The main legal point established in the judgment is that the possession of the petitioners over the existing mud built house, the condition of the house, and the potential risk of being rendered homeless were key factors in permitting the construction.

JUDGMENT

Subhasis Dasgupta, J. - The subject matter of challenge in this case is against the rejection of a prayer for construction, pending decision of a suit for partition.

2. Mr. Sounak Bhattacharya, learned advocate appearing for the petitioners, while proposing for construction submitted that existing possession of the petitioners in respect of a straw thatched mud built house had not been disputed by the opposite parties/plaintiffs vide their written objection.

3. Mr. Bhattacharya further contended that the dilapidated condition of such house under possession of petitioners had been disclosed in the petition for construction supported by an affidavit, which also remained undisputed by the opposite parties.

4. According to petitioners, the court below even in the absence of any categorical objection against the proposed construction to be made by the petitioners, had rejected the prayer for construction observing, inter alia, that no bona fide reasons had been disclosed to allow the prayer of petitioners enabling them to make change in the nature and character of suit property under a compelling circumstances.

5. Incidentally, Mr. Bhattacharya submitted that the construction so proposed to be conducted taking financial support from Government Scheme would not extend beyond the proportionate and legitimate share of land of petitioners in respect of the suit land, compared to their existing possession over their mud built house, and thus further clarified that the construction would be carried out on lessor area of land, proportionate to their share of land in subject property.

6. Reliance was placed by Mr. Bhattacharya on a decision reported in 2009 (2)CLJ (Cal) 153 in the case of Sanghati Pal vs. Prakash Adhuryya & Ors. to enforce his stand that existing mud built house under possession of the petitioners would reveal the area of the land, the petitioners possess distinctly, over which proposed construction should have been allowed by the court below, and with this construction, there will be no change in the nature and character of the suit. More so the existing order of status quo touching the suit property would not be invaded in any manner whatsoever.

7. In the referred decision a purchaser of property having purchased specific and demarcated portion of the property, in a pending partition suit was granted liberty to raise construction within the purchased portion of the property without claiming any equity, and further conditioned by subject to result of partition suit.

9. Mr. Bhattacharya submitted the ratio of such decision would be squarely applied over the facts and circumstances of the case, as the existing mud built house would reveal the distinct area of land, the petitioners possess at the moment, and over which the proposed construction would be raised without claiming any equity therefor.

10. Mr. Chittaranjan Chakraborty, learned advocate appearing for the opposite parties disputing with the submission raised by the petitioners replied that the alleged dilapidated and worn out condition of the mud built house could not be revealed in the learned Inspection Commissioner's report. The plea taken by the petitioners to reveal the existing condition of the mud built house, even went unnoticed by the learned Commissioner, while holding inspection Commissioner.

11. It was strenuously argued by the opposite parties that in the absence of any specific materials being placed before the court below, as to whether the mud built house under possession of the petitioners needed any imminent and urgent construction, or not, for the same having turned out to be inevitable at the moment, there could not be any permission granted for raising permanent construction.

12. Supporting the order of the court below, Mr. Chakraborty, submitted unless the urgent need of undertaking construction was disclosed, upon supplying sufficient materials before the court below, the prayer for proposed construction, so as to substitute the old mud built h