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2012 DIGILAW 593 (CAL)

Nitai Bhakat v. Manoj Kumar Bhakat

2012-07-06

PRASENJIT MANDAL

body2012
JUDGMENT: PRASENJIT MANDAL, J 1. THIS application is at the instance of the plaintiff and is directed against the Judgment and Order dated March 15, 2012 passed by the learned Additional District Judge (Senior Division), 2nd Court, Midnapore in Misc. Appeal No.34 of 2011 thereby affirming the Order No.16 dated March 29, 2011 passed by the learned Civil Judge (Senior Division), 1st Court, Midnapore in Title Suit No.404 of 2010. 2. THE plaintiff/petitioner herein instituted a suit being Title Suit No.404 of 2010 against the opposite party before the learned Civil Judge (Senior Division), 1st Court, Midnapore for declaration of right, title and interest in respect of 'A' schedule property as described in the schedule to the plaint and other consequential rights, permanent injunction, etc. 3. THE plaintiff/petitioner filed an application for temporary injunction and upon contested hearing, the learned Trial Judge dismissed the application for temporary injunction on contests. Being aggrieved by the said order, the plaintiff preferred an appeal being Misc. Appeal No.34 of 2011 and then upon hearing both 2nd the sides, the learned Additional District Judge, Court, Paschim Midnapore dismissed the Misc. Appeal on contests without costs. Being aggrieved by the said judgment and order of affirmation, this application has been preferred. 4. NOW, the question is whether the impugned order should be sustained. 5. UPON hearing the learned Advocates for the parties and on going through the materials-on-record, I find that admittedly by a registered Deed of Partition of 1988 and subsequent gifts amongst the co-sharers, the plaintiff / petitioner herein got 'A' schedule property and the defendant/opposite party herein got the 'B' schedule property and there is a common wall between the two portions at some places. Admittedly, the building is an old one and is in dilapidated condition and accordingly, the defendant/opposite party herein wanted to make construction on his portion of the land as described in Schedule 'B' to the plaint. The grievance of the petitioner is that the defendant has collected materials and he is taking necessary steps for construction in his portion without leaving 4 feet side space as per provisions of the rules made under the Municipal Act, 1993. 6. The grievance of the petitioner is that the defendant has collected materials and he is taking necessary steps for construction in his portion without leaving 4 feet side space as per provisions of the rules made under the Municipal Act, 1993. 6. IN this regard, from the materials-on-record and the observations of the Courts below, I find that both the Courts below have made clear observation that as per terms of the agreement both the parties are at liberty to use the common wall for the purpose of making construction in their respective portions of land alloted by the Deed of Partition. Accordingly, the defendant was raising construction in place of his dilapidated building after demolition of the dilapidated building and for that purpose they made holes to raise R.C.C. pillars on the land for strengthening the construction. For that purpose, the defendant had obtained sanctioned plan from the concerned Municipality. It is also the observation of the Courts below that the sanctioned plan is not under challenge before the Trial Court. Even the concerned Municipality has not been made a party in the suit. 7. THE defendant / opposite party herein has contended that in view of the terms of the Partition Deed, parties are at liberty to make their construction using the common wall for the purpose of construction in their own portion. But in order to make a new construction, the said dilapidated building of the defendant has been demolished. So, the land of the defendant became a vacant land. Construction may be made thereon according to rules and regulations under the Municipal Act, 1993 and so 4' wide side space is to be left. It is not the case of the defendant that he is making construction by leaving 4' wide side space. Rather from the allegation of the plaintiff duly supported by an affidavit, it is evident that the defendant is proceeding to make construction without leaving the 4' wide side space. The photograph appearing at page no.36, prima facie, indicates that the holes for R.C.C. pillars had been made in violation of the rules under the Act. There is, prima facie, a drain between the holes and the common wall as per photograph. If construction is made by raising pillars on the holes and then wall is constructed, nobody will have, perhaps, entrance to the drain for the purpose of cleaning the drain etc. There is, prima facie, a drain between the holes and the common wall as per photograph. If construction is made by raising pillars on the holes and then wall is constructed, nobody will have, perhaps, entrance to the drain for the purpose of cleaning the drain etc. 8. MR. Rabindra Nath Mahato, learned Advocate appearing for the petitioner, has referred to the decision of Krishna Kali Mallik v. Babulal Shaw and ors. reported in AIR 1965 Calcutta 148 particularly the paragraph No.20 and thus, he submits that the defendant cannot be allowed to make such construction which is totally illegal and the prayer for temporary injunction may be granted in favour of the plaintiff in such circumstances. 9. HE has also referred to the decision of an unreported case in S.A. No.371 of 2001 passed by one of the Hon'ble Judges of this Hon'ble Court and thus, he submits that raising of construction without leaving adequate space is totally illegal and so, the illegal construction should be stopped. Permanent injunction has been granted by the judgment. 10. IF the defendant is able to raise a new construction once, it will be difficult for the plaintiff to demolish the same if he succeeds in the suit ultimately. The plaintiff / petitioner has, therefore, proved prima facie case to go for trial in the suit. The balance of convenience in granting injunction is in favour of the plaintiff. If no injunction as prayed for is granted and if the defendant succeeds in making construction without leaving side space as per rules and regulations under the Act, it is the plaintiff who is to suffer irreparable loss. The contrary findings of the Courts below, I hold, cannot be supported. 11. IN view of the above findings and the decisions cited by Mr. Mahato, I am of the view that the impugned judgment and order cannot be upheld. Both the Courts below have failed to address the issue properly. 12. ACCORDINGLY, the application succeeds and is, therefore, allowed. The impugned judgment and order is hereby set aside. 13. THE order dated March 29, 2011 of the learned Trial Judge is also set aside. The prayer of the plaintiff for temporary injunction as per application dated August 2, 2010 is hereby granted. 14. CONSIDERING the circumstances, there will be no order as to costs. 15. The impugned judgment and order is hereby set aside. 13. THE order dated March 29, 2011 of the learned Trial Judge is also set aside. The prayer of the plaintiff for temporary injunction as per application dated August 2, 2010 is hereby granted. 14. CONSIDERING the circumstances, there will be no order as to costs. 15. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.