Form No. J(2)

In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side Present: The Hon’ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Uday Kumar FMA 184 of 2025 IA No: CAN 1 of 2025 Sk. Aref Rahaman and another Vs.

Sk. Md. Kutubuddin and others For the appellants : Mr. Mukteswar Maity, Mr. S. M. Ismail Ms. Manika Sarkar For the respondent no.1 : Mr. Anindya Halder Heard on : 21.04.2025 Judgment on : 21.04.2025 Sabyasachi Bhattacharyya, J.:-

1. On consent of both the parties, the appeal, along with the application, are taken up for hearing in view of the limited conspectus of the appeal.

2. In a suit for preemption filed under the Mohammedan Law by the plaintiffs/appellants, the learned Trial Judge, by the impugned order, has refused to grant ex parte ad interim injunction.

3. Learned counsel for the appellants submits that the impugned order is devoid of reasons and that the defendant no.1/respondent no.1, who is the primary contesting respondent, could not in any event have acquired any right over any demarcated portion of the property, as the property was never partitioned by metes and bounds.

4. It is argued that as such, the respondent no. 1 cannot be permitted to make construction over and/or alienate any portion of the property of his choice, since all the co-owners have equal rights over every inch of the suit property till pre-emption is granted.

5. Learned counsel for the defendant no.1 submits that a substantial portion of the construction has already been completed and only the plastering and certain works of civil nature are left to be done. It is also submitted that the defendant/respondent no.1 is residing with his family in the said building and, as such, at least the plastering and the civil works may be permitted to be completed. Learned counsel relies on the photographs annexed to the affidavit-in-

opposition for such purpose.

6. We find from the affidavit-in-opposition as well as the affidavit-in-

reply filed today that the position as sought to be made out by the respondent no.1 is not credible. From the photographs annexed to the affidavit-in-opposition itself, it is clear as daylight that none is inhabiting the said property, since no signs of habitation are found from the photographs which are annexed to the affidavit-in- opposition, which has been affirmed by the respondents themselves as lately as on March 21, 2025.

7. Moreover, we find that neither the walls nor the entire roof of the ground floor has been completed sufficiently for anybody to inhabit the said property. In the absence of any walls, gate, or complete boundary and/or any window or door, we do not find any reason to accept the contention that the respondent no.1 is living at the premises at present. The photographs clearly prove otherwise, since even the roofs, which have been partially constructed, are still supported by bamboo props. Hence, since the construction is still in a completely inchoate stage and there is no question of anybody residing there at the present, we are not inclined to permit the respondent no.1 to complete the construction at a portion of the property of his choice, keeping in view that the property is joint and the respondent no.1, even by virtue of his purchase, cannot claim exclusive rights or title in respect of a particular demarcated portion of the property at this juncture.

8. That apart, the impugned order is vitiated by complete absence of any reasons and/or any consideration of the relevant yardsticks for grant or refusal of injunction. Neither the components of prima facie case nor the parameters of the grant of injunction in a preemption case have been adverted to by the learned Trial Judge. The learned Trial Judge also failed to take into consideration the urgency involved, since from the photographs annexed to the affidavit-in-opposition it is evident that construction is being undertaken by respondent no.1 in a particular portion of the still-joint property.

9. Also, the balanc