M/L.2.

November 3, 2025.

.

MNS

FMA No. 1398 of 2025

+

CAN 1 of 2025

Sri Gurudas Mallick and another

Vs.

Subhendu Sekhar Mallick and others

Mr. Tanmoy Mukherjee,

Mr. Rudranil Das

… for the defendants/appellants.

Mr. Kaushik Dey,

Mr. Debdipto Banerjee

…for the plaintiffs/respondent nos. 1 and 2

1. On the prayer of learned counsel for the

plaintiffs/respondent nos. 1 and 2, leave is granted to the said respondents to file their Vakalatnama by

November 6, 2025.

2. In view of arguable questions being involved in the

matter, we admit the appeal.

3. Upon hearing learned counsel for the parties, we

find that the issues involved in the interim application are same as those in the appeal itself and as such, instead of relegating the parties to a long-drawn hearing, we take up the appeal itself for

hearing.

4. The present challenge arises out of an order of

temporary injunction granted at the behest of the

plaintiffs/respondent nos. 1 and 2.

5. In view of the other respondents not being directly affected by the outcome of the present appeal, service of notice of appeal on the said respondents is dispensed with.

6. Since the plaintiffs/respondent nos. 1 and 2 are represented through counsel, we take up the appeal itself for hearing.

7. The plaintiffs/respondent nos. 1 and 2 have filed a partition suit claiming about 1/9^th share in the suit property, which comes to around 145 square feet.

8. On the other hand, as per the admitted case in the plaint and the injunction application, at least 7/9^th share of the suit property belongs to the defendant no.1/appellant no. 1.

9. The appellants had already started the construction of their dwelling house on the suit property, apparently after demolishing the previous mud-built structure standing thereon. At this juncture, the suit was filed and the impugned order of injunction, in the form of status quo regarding nature and character of the suit property, was obtained by the plaintiffs.

10. Learned counsel for the appellants argues that even if the suit is decreed in favour of the plaintiffs, the plaintiffs can at best get share to the extent of about 145 square feet in the property, which would not enable them to make any construction on such miniscule portion. As such, on the face of the records, it is apparent that the remedy of the plaintiffs may at best lie in owelty money.

11. That apart, learned counsel for the appellants submits that since the appellants have already demolished their previous residential mud-built structure and the construction of their new dwelling house has been started and raised up to the lintel level, injunction at this stage would stack equities against the grant of injunction.

12. Learned counsel for the plaintiffs/respondent nos. 1 and 2 disputes the contentions of the appellants and submits that the appellants are trying to encroach upon more than their share of the suit property and to build the structure on the front portion of the suit property, which is the best part of the property.

13. That apart, it is submitted that the sanction plan obtained for such purpose is in the name of appellant no. 2, who does not own 7/9^th share of the property.

14. Upon hearing learned counsel for the parties, we find substance in the contentions of the appellants to the effect that even the plaintiffs/respondent nos. 1 and 2 are successful in the suit, their shares would be confined to about 1/9^th of the suit property, which comes to about 145 square feet. Such miniscule portion would not permit any independent construction by the respondent nos. 1 and 2.

15. On the other hand, the appellants have already demolished their mud-built structure and are seeking to build a residence on the property, which circumstance, in our opinion, would balance the equities in favour of the appellants.

16. In any event, the appellants submit that they are willing to forego any special equity or right in their favour merely by virtue of making such construction.

17. Accordingly, upon hearing learned counsel for the parties, we are of