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2003 Supreme(Cal) 467
High Court Of Calcutta
D. K. SETH, RAJENDRA NATH SINHA
SANDIP KUMAR SINHA - Appellant
Versus
NIRMAL DUTTA - Respondent
F. M. A. T. 1557 Of 2003
Decided On : 09/11/2003
Ajit Kumar Panja, ANIMESH DAS, ANIRUDDHA RAY, B.BASU MALIK, PUJADAS CHAUDHARY, S.SIL, SOUMEN SEN, Tapan Kumar Dutta
The concept of apartment ownership, as recognized by the Apartment Ownership Act, deviates from and creates a concept distinct from those recognized by the Transfer of Properties Act and the Partition Act.
Headnote:
PARTITION SUIT - INTERIM ORDER - EXTENSION - VACATING - APARTMENT OWNERSHIP ACT - SCOPE AND APPLICABILITY - CONSTRUCTION OF BUILDING BY JOINT OWNERS - ALLOTMENT OF FLATS - POSSESSION AND ENJOYMENT - PRINCIPLE OF ISRAEL V. SHAMSHER - APPLICATION AND INTERPRETATION.
Fact of the Case:
Appellant and respondents jointly purchased land and entered into an agreement for construction of a building with eight flats, with appellant taking charge of construction. Appellant later became indisposed and respondents took over construction. Appellant filed a suit for partition (Title Suit No. 237 of 2002). Respondents opposed the extension of an interim order granted earlier in the suit, arguing that the construction was complete and possession had been taken by them.
Finding of the Court:
The court held that the appellant was prima facie entitled only to the allotment of one flat, and that the possession of the respondents could not be disturbed at the present stage. The court also held that the principle laid down in Israil v. Shamsher would not be attracted in the present context, where the building was already constructed and the appellant himself had acquiesced to such construction. The court further held that the concept of apartment ownership, as recognized by the Apartment Ownership Act, deviated from and created a concept distinct from those recognized by the Transfer of Properties Act and the Partition Act.
Issues: 1. Whether the interim order granted in the partition suit should be allowed to continue. 2. Whether the appellant was entitled to a right of partition. 3. Whether the principle laid down in Israil v. Shamsher was applicable in the present case.
Ratio Decidendi: 1. The court held that the interim order should not be allowed to continue, as the construction was complete and the respondents were in possession of the flats. 2. The court held that the appellant was not entitled to a right of partition, as he was only entitled to the allotment of one flat. 3. The court held that the principle laid down in Israil v. Shamsher was not applicable in the present case, as the building was already constructed and the appellant had acquiesced to such construction.
Final Decision: The court dismissed the appellant's application for extension of the interim order and dismissed the respondents' application for vacating the interim order.
( 1 ) PRAYER for extension of interim order has been made. An application for vacating the interim order has been filed by Mr. Ajit Panja on behalf of the respondents No. 1 to 5. Mr. Tapan Dutta on behalf of the respondent No. 7 has filed an affidavit-in-opposition. Now the matter is hotly contested.
( 2 ) MR. Sen opposed the taking up of the application for vacating the interim order on the ground that it is not appearing in the list and that the matter is appearing for extension of interim order and not for vacating the interim order. Be that as it may, the question now before us is as to whether the interim order should continue or not. The grant of interim order is dependant on the prima facie case being made out. When the interim order was granted, on the facts of the case disclosed by the petitioner, we found that prima facie case was made out and as such we had granted the interim order. The suit is one for partition. Normally interim orders are granted in such suit for partition in respect of allotment until the final decree is passed.
( 3 ) AT this stage, some materials have been brought out by means of an application for vacating the interim order. These are on record. We may not take up the application for vacating the interim order as contended by Mr. Sen. But the fact remains that Mr. Panja and Mr. Dutta, counsel appearing for the respective respondents, have opposed the extension of interim order. Mr. Panja in course of his submission relied on some materials, which were on record before the Court below since made part of the application for vacating the interim order. Mr. Dutta in course of his submission relied upon the affidavit-in-opposition. There cannot be any embargo preventing the Court from looking into the materials placed before it for the purpose of considering whether the interim order should be allowed to continue or not.
( 4 ) AS pointed out by Mr. Panja, it appears that some of the materials, as is disclosed, in the application for vacating interim order seem to be absent in the application for injunction order. It is contended by him that there was suppression of fact, which seems to have been mentioned in the application for vacating. However, we need not go into those questions except the admitted position.
( 5 ) MR. Tapan Dutta in his submission contended that there were writ petitions and two suits. This has not been disputed by Mr. Sen. The facts as disclosed by the learned counsel for the respective parties, on the basis of the submissions made and the materials placed before us, are briefly summarised as under.
( 6 ) EIGHT persons, namely, the appellant and the respondents had purchased a piece of land. All these persons entered into an agreement with the appellant that a building was to be constructed and the appellant would take charge of the construction and accordingly some funds were placed at his disposal. After a part of the building was constructed, according to Mr. Sen, his client became indisposed and could not attend to the construction. During this period, the other seven persons took over charge of the construction and had started construction. It is alleged by Mr. Panja and Mr. Dutta that the construction is almost complete. Whereas Mr. Sen contends, on instruction, that the construction is incomplete. He further contends that a portion has been kept open without any construction allegedly intended to be allowed to his client. Whereas Mr. Dutta contends that all portions are constructed but some finishing jobs await to be undertaken.
( 7 ) IT is pointed out that there were some litigation between the parties at least in the list of dates number of one writ petition has since been furnished, being W. P. No. 11800 (W) of 2001. In the affidavit-in-opposition, Mr. Dutta had disclosed two other writ petitions, being W. P. No. 11823 (W) of 2001 and W. P. No. 10697 (W) of 2003. It further appears that there were two suits, one being Title Suit No. 98 of 2001 an
