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2012 Supreme(Cal) 181
High Court of Calcutta
Soumen Sen, J.
Islam Ali – Appellant
Versus
Amir Ali – Respondent
C.O. No. 663 of 2011
Decided on : March 07, 2012
S. Bhattacharya, S.T. Mina, Anwar Ali
A co-owner in possession of a demarcated portion of the suit property, pursuant to an amicable partition, can be granted equitable relief to raise construction in terms of a sanctioned building plan, without claiming any equity and subject to the result of the suit for partition.
Headnote:
PARTITION - AMICABLE PARTITION - CONSTRUCTION - CO-OWNER'S RIGHT TO POSSESSION - INJUNCTION - BALANCE OF CONVENIENCE - IRREPARABLE LOSS - CONDUCT OF PARTIES - BUILDING PLAN - SANCTIONED BUILDING PLAN - EQUITABLE RELIEF
Fact of the Case:
In a partition suit, the plaintiffs claimed to be in possession of a demarcated portion of the suit property and sought to restrain the defendant from raising construction on his demarcated portion based on a sanctioned building plan. The trial court granted a status quo order, which was upheld by the appellate court.
Finding of the Court:
The court held that once an amicable partition is accepted, equities demand that the parties in possession of their respective demarcated portions should be allowed to enjoy such portions without hindrance until a final decision is reached in the suit. The court also held that the balance of convenience and prejudice would be in favor of granting equitable relief to the defendant to raise construction in terms of the sanctioned building plan.
Issues: 1. Whether a co-owner can be restrained from raising construction on his demarcated portion of the suit property based on a sanctioned building plan? 2. Whether the balance of convenience and prejudice would be in favor of granting equitable relief to the defendant to raise construction?
Ratio Decidendi: 1. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. 2. In the instant case, the plaintiffs and the defendants accepted amicable partition and were in possession of their respective demarcated portions of the suit property. 3. The balance of convenience and prejudice would be in favor of granting equitable relief to the defendant to raise construction in terms of the sanctioned building plan, as the defendant had been in possession of the demarcated portion for a long time and had paid his respective khaznas.
Final Decision: The court modified the orders of the trial court and the appellate court to the extent that the defendant would be at liberty to raise construction strictly in terms of the sanctioned building plan without claiming any equity and subject to the result of the suit for partition. The defendant, however, was restrained from alienating, encumbering, and/or transferring the said land with the building in any manner whatsoever till the disposal of the suit.
Soumen Sen, J.
1. THE denial of a right to a co-sharer to raise construction in his demarcated portion of the land is the subject matter of challenge in this revisional application.
2. IN or about January, 2010, the opposite parties instituted a suit for partition and permanent injunction over and in respect of 9 ? decimals of the land in the suit property as described in the schedule to the plaint. The plaintiffs claimed to be the sons and daughter of one Sk. Fakir Mohammad. The suit property according to the plaintiff originally belonged to Keramat Ali since deceased and Belat Ali since deceased (hereinafter referred to as the original owners). Their names were duly recorded in the C.S. record of right. The said original owners were in exclusive possession over the suit property. They were residing and cultivating fruit bearing trees and engaged in Pisciculture. During their lifetime, the original owners amicably partitioned the suit property by reason whereof Keramat Ali became the owner of demarcated 17 ? decimals of Bastu and Pukur and Belat Ali got a demarcated 17 ? decimal of the suit property. After such amicable partition, they were enjoying their respective demarcated properties as exclusive owners thereof. Keramat Ali died intestate living behind him his wife Ammajan Bibi and three sons, namely, Sk. Fakir Mohammad (since deceased), Sk. Islam Ali and Sk. Rahul Amin as his legal heirs and representative. In or about 24th May, 1951, Sk. Fakir Mohammad purchased 9 decimals of Bastu and Pukur comprising in Dag Numbers described in the schedule from Baletan Bibi by a registered deed of kobala and, thereafter, on 21st December, 1951, sold and transferred 4 ? decimals of Bastu and Pukur out of the aforesaid 9 decimals to Rajab Ali Molla by a registered deed of kobala. Ammajan Bibi along with two sons during their lifetime sold and transferred 6 ? decimals of land in respect of the schedule property on 15th January, 1957 to Sk. Fakir Mohammad by a registered deed of Kobala and delivered vacant and khas possession of the said land to Sk. Fakir Mohammad since deceased. Thereafter on 5th July, 1963, Sk. Fakir Mohammad sold and transferred 4 3/8 decimals of Bastu land and Pukur comprising in Dag Numbers as mentioned in the schedule to Sk. Islam Ali by a registered deed of kobala.
3. THEREAFTER, Sk. Fakir Mohammad, Rajab Molla and Sk. Islam Ali sold one Cottah Bastu and Pukur comprising Dag Numbers as mentioned in the schedule on 4th June, 1969 in favour of Sk. Rahul Amin by a registered deed. Sk. Fakir Mohammad died intestate leaving behind him his two sons, namely, Sk. Amir Ali and Sk. Sayeed Ali and four daughters, namely, Farida Bibi, Hamida Bibi, Feroza Bibi and Zaita Bibi. All the three daughters, subsequently, on 1st January, 2009 transferred their rights, title and interest in respect of the suit property which they have acquired by virtue of inheritance from their father in favour of their two brothers, namely, the plaintiffs by an oral Heba in presence of their relatives and thereafter delivered khas possession thereof to the plaintiffs. By reason thereof, the plaintiffs acquired 9 ? decimals of land out of the schedule property by virtue of inheritance and different sale-deeds and had and have been in possession of the same, and the plaintiffs claimed to be in possession of the said 9 ? decimals of land and carrying on agricultural activities and using the usufructs thereof. They are also residing in the portion of the suit property. They also claimed to be paying the land revenue and other taxes. The plaintiffs contend that the name of the original owners had been originally recorded in the C.S. Record Of Right but the R.S. Record Of Right did not represent the true state of affairs as regard to the names and quantum of land and inherited shares of the heirs of the original owners in the suit property. The defendants are aware of the true facts but in spite thereof they are claiming joint possession even in resp
