The Calcutta High Court allowed an appeal filed against the judgment and decree passed in Title Appeal reversing the judgment and decree passed by Munshiff, in Title Suit. The Court observed that since the present suit is for declaration of co-sharers and injunction to restrain defendants who are also co-sharers, it is open to the court to declare also share of respective parties in the suit property, even if no prayer thereof is made, to avoid another separate suit for declaration of share of the parties.
Brief Facts:
The cause of action of the suit arose when defendant no. 1 on the strength of a permission granted by the Gram Panchayet started construction over the said undivided property and cut down some trees. The defendant/respondents contested the suit by filing a written statement and the defence case is that Satyahcaran and Harigopal Roy were absolute owners of “ka” and “kha” schedule properties by way of settlement granted by the then Zamindars and accordingly their names were duly recorded in the CS Record of Rights. The defendant denied that Manmatho Roy had any right title interest in the suit property and contended that the name of Manmatho Roy as appearing in the Revisional Settlement (RSROR) is erroneous. In view of the same, Manmatho Roy’s daughter Patal Rani did not inherit any right title or interest in the suit property. Accordingly, her son Dinabandhu Roy cannot have any right of inheritance over the same and Dinabandhu Roy had no right title or interest to sell the same in favor of plaintiff no.2 Accordingly plaintiff no. 2 has got no right title interest in the suit property.
With regard to injunction towards the construction of a building by a co-sharer in an undivided property without obtaining consent from the other co-sharers, the Appellate Court observed that without a specific suit for partition, none of the co-sharers can pray for an injunction against other co-sharers.
Contentions of the Appellant:
The learned counsel for the Appellant submitted that when there is a conflict between the CS recording and R.S. and LR recording the latter entry shall prevail.
Contentions of the Respondent:
The learned counsel for the Respondent submitted that though the plaintiff had not prayed for declaring share of the parties in the suit properties and he had only prayed for declaring him as a co-sharer in the suit property, the court below, exceeding its jurisdiction, has declared share of the plaintiff which is not just.
Observations of the Court:
On the issue of granting an injunction against the construction of a building by co-sharers in the undivided property, the Court observed that the right of a co-owner to raise construction on the common property depends on the consent express or implied of the other co-owners but when the plot is in joint possession of the co-sharers anyone of them may erect a building or raise construction thereon with the consent of the others. But if other co-sharer refused to give consent then such construction would amount to ouster and an injunction order may be passed from doing so by the court. It is settled that a co-sharer though in possession of the joint property, has no right to change the user of that property without consent of the other co-owners.
The Court said that relief not founded on the pleadings should not as a rule be granted but order VII, Rule 7 has the definite object of avoiding multiplicity of suits in cases, where relief can be granted in the facts and circumstances of the case, even if in the prayer portion it has not been distinctly pleaded. Since the present suit is for declaration of co-sharers and injunction to restrain defendants who are also co-sharers, it is open to the court to declare also share of respective parties in the suit properly, even if no prayer thereof is made, to avoid another separate suit for declaration of share of the parties. It is not the form of the prayer which matters, but it is the substance thereof, which should be looked into by the court provided all such reliefs are consistent with the averments in the plaint.
The decision of the Court:
The Calcutta High Court, allowing the appeal, held that the judgment and decree passed by the First Appellate Court is set aside and the judgment passed by the Trial Court is affirmed.
Case Title: Sudhanghsu Mohan Roy vs Sri Haradhan Roy
Coram: Hon’ble Justice Ajoy Kumar Mukherjee
Case no.: S.A. 441 of 1984
Advocate for the Appellant: Mr. Asim Datta
Advocate for the Respondent: Mr. Mrityunjoy Chatterjee
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