bhandar and he constructed one tin shed on his purchased portion of land for using the same as godown and that godown had been damaged by the last flood. The petitioner has filed the copy of the tax receipt granted by the local gram panchayat to show that he has such a shop named Joyguru Bhandar. The defendant no.7 has clearly stated in his written statement, particularly paragraph nos.10 to 15, that he has been possessing the same portion of the suit land. The petitioner has filed the copy of the tax receipt granted by the local gram panchayat to show that he has such a shop named Joyguru Bhandar. The defendant no.7 has clearly stated in his written statement, particularly paragraph nos.10 to 15, that he has been possessing the same portion of the suit land. So, it may be the situation that he is keeping his goods in the said godown constructed on a portion of the suit land. The affidavit filed by the petitioner supports his contention. Therefore, though the plaintiff has denied the right, title, interest and possession of the defendant no.7 in suit land, in consideration of the admission of the other defendants, namely, the vendors of the defendant no.7 and the materials furnished by the petitioner, I hold that the defendant no.7 has, prima facie, right, title, interest and possession over a portion of the suit land as per his purchased deed. That godown had been lost by the flood as per his contention. Such contention is duly supported by affidavit. Therefore, I find that the petitioner has shown prima facie case in support of his contention. The defendant no.7 has wanted to repair the tin shed with bamboo posts and for that reason, on interrogation, the learned Advocate for the petitioner submits that his client will not claim any equity for the said purpose. The defendant no.7 has prayed for raising such construction temporarily as would appear from the nature of the construction to be made thereon for the purpose of making the said room as a godown. Such prayer has been made because there is an order of status quo upon both the parties. It is not the intention of the legislature that a party having right, title, interest and possession over a portion of the suit land will not be entitled to raise any construction during pendency of the suit or that he should not be allowed to repair his own house or structure. Since, the defendant wants to make a tin shed with bamboo posts in the same place of his godown, I am of the view that such type of construction can well be removed at any time, if it is found that the petitioner/defendant no.7 has no right, title, interest and possession over the said property. Since, the defendant wants to make a tin shed with bamboo posts in the same place of his godown, I am of the view that such type of construction can well be removed at any time, if it is found that the petitioner/defendant no.7 has no right, title, interest and possession over the said property. But, on being satisfied, about his prima facie right, title, interest and possession over a portion of the suit land, I am of the view that such prayer of the defendant no.7 should have been allowed by the learned Trial Judge. So, the learned Trial Judge has failed to exercise the jurisdiction vested in him. The impugned order cannot be supported. Accordingly, the revisional application is allowed. The impugned order is hereby set aside. The petitioner is permitted to repair the damaged tin shed with bamboo posts in the same position, nature and place without any encroachment for enhancing of the area of the godown. It is hereby recorded that he is allowed to raise such construction purely on temporary basis and for that purpose if the suit is decided otherwise against him, he shall not have any claim of equity over the matter. After completion of the said godown, he shall file an affidavit before the learned Trial Judge within two weeks from the date of completion of the said godown that he has raised the construction of the said godown with tin shed supported by bamboo posts. Considering the circumstances, there will be no order as to costs.