JUDGMENT : 1. Leave is granted to the learned Advocate-on-record of FMAT 306 of 2023 to implead the left out party as respondent here and now in the Memorandum of Appeal. 2. Both the appeals are taken up together for the sake of gravity and to avoid the repetition of facts as the aforesaid appeals have been filed assailing identical order no. 11 dated June 23, 2023 passed in Title Suit No. 474 of 2023 by the Learned Civil Judge (Senior Division), First Court, Barasat by which an application for temporary injunction was disposed on contest. 3. By the impugned order both the plaintiff and the defendant numbers 16 to 67 of the said suit are directed to maintain status quo in respect of their respective possession of the suit property till the disposal of the suit. The plaintiff of the said suit has filed FMAT 294 of 2023 on a limited score that the Trial Court ought to have passed an order restraining the aforesaid defendants from continuing with the construction or making any construction over and above the suit property; on the other hand, the defendant no. 67 filed an appeal being FMAT 306 of 2023 assailing the said order on a premise that there was no case made out for passing a temporary injunction even in the form of status quo with regard to the respective possession of the parties in respect of the suit premises and the Trial Court ought to have dismissed the application for temporary injunction. 4. The suit for partition and separation of share is filed by the plaintiff/appellant in FMAT 294 of 2023 in respect of LR Dag No. 4292/5210 situated in Mouza – Matigacha, JL No. 187 previously under the Police Station Barasat presently under Rajarhat with further relief in the form of a decree that the purported two development agreements both dated February 10, 2023 are illegal, null and void, bad in law and not binding upon the said plaintiff. 5. The said plaint proceeds that one Hajira Bibi @ Tarafdar Hajira Bibi, Akbar Ali Baidya, Orgila Bibi @ Abdul Argina Bibi, Baidya Ainur Bibi @ Ainur Bibi, Rashidul Baidya, Sabera Bibi and Chyera Bibi were the co-owners to the extent of 11.56% share in respect of the said LR Dag No. 4292/5210 recorded under Khatian Nos. 2665/2663/2661/2658 along with other co-owners being the defendant nos. 1 to 66. 2665/2663/2661/2658 along with other co-owners being the defendant nos. 1 to 66. By a registered deed of conveyance dated November 25, 2014, the Hajira Bibi transferred and conveyed her interest in respect of the suit property in favour of the plaintiff/appellant herein for a valuable consideration mentioned therein. 6. By dint of three sale deeds dated November 21, 2014 Akbar Ali Baidya, Orgila Bibi, Ainur Bibi, Rashidul Baidya, Sabera Bibi and Chyera Bibi sold transferred and conveyed their interest in respect of the suit property in favour of the plaintiff and it is not in dispute that after the transfer of the aforesaid share in the property the LR record of right was corrected by incorporating the name of the plaintiff of the said suit and exercised such right upon payment of Khajna. It is further averred in the plaint that after acquiring the said right, title and interest in respect of the aforesaid suit property, the plaintiff became the co-owner/cosharer in respect thereof having an undivided share therein. It is alleged in the plaint that the defendant nos. 16 to 66 who are also arraigned as respondents in the instant appeal with their associates tried to disturb the physical possession of the plaintiff/appellant when the inspection and survey was contemplated in respect thereof. It is further alleged that the aforesaid defendants were taking all resorts and exhausting all the resources available in their hands trying to demolish the boundary wall/fencing and in course of an interaction it appears that they have entered into two development agreements dated February 10, 2023 purportedly executed in favour of the defendant no. 67 in respect of entire plot no. 4292/5210 without the concurrence or consent of the plaintiff and have also taken steps to raise a construction thereupon. 7. Several applications under section 144 (2) of the Code of Criminal Procedure was filed by the plaintiff/appellant and in one of such proceedings the officer-in-charge of the Rajarhat Police Station was directed to see that no breach of peace takes place at the property with further direction upon the parties not to change the nature and character thereof. 8. 7. Several applications under section 144 (2) of the Code of Criminal Procedure was filed by the plaintiff/appellant and in one of such proceedings the officer-in-charge of the Rajarhat Police Station was directed to see that no breach of peace takes place at the property with further direction upon the parties not to change the nature and character thereof. 8. The sum and substance of the plaint from its meaningful reading appears to be that the plaintiff/appellant wanted to separate its undivided share in respect of the said LR plot from rest of the coowners, who are allegedly attempting to take over the possession and/or making construction thereupon. On the conspectus of the aforesaid facts an application for temporary injunction was filed seeking temporary injunction upon the respondent nos. 16 to 67 for dealing with and/or disposing of, alienating and/or encumbering and/or creating any third party interest in a portion of the suit property and from changing the nature and character of the suit property by making any construction thereupon and/or giving effect or further effect to the purported Development Agreement dated 25.02.2023 till the disposal of the suit. 9. In the affidavit-in-opposition to an application for temporary injunction filed by the said defendant nos. 16 to 67, the defence was taken that they have purchased a piece and parcel of the land admeasuring 1307.18 decimal of land on the basis of the several registered deeds executed in favour of defendant no. 67. It is further disclosed in the said affidavit-in-opposition that the LR Dag No. 4292/5210 comprised of 631 decimal of land as claimed by the plaintiff and proceeds further that by virtue of the respective deeds they have purchased the land comprised in the said Dag and thereafter upon obtaining necessary permission, conversion, sanction they proceeded to take steps to erect the proposed G+13 storeyed building complex of 10 blocks and G+2 storeyed Club House on the said piece of land. It is further indicated therein that they already invested 20 Crores of rupees in starting with the said project upon obtaining a substantial amount of financial assistance from the financial institutions. It is alleged therein that in the month of August 2022, the said defendant no. It is further indicated therein that they already invested 20 Crores of rupees in starting with the said project upon obtaining a substantial amount of financial assistance from the financial institutions. It is alleged therein that in the month of August 2022, the said defendant no. 67 began with the soil testing, preparing the Plinth level and on March 24, 2023 a mob broke out in the project premises claiming themselves to be the associates of the plaintiff/appellant and tried to encroach upon the portion of the project premises falling within the suit premises with an attempt to install a signboard thereon. 10. Immediately, a complaint was lodged and thereafter, Title Suit No. 387 of 2023 was instituted in the Court of the Civil Judge (Junior Division), Barasart, wherein an interim order of injunction restraining the plaintiff/appellant therein from causing any disturbances and by making any invasion in the suit property or causing any hindrance into the free egress and ingress was passed on April 19, 2023 on an application for temporary injunction. It is thus contended that the instant suit has been filed as a counterblast to the said suit. 11. Such being the respective stand of the parties, argument is advanced at the Bar that the plaintiff/appellant by dint of four several deeds of conveyance purchased a well-demarcated property from the then owners and, therefore, cannot take a rebound claiming the property to be un-partitioned or in other words, a joint. On the other hand, the plaintiff/appellant contends that the deeds of conveyance executed in its favour would reveal that a portion of the larger property was conveyed, meaning thereby the property being unpartitioned and even if it is delineated by the boundaries or a sketch map appended thereto, it does not efface the characteristic of the property to be joint, as an undivided share in respect thereof is actually transferred and upon execution and registration thereof the plaintiff/appellant became the co-owner in respect thereof. 12. It is contended by the learned Advocate for the plaintiff/appellant that there has been a gross suppression at the behest of the aforesaid defendants/respondents including the respondent no. 67 in getting the sanctioned plan in respect of the entire suit property which would be evident from several documents disclosed in course of hearing of the injunction application. 12. It is contended by the learned Advocate for the plaintiff/appellant that there has been a gross suppression at the behest of the aforesaid defendants/respondents including the respondent no. 67 in getting the sanctioned plan in respect of the entire suit property which would be evident from several documents disclosed in course of hearing of the injunction application. It is sought to be contended that an application for getting a registration under RERA which is un-dated, would reveal that there cannot be any construction at the suit plot prior to 10.02.2023 when the joint development agreement entered into nor could be presumed to have commenced prior to 25.02.2023 when the power of attorney was executed in favour of the defendant no. 67. The emphasis is further put to the agreement for sale dated 14.06.2023 executed by and between the defendant no. 67 and the intending purchaser wherein they have represented and warranties to the said intending purchaser that the property is un-encumbered and there is no litigation pending against the land-owners or promoters in relation to the land. 13. On the other hand, the contesting defendants submit that the construction has come up substantially and it would be burdensome on the said defendant, if an order of restrain from completing the construction is passed and placed reliance upon the judgment of the Supreme Court in Mandali Ranganna and Ors. Vs. T. Ramachandra & Ors. reported in (2008) 11 SCC 1 . It is further contended by the said defendant no. 67 that a person, who sat over his right for a considerable period of time, should not be favoured with an order of injunction as they can be compensated in terms of money and placed reliance upon a judgment of the Supreme Court in Kishoresinh Ratansinh Jadeja Vs. Maruti Corporation & Ors. reported in (2009) 11 SCC 229 . It is further argued by the said defendant no. 67 that mere satisfaction as to the existence of a prima facie case is not sufficient to grant injunction, as the Court must be satisfied that non-grant of injunction may lead to an irreparable injury as held by the Supreme Court in Best Sellers Retail (India) Private Limited Vs. Aditya Birla Nuvo Limited & Ors. reported in (2012) 6 SCC 792 . 14. It is thus contended by the said defendant no. Aditya Birla Nuvo Limited & Ors. reported in (2012) 6 SCC 792 . 14. It is thus contended by the said defendant no. 67 that a substantial amount ranging between Rs.20 Crores and above has already been invested and a blanket order restraining the injunction should not be passed without putting the plaintiff to terms. Per contra, the learned Advocate for the plaintiff/appellant submits that the suit was filed at the stage when an attempt to raise construction is contemplated and during the currency of the suit as well as the application for temporary injunction, the construction has been hurriedly made, which from the recent photographs would evince that it is at the plinth level. According to the Counsel, there is no substantial construction that has come up as of now and unless the order of injunction is passed, it would bring an irreversible position and the compensation in monetary terms would not be sufficient. 15. A Division Bench judgment of this Court rendered in Shyam Kumar Panja & Anr. Vs. Lakhi Niwas Chittalangia reported in (2020) 1 Cal.L.T 166 is relied upon for the proposition that if a co-owner is allowed to change the nature and character of the suit property pending the suit for partition in respect of the best portion of the property, the equity may come at the time of final decree and the situation may also become irreversible. It is thus submitted that the construction being at the nebulous stage should not be permitted to continue, as there is no dissent on the factual matrix that the plaintiff is one of the co-owners in respect of the suit plot. 16. On the backdrop of the aforesaid stands taken by the respective Counsel and emerged from the pleadings filed before the Trial Court as well as this Court the seminal point involved in the instant appeal is whether a co-owner can be permitted to continue with the construction over the undivided property without the consent and concurrence of the other co-owners and whether the Court can pass an order of injunction restraining such co-owner from making any construction over the undivided property. 17. Admittedly, the property before the construction ensued was a bare land which would further be evident from the respective deeds relied upon by the parties at the time of acquiring interest therein. 17. Admittedly, the property before the construction ensued was a bare land which would further be evident from the respective deeds relied upon by the parties at the time of acquiring interest therein. It is the categorical stand of the contesting defendants that after acquiring the right, title and interest in respect of the property, steps were taken for amalgamation seeking permission and/or getting plan sanctioned for raising G+13 sotreyed building in 10 blocks together with G+2 storeyed building for Club House. The deed of conveyance executed in favour of the plaintiff would reveal that the plots of land depicted therein is out of the larger plot of land which leads to an unequivocal conclusion that the entire land comprised in the said plot was not conveyed and/or transferred. 18. The record of rights standing as on date would further make the position clear that separate khatians were opened for the respective co-owners in commensurate with the shares they held in the said plot of lands. The plot of land comprised of larger tract of land is still shown in the record of right as un-partitioned and/or undivided denoting shares of the respective co-owners and their liability to pay the tax in proportion to the shares held therein. Even if the deed indicates the demarcation of the lands yet it does not ipso facto render the undivided plot as divided one for the reason that one of the co-owners or the co-sharers cannot unilaterally partition the property without the consent and concurrence of the other co-owners. The said deed at best be recorded as divestation of their undivided right, title and interest in respect of the plot of land and not otherwise. The partition can be effected either by execution of the partition deed amongst the co-owners/co-sharers or by a decree of the Court. It would bring an anomalous situation when a co-sharer unilaterally partitions the property, as it would deprive the other co-owners to have the best portion thereof and it would not be incongruous to hold that the remaining portion may be less valuable than the portion conveyed and transferred by one of the co-owners. 19. It admits no ambiguity that other co-owner/co-sharer has right, title and interest in every part of the undivided property and, therefore, any attempt to make construction on the land in deprivation of the other co-owners/co-sharers is impermissible. 19. It admits no ambiguity that other co-owner/co-sharer has right, title and interest in every part of the undivided property and, therefore, any attempt to make construction on the land in deprivation of the other co-owners/co-sharers is impermissible. The utilization of the best portion of the undivided property would affect the right of the other co-owners and, therefore, it is imperative on the part of the Court to protect the interest of the parties in a partition suit by passing a suitable order of injunction. 20. The judgment rendered in case of Mandali Ranganna (supra) cannot be applied in the facts of the present case. In the said given case, the property was acquired way back in the year 1912 by the predecessor-in-interest of the parties thereof and the first respondent therein entered into a partition deed with the members of his family on 20.12.1971 but the petitioners therein did not join in the said deed. However, between 2002 and 2003 they were called upon to partition the said property which was refused by them; which led the suit for partition to be filed for declaration that the suit properties are joint properties of the parties thereto and their shares are required to be separated. An application for injunction was taken out that one of the parties therein was trying to change the nature and character of the suit property and also transferring and alienating the same in favour of a third party. The matter travelled to the Apex Court wherein it was noticed that the parties rightly or wrongly have made substantial construction thereupon and, therefore, any order to demolish the same or to make further construction would not be warranted on equitable principles in the following: 25. “In Seema Arshad Zaheer and Others v. Municipal Corpn. of Greater Mumbai and Others [ (2006) 5 SCC 282 ], this Court held: "30. “In Seema Arshad Zaheer and Others v. Municipal Corpn. of Greater Mumbai and Others [ (2006) 5 SCC 282 ], this Court held: "30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands." [See also Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. (2006) 1 SCC 540 ] 26. Rightly or wrongly constructions have come up. They cannot be directed to be demolished, at least at this stage. Respondent No. 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions. 27. We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The Trial Court is requested to hear out and dispose of the suit as early as possible. If any third party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is sub judice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit. Respondents must also furnish sufficient security before the learned Trial Judge within four weeks from the date which, for the time being, is assessed at Rupees One Crore.” 21. All parties must cooperate in the early hearing and disposal of the suit. Respondents must also furnish sufficient security before the learned Trial Judge within four weeks from the date which, for the time being, is assessed at Rupees One Crore.” 21. In case of Kishorsinh Ratansinh Jadeja (supra), a suit for specific performance of an agreement was filed after a gap of 19 years from the date of its execution and in such perspective the Apex Court held that the temporary injunctions are decided on an equitable principle, a person who sat over his right for a considerable period of time shall not be entitled to injunction in the following: 39. As far as the lands which the appellant and the other joint owners have been restrained from alienating by the second order dated 22nd April, 2008, are concerned, we are of the view that in the event the order of 22nd April, 2008, is set aside, the Respondent No.1 can be compensated in terms of money and no irreparable loss and injury will be caused to it on account thereof. 40. On the other hand, if the owners of the property remain restrained from developing the same, it is they, who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No.1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the Trial Court that the suit was not barred by limitation. 41. The question of conduct of the Respondent No.1 also becomes relevant, inasmuch as, having slept over its rights for more than 19 years, it will be inequitable on its prayer to restrain the owners of the property from dealing with the same, having particular regard to the fact that a large portion of the land has already been conveyed to as many as 280 purchasers who are in the process of erecting constructions thereupon. 22. 22. In Best Sellers Retail (India) Private Limited (supra), the Apex Court held that mere satisfaction as to the existence of prima facie case is not sufficient as the application for temporary injunction is intended to protect a party from the consequences of apprehended injury which cannot be repaired nor compensated by way of damages. However, in the said given case it is found that the plaintiff would claim the alternative reliefs in the form of damages and on such score the Apex Court refused to pass an ad interim order of injunction in the following: 30. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [ (1992) 1 SCC 719 ] this Court held: “Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.” 31. In the present case, the respondent no.1 itself had claimed in the plaint the alternative relief of damages to the tune of Rs.20,12,44,398/- if the relief for specific performance was to be refused by the Court and break-up of the damages of Rs.20,12,44,398/- claimed in the plaint was as follows: “I. Net Book stock amount on 28.02.2010 is Rs.1,15,97,638/-. II. Loan amount due as on 27.01.2010 is Rs.44,81,584/-. III. Amount due as per Statement of Accounts as on 28.02.2010 is Rs.20,65,176/-. IV. Projected Loss of profit on sales, for the balance 7 year term of the Agency Agreement amounts to a sum of Rs.10,31,00,000/-. V. Loss of Goodwill, Reputation including amount spent on advertisement Rs.2,00,00,000/-. VI. II. Loan amount due as on 27.01.2010 is Rs.44,81,584/-. III. Amount due as per Statement of Accounts as on 28.02.2010 is Rs.20,65,176/-. IV. Projected Loss of profit on sales, for the balance 7 year term of the Agency Agreement amounts to a sum of Rs.10,31,00,000/-. V. Loss of Goodwill, Reputation including amount spent on advertisement Rs.2,00,00,000/-. VI. Loss of amount which Plaintiff would incur for relocating the store to other place in the Brigade Road, Bangalore and to continue its business for rest of the term 7 years would amount to Rs.6,00,00,000/- along with simple interest at the rate of 24% p.a. from the date of payment till realization as the same being a commercial transaction.” The cumulative effect of the ratio laid down in the above-noted case may be summarized as under: - 23. The grant of temporary injunction is to be decided on the basis of equitable principles and, therefore, is regarded as discretion of the Court. Mere satisfaction of existence of a prima facie case may not be sufficient unless the apprehended injury which is incapable of being remedied is made out. The conduct of the parties may be one of the relevant factors in deciding an application for temporary injunction, as a party who sat over his right for a considerable period of time may not expect any order of injunction to be temporary or otherwise from the Court of equity. The moment a substantial construction has come out and the plaintiff did not take prompt steps, it would not be proper to pass an order of injunction as sufficient protection can be given to such person in the event, any third-party interest is created by executing a deed by incorporating that such alienation and/or transfer is subject to the result of the said suit. 24. On the parameters of law, let us see whether the present case squarely comes within the ambit thereof. As indicated above, the plaintiff claiming to be the co-sharer/co-owner in respect of the undivided property and the conduct of the contesting defendants would reveal that they have suppressed the fact before the authority in getting the several plots amalgamated and the plan for construction duly sanctioned. As indicated above, the plaintiff claiming to be the co-sharer/co-owner in respect of the undivided property and the conduct of the contesting defendants would reveal that they have suppressed the fact before the authority in getting the several plots amalgamated and the plan for construction duly sanctioned. It is immaterial that the portion of the plot of land in commensurate with the share held by the plaintiff shall be kept apart, as the co-owner/co-sharer is entitled to every part of the joint property. Even if the vendor of the plaintiff/appellant has delineated the share in the deed, it would be of no consequences the moment the Court found that the large tract of land is undivided and such deeds of conveyance would be regarded to be operative in respect of the shares held by the vendor as co-sharer/co-owner. 25. We are not unmindful of the proposition of law that there is a distinction between the prima facie case and prima facie title. The Court at the stage of temporary injunction is not conducting a mini trial nor making a roving enquiry over the title but primarily travel on the circumference of the prima facie case, balance of convenience and inconvenience and irreparable loss and injury suffered by the plaintiff/appellant. Any development made on the joint property affects the rights of the co-owner/co-sharer provided such construction is made on a bare land. 26. The record would reveal that the construction is at the nascent stage reached upto the plinth level which cannot be construed as a substantial construction. We, therefore, find that the Trial Court ought to have injuncted the defendant nos. 16 to 67 from making further construction in respect of the suit property until disposal of the suit. 27. However, in course of hearing, we have been given to understand that certain agreements for sale have been executed by the said contesting defendant in favour of a third party disclosing the fact that there is no litigation pending before any Court of law in respect thereof nor there is any encumbrance creating thereof. 28. We, therefore, direct the defendant nos. 16 to 67 to execute a supplemental agreement with the intending purchasers disclosing that such sale is subject to the outcome of the suit within three months therefrom. 29. 28. We, therefore, direct the defendant nos. 16 to 67 to execute a supplemental agreement with the intending purchasers disclosing that such sale is subject to the outcome of the suit within three months therefrom. 29. In view of the findings made hereinabove, the order of injunction is modified to the extent as indicated hereinabove and accordingly, FMAT 294 of 2023 is disposed of. 30. Since FMAT 306 of 2023 is also filed against the impugned order which we have sustained on the basis of the discussions made herein-above, the same is hereby dismissed.