IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Sugato Majumdar SA/42/2009 Nasim Begum & Ors.

VS Sahana Nayek & Ors.

For the Appellant : Mr. Rabindra Nath Mahato, Adv.

Mr. Aritra Shankar Ray, Adv.

Heard on : 05.02.2026 Judgment on : 12.02.2026 Sugato Majumdar, J :

The instant Second Appeal is filed against the judgment and decree dated

26/08/2008 passed by the Learned Additional District Judge, Second Court at Midnapore, District: Midnapore (West) in Title Appeal No. 24 of 2007 affirming the judgment and decree dated December 20, 2006 passed by Learned Civil Judge, Senior Division, First Court at Midnapore, District: Midnapore (West) in Title Suit No. 169 of 1994.

The original suit was for partition. Admittedly the Appellant/Plaintiff and the Respondents/Defendants are co-owners. The pleadings in the plaint trace out the title of the Appellant/Plaintiff. It is alleged that the Respondent/Defendant no. 1 had forcibly started raising construction and also installed an iron shutter gate and electric connection in illegally constructed house in the suit plot. There was also a prayer for grant of mandatory injunction removing the constructions so made by the Respondent/Defendant no.1.

The Respondent/Defendant no. 1 contested the suit by filing written statement, refuting the allegations, however, admitting that the Plaintiff and the Defendant/Respondent are co-owners.

The Trial Court decreed the suit on contest in part as against the Respondent/Defendant no. 1 and ex parte against the Respondent/Defendant no. 2 and 3 and passed the preliminary decree of partition.

The Appellant/Plaintiff preferred an appeal which was dismissed by the Appellate Court. The Appellate Court observed that the Appellant/Plaintiff failed to prove that the construction as alleged has been made exceeding the share of the Respondent/Defendant no. 1.

At the time of admission of the appeal, the following substantial question of law was framed:

“Whether the Learned Judges of the Court below substantially erred in law in declining to pass a decree for mandatory injunction in view of the specific allegation that the Defendant no. 1 has raised construction on the South Western portion of the suit property without sanction plan and blocking the access to the Plaintiff to the road?”

The Learned Counsel for the Appellant vehemently argued that the Trial Court as well as the Appellate Court should pass order demolishing the structures made by the Respondent/Defendant no. 1. The said structure and construction, it was submitted, prevented the Appellant/Plaintiff to enter into the suit property.

PW-1 was examined and cross-examined before the Trial Court. In course of examination-in-chief is stated that the Defendant no. 2 had constructed his house on the South Northern corner of the suit property. In course of cross-examination, among others as stated that the suit property consists of 23 decimals of tank. PW-1 could not state how much of the suit tank was covered with water and how much was the bank of the tank. He further stated that there was no road beside the suit plot. There is no statement made by the said witnesses that is entry into the suit property has been blocked by the said construction.

It is alleged that the construction was made without sanctioned plan. In case of making construction without sanctioned plan necessary steps may be taken against such wrongdoers by approaching the civic authorities. That itself doesn’t warrant passing of mandatory injunction. The Learned Appellate Court rightly held that the Respondent/Plaintiff might have constructed the house without exceeding his share in the suit property but that cannot be ascertained without partition by metes and bounds.

On perusal of the concurrent findings of the Trial Court as well as the First Appellate Court, this Court finds no justification in interference with the reasoned orders.

Accordingly, the instant appeal is dismissed on merit with all pending ap