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High Court Of Calcutta
M. M. Dutt, Ram Krishna Sharma
NANI BALA SAHA - Appellant
Versus
CHARU BALA SAHA - Respondent
A. F. O. D. 131 Of 1976
Decided On : 07/04/1979
INJUNCTION - PERMANENT - CONSTRUCTION OF PARTITION WALLS ON BALCONIES - BALANCE OF CONVENIENCE - INJURY TO PLAINTIFFS - HARDSHIP TO DEFENDANTS - DISCRETION OF COURT.
Fact of the Case:
Plaintiffs and defendants were co-owners of a five-storied house, divided into two portions, Lot A and Lot B, with a common passage in between. The plaintiffs sought a permanent injunction restraining the defendants from obstructing the construction of partition walls on the balconies, which were allotted to the defendants. The defendants contended that the construction of the walls would cause them hardship and inconvenience, as it would reduce the light and air, obstruct the view, and place an additional load on the balconies.
Finding of the Court:
The court found that the plaintiffs would not suffer any loss or injury if the injunction was not granted, as they had no access to the balconies and would not be able to use the small spaces on the balconies for any purpose. On the other hand, the construction of the walls would cause hardship and inconvenience to the defendants, as it would reduce the light and air, obstruct the view, and place an additional load on the balconies.
Issues: 1. Whether the plaintiffs were entitled to a permanent injunction restraining the defendants from obstructing the construction of partition walls on the balconies. 2. Whether the balance of convenience favored the grant of an injunction.
Ratio Decidendi: The court held that the grant of an injunction is discretionary with the court, and that the court should consider all surrounding circumstances, including the amount of substantial mischief done or threatened to the plaintiff and the amount of mischief the injunction would inflict upon the defendant. In this case, the court found that the plaintiffs would not suffer any loss or injury if the injunction was not granted, while the defendants would suffer hardship and inconvenience if the injunction was granted. Therefore, the court held that it was not a fit case for the grant of an injunction.
Final Decision: The court set aside the judgment and decree of the lower court insofar as they granted a permanent injunction against the defendants regarding the construction of partition walls on the balconies. The rest of the judgment and decree of the lower court was affirmed. The plaintiffs were ordered to remove the walls and the iron grill within six weeks from the date of the judgment. If the plaintiffs failed to do so, the defendants were entitled to remove the same at their own cost.
( 1 ) THIS appeal is at the instance of the defendants and it arises out of a suit for permanent and mandatory injunction.
( 2 ) THE plaintiff No. 1 is the wife and the plaintiff No. 2 Joykrishna Saha is her husband. The defendants Nos. 1 and 2 are respectively the widow and the son of one Subal Krishna Saha, since deceased, the elder brother of the plaintiff No. 2 Joykrishna Saha. There was an amicable partition of joint properties among Subal Krishna Saha, Joykrishna Saha and one Bibhuti Bhusan by a registered deed of partition dated June 2, 1954. The disputed house, which is a five storied one, situate at P-98, B. K. Pal Avenue, Calcutta was allotted to Subal Krishna Saha and Joykrishna Saha and the same was also partitioned between the said two brothers in accordance with a plan annexed to the said deed of partition and on terms and conditions mentioned therein. The house was divided into two portions.--Lot A and Lot B. Lot A, being the front portion, abutting on the B. K. Pal Avenue, was allotted to Joykrishna and Lot B, the rear portion, was allotted to Subal Krishna. A common passage, 10 ft. in width, was created in the southwestern portion leading from B. K. Pal Avenue up to the allotment of Subal Krishna and lying on the south of the allotment of Joykrishna. Lot A has since been numbered as 16b, B. K. Pal Avenue and Lot B as 16a, B. K. Pal Avenue.
( 3 ) THERE was some trouble between the two brothers in effecting the partition by metes and bounds by raising partition walls. The plaintiffs filed a suit being Suit No. 1778 of 1957 in the Original Side of this Court. That suit was eventually settled between the parties. The plaintiffs also filed another suit being Title Suit No. 19 of 1972 in the City Civil Court, Calcutta which was transferred to the Original Side of this Court at the instance of Subal Krishna. Thereafter, good feelings were restored between the parties. Subal Krishna died on Feb. 15, 1968 leaving behind him the defendant No. 1, his widow, and the defendant No. 2, his only son, as his heirs. Good feelings between the parties also continued even after the death of Subal Krishna. Fresh quarrels and disputes between the parties again started. The principal dispute between them centres round the construction of partition walls across the roadside balconies allotted to the defendants. Further, it was alleged by the plaintiffs that on Sept. 23 and 25, 1972 the defendants commenced building of an unauthorised structure on a portion of the common passage and they also encroached upon the plaintiffs' land by making a roof of an iron sheet and projecting the same against the roof of the plaintiffs' garage. It was the plaintiffs' case that the defendants had been preventing them from constructing the partition walls on the balconies. Accordingly, the plaintiffs prayed for a mandatory injunction directing the defendants to remove and demolish the constructions raised by them in the common passage and to remove the water pipes and other pipes and electric cables laid under the common passage adjoining the plaintiffs' land. Further, it was prayed that the defendants should be directed to remove the corrugated iron shed put up over the plaintiffs' garage on the south eastern corner. The plaintiffs also prayed for a permanent injunction restraining the defendants from preventing the plaintiffs from constructing the partition walls on the balconies.
( 4 ) THE suit was contested by the defendants. They denied the allegations made by the plaintiffs about the unauthorised constructions constructed in a portion of the common passage and the encroachment upon the plaintiffs' land by making a roof of iron sheet and projecting the same over the plaintiffs' garage. The defendants also made certain allegations against the plaintiffs. As to the claim for partition at the balconies, it was contended by the defendants that the same was illegal and not maintainable in law. The case of the defendants in this regard
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