In partition suits, prior permissions and investments by a party can outweigh claims for injunctions, especially when shared property rights are involved.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. Affidavit-of-service filed in court today be kept on record.

2. Leave is granted to the learned Advocate-on-record for the appellant to rectify the defect pointed out by the Additional Stamp Reporter.

3. The present appeal has been preferred by the defendant no.1 in a suit for partition against an order of temporary injunction.

4. The learned Advocate appearing for the appellant submits that the appellant (who is the defendant no.1 in the suit), is a teacher and purchased his share of the suit property by a registered deed.

5. Subsequently permission for conversion of the portion of the suit property, which is in occupation of the defendant no.1/appellant, was obtained duly from the concerned authorities.

6. Thereafter, mutation was also done and sanction plan was obtained by the appellant to make a G+1 construction.

7. After such sanction plan being issued and the construction having commenced and the foundation work having already been completed, the plaintiff/respondent no.1 filed the suit and obtained the impugned order of injunction.

8. It is pointed out by learned counsel for the appellant that in the written objection, such facts were clearly pleaded, but were overlooked by the learned Trial Judge.

9. Even the local inspection which was held in connection with the injunction application culminated in a report which showed that there are other constructions over the suit property as well.

10. It is submitted that the plaintiff waited till the foundation work was done after obtaining permission of conversion and sanction plan as well as mutation by the defendant no.1/appellant and only thereafter, to harass the appellant, obtained the injunction from the learned Trial Judge.

11. It is submitted that as such, the balance of convenience and inconvenience lies in favour of refusal of injunction, since the appellant, being a teacher, is of humble means and with the said limited financial capacity, he has already accumulated construction materials and obtained a sanction plan by investing a considerable amount of money.

12. Learned senior counsel for the plaintiff/respondent no.1 vehemently opposes the appeal and submits that in the event the appellant is permitted to complete the construction work, the agriculture which is being conducted by the appellant over the rest of the land would be adversely affected.

13. Learned senior counsel further submits that the permission of conversion was obtained by the defendant no.1/appellant behind the back of the plaintiff/respondent no.1.

14. Furthermore, it is argued that if a building is constructed on the said foundation by the appellant, the light of the respondent no.1 would be affected.

15. Furthermore, in the event a building is permitted to be constructed, apart from agriculture being affected, since it is well-settled that in a partition suit possession has to be honoured in the final allocation, the appellant would suffer irreparably and it would also be extremely difficult to do cultivation in the scattered balance portion of the land.

16. Upon a perusal of the materials before us, we find that the Commissioner’s report clearly indicates that even apart from the construction being made by the defendant no.1, there are several other buildings on the suit property.

17. Since it is an admitted position that the suit property is a joint property of all the parties, it is prima facie evident that some of the other co-owners than the appellant have also made constructions over their respective occupied portions.

18. Although notionally every co-sharer has ri