Form No.J(2)

IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present : The Hon‟ble Mr. Justice Sabyasachi Bhattacharyya &

The Hon‟ble Mr. Justice Uday Kumar FMA No. 1283 of 2024 +

CAN No. 1 of 2024 Sri Chandi Charan Maity -vs-

Sri Nakul Chandra Maity and another For the defendant no. 1/appellant : Mr. Raghunath Das, Ms. Monalisa Das.

For the plaintiff/respondent no. 1 : Mr. Sounak Bhattacharya, Mr. Anirban Saha Ray, Mr. Abhirup Halder.

Heard on : February 24, 2025. Judgment on : February 24, 2025.

Sabyasachi Bhattacharyya, J.:

1. The affidavits-in-opposition and reply filed in Court today be kept on record.

2. On consent of the parties, the appeal itself is taken up for hearing along with the stay application, in view of the subject matter and conspectus of the application and appeal being collateral.

3. The present appellant, being the defendant no. 1 in a suit for partition, took out an application under Order XXXIX Rule 4 of the Code of Civil Procedure (in short “the Code”) for vacating/modification of an order of ex parte ad interim status quo granted in favour of the plaintiff/respondent no. 1 by the learned Trial Judge.

4. Learned counsel for the appellant contends that, as admitted in the plaint, the plaintiff is in occupation of the Southern portion of Plot No. 1065, which is a part of the suit property, and has made construction of a dwelling house thereon in terms of mutual arrangement between the parties.

5. It is further pointed out that subsequently a dispute cropped up and there was an amicable settlement with the intervention of the local villagers to the effect that the defendant no. 1/appellant would make construction on the Northern part of Plot No. 1065 by leaving five feet wide passage to the plaintiff.

6. However, subsequently, when such construction was sought to be made by the defendant no. 1/appellant upon demolishing the previous structure standing thereon, the present suit was filed and an ad interim order of status quo obtained.

7. Learned counsel for the appellant places reliance on the averments made by the appellant in paragraph no. 5 of the application under Order XXXIX Rule 4 of the Code, where it was categorically averred that the appellant has been residing in the said dwelling house at the suit property with 12/13 of his family members and has no suitable alternative accommodation and as such, would be in great difficulty in the event the construction, which has already been started, is stopped midway.

8. It is further submitted that in paragraph no. 7 of the application under Order XXXIX Rule 4 of the Code, the defendant no.1/appellant has undertaken to restore the property to its original position in the event the plaintiff succeeds in the suit and appropriate directions are passed by the learned Trial Court.

9. It is submitted that the learned Trial Judge failed to advert to such components of the matter and acted without jurisdiction and erred in law in dismissing the petitioner‟s application under Order XXXIX Rule 4 of the Code and allowing the temporary injunction application, making the ad interim order absolute till disposal of the suit.

10. Learned counsel appearing for the plaintiff / respondent no.

1 opposes the contention of the appellant and submits that the suit was filed, inter alia, on the allegation that the appellant is constructing beyond his portion. More importantly, it is pointed out that the sanction plan annexed to the application filed in connection with the appeal shows that it was granted subsequent to the admitted commencement of the construction by the appellant. Hence, if any order is passed in favour of the appellant in connection with his vacating application, the same would tantamount to ratifying and regularizing an illegal construction, made without any valid sanction plan by the concerned Authorities.

11. Learned counsel appearing for the plaintiff/respondent no. 1 places reliance on an unreported judgment of this Division Bench in FMAT 37 of 2025 (