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IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, PRASENJIT BISWAS, JJ.
Rosewood Real Estate Private Limited – Appellants
Versus
Saramjan Bibi & Ors. – Respondents
FMAT 294 of 2023, CAN 1 of 2023, CAN 2 of 2023
Decided on : 24-07-2023
INJUNCTION - PARTITION SUIT - STATUS QUO - CO-OWNER CONSTRUCTION - UNDIVIDED PROPERTY - EQUITABLE PRINCIPLES - IRREPARABLE INJURY - SUBSTANTIAL CONSTRUCTION - BALANCE OF CONVENIENCE - THIRD-PARTY INTEREST - DISCLOSURE OF LITIGATION - SUPPLEMENTAL AGREEMENT.
Fact of the Case:
Plaintiff, a co-owner in respect of an undivided property, filed a partition suit and sought an injunction to restrain the defendant co-owners from constructing on the property. The Trial Court passed an order directing both parties to maintain the status quo in respect of their respective possession of the suit property.
Finding of the Court:
The Court held that a co-owner cannot be permitted to continue with the construction over the undivided property without the consent and concurrence of the other co-owners. The Court further held that the grant of temporary injunction is to be decided on the basis of equitable principles and mere satisfaction of existence of a prima facie case may not be sufficient unless the apprehended injury which is incapable of being remedied is made out.
Issues: 1. Whether a co-owner can be permitted to continue with the construction over the undivided property without the consent and concurrence of the other co-owners? 2. Whether the Court can pass an order of injunction restraining such co-owner from making any construction over the undivided property?
Ratio Decidendi: 1. A co-owner cannot be permitted to continue with the construction over the undivided property without the consent and concurrence of the other co-owners. 2. The grant of temporary injunction is to be decided on the basis of equitable principles and mere satisfaction of existence of a prima facie case may not be sufficient unless the apprehended injury which is incapable of being remedied is made out.
Final Decision: The Court modified the Trial Court's order and directed the defendant co-owners to execute a supplemental agreement with the intending purchasers disclosing that such sale is subject to the outcome of the suit.
Key Points: - A co-owner cannot be permitted to continue with construction over the undivided property without the consent and concurrence of the other co-owners (!) (!) (!) . - The grant of temporary injunction is to be decided on the basis of equitable principles and mere satisfaction of existence of a prima facie case may not be sufficient unless the apprehended injury which is incapable of being remedied is made out (!) (!) . - The court ought to protect the interest of parties in a partition suit by passing a suitable order of injunction to prevent construction on undivided property (!) (!) (!) . - The trial court should have restrained the defendant co-owners from making further construction until disposal of the suit (!) (!) . - The defendant co-owners must execute a supplemental agreement with intending purchasers disclosing that the sale is subject to the outcome of the suit (!) (!) . - The appeal challenging the injunction order is dismissed (!) .
JUDGMENT :
1. Leave is granted to the learned Advocate-on-record of FMAT 306 of 2023 to implead the left out party as respondent here and now in the Memorandum of Appeal.
2. Both the appeals are taken up together for the sake of gravity and to avoid the repetition of facts as the aforesaid appeals have been filed assailing identical order no. 11 dated June 23, 2023 passed in Title Suit No. 474 of 2023 by the Learned Civil Judge (Senior Division), First Court, Barasat by which an application for temporary injunction was disposed on contest.
3. By the impugned order both the plaintiff and the defendant numbers 16 to 67 of the said suit are directed to maintain status quo in respect of their respective possession of the suit property till the disposal of the suit. The plaintiff of the said suit has filed FMAT 294 of 2023 on a limited score that the Trial Court ought to have passed an order restraining the aforesaid defendants from continuing with the construction or making any construction over and above the suit property; on the other hand, the defendant no. 67 filed an appeal being FMAT 306 of 2023 assailing the said order on a premise that there was no case made out for passing a temporary injunction even in the form of status quo with regard to the respective possession of the parties in respect of the suit premises and the Trial Court ought to have dismissed the application for temporary injunction.
4. The suit for partition and separation of share is filed by the plaintiff/appellant in FMAT 294 of 2023 in respect of LR Dag No. 4292/5210 situated in Mouza – Matigacha, JL No. 187 previously under the Police Station Barasat presently under Rajarhat with further relief in the form of a decree that the purported two development agreements both dated February 10, 2023 are illegal, null and void, bad in law and not binding upon the said plaintiff.
5. The said plaint proceeds that one Hajira Bibi @ Tarafdar Hajira Bibi, Akbar Ali Baidya, Orgila Bibi @ Abdul Argina Bibi, Baidya Ainur Bibi @ Ainur Bibi, Rashidul Baidya, Sabera Bibi and Chyera Bibi were the co-owners to the extent of 11.56% share in respect of the said LR Dag No. 4292/5210 recorded under Khatian Nos. 2665/2663/2661/2658 along with other co-owners being the defendant nos. 1 to 66. By a registered deed of conveyance dated November 25, 2014, the Hajira Bibi transferred and conveyed her interest in respect of the suit property in favour of the plaintiff/appellant herein for a valuable consideration mentioned therein.
6. By dint of three sale deeds dated November 21, 2014 Akbar Ali Baidya, Orgila Bibi, Ainur Bibi, Rashidul Baidya, Sabera Bibi and Chyera Bibi sold transferred and conveyed their interest in respect of the suit property in favour of the plaintiff and it is not in dispute that after the transfer of the aforesaid share in the property the LR record of right was corrected by incorporating the name of the plaintiff of the said suit and exercised such right upon payment of Khajna. It is further averred in the plaint that after acquiring the said right, title and interest in respect of the aforesaid suit property, the plaintiff became the co-owner/cosharer in respect thereof having an undivided share therein. It is alleged in the plaint that the defendant nos. 16 to 66 who are also arraigned as respondents in the instant appeal with their associates tried to disturb the physical possession of the plaintiff/appellant when the inspection and survey was contemplated in respect thereof. It is further alleged that the aforesaid defendants were taking all resorts and exhausting all the resources available in their hands trying to demolish the boundary wall/fencing and in course of an interaction it appears that they have entered into two development agreements dated February 10, 2023 purportedly executed in favour of the defendant no. 67 in respect of entire plot no. 4292/5210 without the concurrence or consent of the plaintiff and have also taken steps to raise a construction
A co-owner cannot be permitted to continue with the construction over the undivided property without the consent and concurrence of the other co-owners.
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