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2023 DIGILAW 1568 (CAL)

R. Satyanarayanamma v. R. Vijay Laxmi

2023-10-19

SUBHENDU SAMANTA

body2023
JUDGMENT : SUBHENDU SAMANTA, J. 1. The instant civil revision has been preferred against order dated 28th June, 2023 passed by the learned District Judge, Andaman and Nicobar Islands at Port Blair in Misc. Appeal No. 03 of 2023. 2. The brief fact of the case is that the present respondent has preferred a suit before the learned Civil Judge Senior Division, Port Blair for mutation, partition and declaration of right for recovery of possession of the share of the plaintiff in respect of a landed property being survey No. 3137 measuring an area of 0.0207 hectares situated at South Point Village, under Port Blair Tehsil, South Andaman District. 3. The peculiar fact of the case goes to show that the present petitioner no. 1 is the mother of the petitioner nos. 2 to 4 and the respondent. After filing of the suit, the respondent had prayed for an order of injunction before the learned Trial Court which has refused. Against the said order of refusal Misc. Appeal was preferred before the learned District Judge, Port Blair. The learned District Judge after hearing, was pleased to dismiss the application for the injunction filed in the Misc. Appeal by the respondent. 4. Being aggrieved by the said order of the learned District Judge, the respondent preferred one civil revision before this Court and the learned Single Bench of this Court has directed the learned District Judge to dispose of the appeal as early as possible. The learned District Judge has heard the appeal and passed the impugned order to the effect that “both the parties are directed to maintain status quo as to the nature, character and possession of the Suit property as on this day till the disposal of Suit. The Ld. Court below is directed to dispose of the Title Suit being No. 35 of 2023 as expeditiously as possible in accordance with law within 06 months from the date of receipt of this Order without granting unnecessary adjournment to the parties of the Suit.” 5. The petitioners being the mother and the other sisters of the respondent has preferred the instant revision with a specific fact that the suit property was belong to the husband of the petitioner no. 1 namely; R. Dhan Raj; his name was recorded in the revenue records. After demise of the said R. Dhan Raj, the name of the petitioner no. 1 namely; R. Dhan Raj; his name was recorded in the revenue records. After demise of the said R. Dhan Raj, the name of the petitioner no. 1 was recorded in respect of the suit property. At the time of the said mutation proceeding, the present petitioner no. 2 to 4 as well as the respondent have also submitted an affidavit independently containing the fact that if the name of the petitioner no. 1 was recorded, they would have no objection. 6. After recording the name of the petitioner no. 1, she has constructed a building over the said land after obtaining the necessary permission from the municipality. A huge amount of money was spent for such construction. The respondent denied to share the costs of the renovation of the property and for making the structure. Consequently, the disputes arose between the parties. 7. It is the case of the petitioners that the order of injunction passed by the learned District Judge, Port Blair is completely improper. The petitioner no. 1 being the rightful owner over the suit property cannot suffer an order of injunction. It is the further argument of the petitioner no. 1 that by virtue of the order of injunction the respondent may create disturb the possession of the petitioner over the suit property. 8. Learned advocate for the respondent submits that the suit for partition was filed. The respondent being the daughter of R. Dhan Raj has the share over the undivided property of her father. He further argued that the order of injunction passed by the learned District Judge shall not prejudice any of the parties as the order stated about maintaining status quo as to the nature, character and possession of the suit property as on the day till the disposal of the suit. 9. It is further argued that a necessary direction was made upon the learned Trial Judge to dispose of the matter within six months. So he submits that there is no illegality in the impugned order. Thus the instant civil revision has got no merit. 10. In support of his contention, learned advocate for the petitioner refer a decision of the Hon’ble Supreme Court passed in Mandali Ranganna and Others vs. T. Ramachandra and Others, AIR 2008 SC 2291 . So he submits that there is no illegality in the impugned order. Thus the instant civil revision has got no merit. 10. In support of his contention, learned advocate for the petitioner refer a decision of the Hon’ble Supreme Court passed in Mandali Ranganna and Others vs. T. Ramachandra and Others, AIR 2008 SC 2291 . I have perused the observation of the Hon’ble Apex Court, it appears that the Hon’ble Apex Court has taken out the fact of the case and is of opinion that one respondent have spent three crores of rupees, thus in facts and circumstances it would not be proper to stop the further construction. On that score, the Hon’ble Supreme Court has allowed the construction over the suit property subject to the ultimate decision of the suit. 11. The fact and circumstance of the cited case completely different to this case as it has been argued by the learned advocate for the petitioner before the Court that the construction work has completed over the suit property. Thus, the ratio of the Hon’ble Supreme Court passed in Mandali Ranganna and others (supra) is not applicable in this case. 12. The learned advocate for the petitioner has also cited another decision of the Hon’ble Supreme Court passed in Dalpat Kumar and Another vs. Prahlad Singh and Others, (1992) 1 SCC 719 wherein the Hon’ble Supreme Court has discussed about the pharases of “prima-facie case” or “balance of convenience and irreparable loss.” The discussion of the Hon’ble Supreme Court and law laid down therein is well accepted but these principle are in respect of the peculiar fact of the case which cannot as similar as this case, thus the ratio of the Hon’ble Supreme Court is not applicable in this case. 13. Heard learned advocate appearing for the parties. Perused the materials on record and also perused the impugned order passed by the learned District Judge, it is a suit for partition wherein the order of injunction was passed. The order of injunction appears to be directed to the parties to maintain status quo in respect of the nature, character and possession of the suit property. 14. It is quite clear from the plain reading of the plaint that the plaintiff has claimed for recovery of possession in respect of her share over the suit property. The order of injunction appears to be directed to the parties to maintain status quo in respect of the nature, character and possession of the suit property. 14. It is quite clear from the plain reading of the plaint that the plaintiff has claimed for recovery of possession in respect of her share over the suit property. The impugned order has mentioned about the possession of parties over the suit property. The learned District Judge is of the view that, if the appellant was not given any protection and if the respondent no. 1 is allowed to go on construction until the result of the suit, the appellant shall suffer irreparable loss and injury. 15. So after clinical observation of the order passed by the learned District Judge, it appears to the learned District Judge has actually refrained the petitioner no. 1 to make further construction over the suit property till the disposal of the suit. 16. I further make it clear that the order of the injunction was passed in the nature of status quo in respect of the nature, character and possession of the suit property as on this day. The learned District Judge observed that the injunction order is required to protect the interest of the appellant and also to restrain the petitioner no. 1 so that she may not make any further construction over the suit property. 17. I find no infirmity in the finding of the learned District Judge in passing the impugned order. I further observed that the order has directed the learned Trial Judge a specific time of six months for disposal of the suit. Let the learned Trial Judge be carried out the order. I find the petitioners would not suffer any irreparable loss if the impugned order allowed to be continued. 18. Considering the same, the instant civil revision being CO/51/2023 got no merit. I find no materials to interfere with the impugned order passed by the learned District Judge. 19. Accordingly, CO/51/2023 is dismissed.