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2016 Supreme(Cal) 729
IN THE HIGH COURT OF CALCUTTA
Siddhartha Chattopadhyay, J.
Haradhan Pramanik - Petitioner
Versus
Chaturbhuj Pramanik & Ors. - Opposite Party
C.O. No. 1614 of 2015
Decided on : 19-01-2016
For the Petitioners:Mr. Hiranmoy Bhattacharya and Mr. Kamal Mishra, Advocates.
For the Opposite Party :Mr. B.R. Sidharth, Advocate.
A co-sharer has the right to make constructions for his better enjoyment even though the property is not partitioned, but such construction would be subject to the result of the suit.
Headnote:
INJUNCTION - SUIT FOR PARTITION - ORDER 39 RULES 1 & 2 CPC - SUMMARY
Fact of the Case:
Plaintiff filed a suit for partition of the suit property and sought an ad interim injunction restraining the defendants from constructing on the property. The defendants contended that they had the right to make constructions for their better enjoyment even though the property was not partitioned.
Finding of the Court:
The court held that while disposing of an application for injunction, the higher courts should consider only the documents and averments filed at the time of moving the application. The court also held that a co-sharer has the right to make constructions for his better enjoyment even though the property is not partitioned, but such construction would be subject to the result of the suit.
Issues: Whether the defendants had the right to make constructions on the suit property even though it was not partitioned.
Ratio Decidendi: The court held that a co-sharer has the right to make constructions for his better enjoyment even though the property is not partitioned, but such construction would be subject to the result of the suit.
Final Decision: The court dismissed the plaintiff's revisional application and affirmed the orders of the lower courts refusing to grant an ad interim injunction.
Siddhartha Chattopadhyay, J.
Doubting the correctness of the order dated 13.04.2015 passed by the learned Additional District Judge, Contai in connection with Misc. Appeal No. 12 of 2015, the petitioner/plaintiff has come before this Court.
2. Learned Counsel appearing on behalf of the petitioner contended that the learned Courts below failed to consider that the opposite party is raising construction in excess of their share and that too in the best portion of the suit property. According to him, if no injunction order is passed, he would be highly prejudiced. He further stated that the learned Trial Court as well as the learned First Appellate Court are totally confused as to ‘prima facie title’ and ‘prima facie case’.
3. Learned Counsel appearing on behalf of the opposite party contended that both the Courts below appreciated the factual aspects and legal aspects in its proper perspectives and so the impugned order does not warrant any interference.
4. To come to a finding factual aspect of the case is to be relooked. Petitioner’s case is such that the suit property originally belonged to Hemanta Pramanik and Basanta Pramanik. The said Hemanta Pramanik transferred his share by registered deed to one Bhupati Pramanik, who in turn, transferred the ‘Ka’ Schedule land out of a share in ‘Kha’ Schedule land to his son Rabin Pramanik by a registered deed of gift. Rabin Pramanik became the owner by virtue of the said deed of gift and transferred the said land in favour of the plaintiff by registered sale deed. The defendant/respondents Nos. 1 to 3 are the legal heirs of Basanta Pramanik and respondents Nos. 4 and 5 acquired some shares in ‘Kha’ Schedule property through register deeds. According to the plaintiff/petitioner, he is enjoying the property along with other co-owners. Due to inconvenience in possessing the said land he had requested the defendants/opposite party to effect partition of the suit land by metes and bounds. His such proposal received a cold reception. On the other hand, the defendant/opposite party has raised construction in the portion of the suit land which is more than their share in the undivided suit plot. So he had filed application.
5. While disposing of the said ad interim injunction, learned First Appellate Court below has mentioned that no document in support of the case has been filed by the petitioner. The plaintiff/petitioner also failed to produce any document to show that the opposite party has engaged some labourers to make construction over the suit land. A Coordinate Bench of this High Court has appointed a special officer to submit a status report in respect of the suit property.
6. The said special officer has submitted his report along with the photographs to substantiate his report. From the report itself as well as after having a glance to the photographs, I find that some sort of constructions had been made there and those are recent in nature. It is also in the report that on the date of visit to the site no construction work was going on.
7. Learned Counsel appearing on behalf of the opposite party has contended that a co-sharer has the right to make construction over properties for his better enjoyment in spite of the fact that the said property is not partitioned by metes and bounds. According to him, if it is found that he has illegally raised some constructions beyond his share in that case he would not seek any equity.
8. It is well settled principle of law that while disposing of the application under Order 39, Rule 1 and 2 by the higher Courts, the said Court shall consider the documents and averments which have been filed at the time of moving the said application. The documents which were not filed in the trial Court, that cannot be considered at the time of hearing miscellaneous appeal. Learned Counsel appearing on behalf of the opposite party has cited a decision of this Court reported in (2014) 3 WBLR (Cal) 318 (Shrimati Satu Bala Dassi & Ors. v. Chaturanan Saha & Ors.)
