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2024 DIGILAW 463 (CAL)

Sambhu Bera @ Sambhu Nath Bera v. Kartik Bera

2024-03-03

BISWAROOP CHOWDHURY

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JUDGMENT : Biswaroop Chowdhury, J: 1. The petitioners before this Court are defendants in a suit for partition, and is aggrieved by the Order dated 04-03-2022 passed by Learned Civil Judge (Senior Division) Diamond Harbour in T.S. 168 of 2011 in rejecting the petitions dated 29-07-2016 filed by them for construction upon the suit property. 2. The case of the petitioners before the Learned Trial Court may be summed up thus. 3. By an application dated 29/07/2016 the Petitioner no-1 made application for constructing rooms with brick wall and concrete roof in place of Room No.1 and 1A and the petitioner no – 2 has prayed for removing the tiles and asbestos shed from the said room no-3 and 4, and to lay concrete roof therein and to construct a first floor therein. As there was commission of the suit property prior to filing of the said application, the said reports were taken into consideration by the Learned Court below. The inspection report dated 11.04.2016 reflects that room number 1 having mud wall and asbestos shed is in dilapidated condition and its measurement is 41’19’. It is further stated in the report that room No 1A is measuring 10’9’ and is also in a dilapidated condition. It also appears from the report of the Commissioner that on the eastern side of the said rooms there are four other rooms numbered as 3, 4, 6 and 8 respectively of which the room no. 3 lies in between room Nos. 4 and 8. 4. Upon considering the reports of the commissioner dated 14-03-2016, 19-12-2011 and 13-12-2021 the Learned Trial Court was pleased to reject the prayer of the petitioners by observing as follows: 5. ‘It is therefore, prima facie clear before the Court that without permission of the Court and without any sanctioned building plan such construction work has already been undertaken by the defendant Nos 1 and 2. Hence I find much force behind the argument advanced by the Learned Advocate for the plaintiffs that the defendants Nos 1 and 2 are simply trying to legalize such illegal construction by obtaining order of Court. Hence I find much force behind the argument advanced by the Learned Advocate for the plaintiffs that the defendants Nos 1 and 2 are simply trying to legalize such illegal construction by obtaining order of Court. The above mentioned judgment of the Hon’ble High Court is also found applicable to the situation in hand and as such I am of the considered view that the defendant Nos 1, and 2 having approached the Court with unclean hand are not entitled to any permission to do any construction work upon the suit property’. 6. Hence it is Ordered that the prayer for acceptance of additional W.S. by the defendant no 1, 2 and 3 is allowed on contest. The additional W.S. filed by the defendant No1, 2 and3 be accepted subject to payment of cost of Rs. 500/-to the plaintiffs. 7. Both the petitions dated 29.07.2016 filed by the defendant nos 1 and 2 respectively for construction upon the suit property are considered and rejected on contest without any cost. 8. To 12.4.2022 for showing payment of cost and framing of issues.’ 9. The petitioners being aggrieved by the Order dated 04.03.2022 passed by Learned Civil Judge (Senior Division) Diamond Harbour in T.S. 168 of 2011 has come up with the instant application under Article 227 of the Constitution of India. 10. It is contended by the petitioners that the Learned Judge erred in law in not considering the urgency in the matters as pleaded in the two applications dated 29.07.2016 and the Order of this Hon’ble Court in CO No-2304 of 2019, before rejecting the same. Petitioners have further contended that the Learned Court below should have gone through the letter of the Pradhan before rejecting the prayer of the petitioners as contended in two applications dated 29.07.2016. It is further contended that the petitioners are facing serious hasdship with their family members and if such permission as prayed for is not granted petitioners will suffer irreparable loss and injury. Pursuant to the filing of the application notice was issued upon the opposite parties. As none appeared for the opposite parties inspite of service of notice the matter was taken up for hearing in the absence of the opposite parties. 11. Heard the Learned Advocate for the petitioners, perused the petition filed and materials on record. Pursuant to the filing of the application notice was issued upon the opposite parties. As none appeared for the opposite parties inspite of service of notice the matter was taken up for hearing in the absence of the opposite parties. 11. Heard the Learned Advocate for the petitioners, perused the petition filed and materials on record. Learned Advocate for the petitioners submits that the Learned Trial Judge erred in rejecting the prayer of the petitioners for repair and construction although as per Commissioners Report rooms are in a dilapidated condition. Learned Advocate further submits that the petitioners are suffering hardships in residing at the suit property the rooms of which are in a dilapidated condition. Learned Advocate also submits that during pendency of partition suit permission for construction can be given. The following decision is relied upon by Learned Advocate: Satish Chandra Som and Ors Vs Tarak Nath Mahapatra and ors [Reported in 2004 (1) CLJ (Cal) P-430] 12. It is well settled that in a partition suit there should be maintenance of status quo with regard to nature and character of suit property. However in exceptional cases courts may permit addition or alteration subject to the result of the suit. 13. In the case of Satish Chandra Som and Ors (supra) this Hon’ble Court observed as follows: ‘In course of hearing of the application under Order XXXIX Rules 1 and 2 the affidavits were filed and were dealt with. The pleadings are to be looked into as to whether a prima facie case could be found out. It appears from the order appealed against that the learned Court below has not considered the questions raised in the affidavit-in-opposition that Monorama Pattanaik has already constructed a house and has surrounded her occupation by a boundary wall, due to which from the conduct of parties a partition can be presumed. It has also omitted to consider that the partition does not always required a document. There may be mutual partition by conduct of parties. In case a particular area is bounded by the boundary wall leaving other portion, it prima facie presupposes demarcation of the land raising a presumption of mutual partition. These are questions, which are to be weighed with in coming to the conclusion with regard to prima facie case. The trial Court seems to have overlooked the same. In case a particular area is bounded by the boundary wall leaving other portion, it prima facie presupposes demarcation of the land raising a presumption of mutual partition. These are questions, which are to be weighed with in coming to the conclusion with regard to prima facie case. The trial Court seems to have overlooked the same. That apart, the trial Court has also overlooked that the plaintiff purchased 1/14th share measuring about 1/2 decimal of land which is too insignificant. It is a principle of partition that when a property cannot be partitioned effective, in that event, the same may be compensated by owelty money. At the same time, when construction was made by Monorama Pattanaik, none of the co-sharers raised any objection. But only when the appellants are making construction, the objection is being raised but this question has to be dealt with having regard to the facts and circumstances of the case. Admittedly, the principles laid down in Israil (supra) is still holding the field. But this ratio has to be applied having regard to the facts and circumstances of each case. Admittedly, the time has changed. Now a suit may continue for generations. In case, it works hardship and equity demands, in that event, the Court, on sufficient grounds and reasons, may pass appropriate order preserving the equity. In order to ascertain the question of equity, one has to look into the facts pleaded and the conduct of the parties.’ 14. It is now well settled that a person cannot be compelled to reside in a premises which is unsafe, and every person has right to live decently in a premises, without hardship and without risks. Hence it is the basic right of a person to live in a safe condition. 15. Similarly when a person cannot reside with his family comfortably in the space of his existing accommodation he may make additional construction in accordance with law. The petitioner no-2/ defendant due to increase in the members of his family prayed for removing the tiles and asbestos shed from the said room 3 and 4 and to lay concrete roof therein. Similarly when a person cannot reside with his family comfortably in the space of his existing accommodation he may make additional construction in accordance with law. The petitioner no-2/ defendant due to increase in the members of his family prayed for removing the tiles and asbestos shed from the said room 3 and 4 and to lay concrete roof therein. Although in a partition suit status quo with regard to nature and character of property is maintained but the fact that the suit is pending for about 12 years and there is change of circumstances, it would not be reasonable to restrain the petitioner no-2/ defendant from removing the tiles and asbestos shed from the said room no-3 and 4 and to lay concrete roof therein and to construct a first floor therein. 16. However such construction should be in accordance with sanction plan by Panchayet Authority and the said petitioner no-2 will not be entitled to claim any equity and the same to abide by the result of the suit. Now with regard to the prayer of the petitioner no-1 for constructing rooms with brick wall, and concrete roof in place of room no 1, and 1A, it appears from the report of commissioner that room number-1 having mud wall and asbestos shed is in dilapidated condition and its measurement is 4’ x 19’. It further appears from the report that room No 1A is also in dilapidated condition measuring 10’x 9’. Thus from report of the commissioner it will appear that both rooms 1A and 1 are in a dilapidated condition. Thus it would not be reasonable to compel the petitioner no-1 to live in a dilapidated room with risks and hazards and restrain him from making essential repairs and renovation. Thus the prayer of the Petitioner no-1 for constructing rooms with brick wall and concrete roof in place of room No-1 and 1A should be allowed. 17. Now with regard to the observation of the Learned Trial Judge that some construction is already made during pendency of the suit this Court is of the view that this issue may be taken into consideration and decided at the time of trial on evidence thereafter necessary orders may be passed in accordance with, law. 17. Now with regard to the observation of the Learned Trial Judge that some construction is already made during pendency of the suit this Court is of the view that this issue may be taken into consideration and decided at the time of trial on evidence thereafter necessary orders may be passed in accordance with, law. The petitioner no 2/ defendant may move the Panchayet Authority to obtain sanction plan and only upon obtaining sanction plan necessary construction of first floor may be commenced by petitioner no-2 in accordance with the said sanctioned plan. 18. The petitioner No-1 may also move the Panchayet Authority for sanction plan to make necessary repairs and renovation by removing the existing structure and constructing room with brick walls and concrete roof if sanction plan is required as per law. 19. Hence this Revisional Application stands allowed. Order No-79 dated 4-03-2022 passed by Learned Civil Judge (Senior Division) Diamond Harbour in Title Suit No. 168 of 2011 rejecting prayer for construction by the petitioners is set aside. The petitioners are permitted to make the construction and necessary repairs and renovation work upon compliance of the conditions as observed hereinabove. 20. This Revisional Application stands disposed.