Asgar Ali Mullick vs Arafat Ali Mullick
2021 Latest Caselaw 1338 Cal

11.02.2021

Item No.09 CP C.O. 253 of 2021

Asgar Ali Mullick vs.

Arafat Ali Mullick

Mr. Mrinal Kanti Ghosh

.....for the petitioner.

Mr. Md. Nure Jaman Mr. Mahammad Ali Mallick Mr. Jahangir Badsha

.....for the opposite party.

This revisional application has been filed by

the plaintiff in Title Suit No. 86 of 2020, pending

before the learned Civil Judge (Senior Division),

Purba Bardhaman. The plaintiff is aggrieved by the

order dated January 20, 2021, passed by the learned

District Judge, Purba Bardhaman in Misc. Appeal

No. 19 of 2020.

Mr. Ghosh, learned advocate for the petitioner,

submits that the learned Trial Judge by an order

dated October 15, 2020 passed an order of status

quo with regard to the nature, character and

possession of the schedule property being Plot No.

1726 in Mouza Belanda, P.S. Bhatar, J.L. No. 61,

Purba Bardhaman. It is submitted that the learned

Trial Judge held that the suit property comprised of

28 decimals, was being enjoyed by both the parties

but not amicably. The learned Trial Judge held that

as 10 decimals of the property was converted at the

instance of the defendant to Bastu, it could be taken

that the construction was done on the entire 10

decimals and not on the 4 decimals which was

separately purchased by the defendant. For such

reasons, the learned Trial Judge granted a status

quo with regard to the nature, character and

possession over the entire 28 decimals of land.

Aggrieved by the aforementioned order, the defendant

filed a Misc. Appeal. The Misc. Appeal was registered

as Misc. Appeal No. 19 of 2020 before the learned

District Judge, Purba Bardhaman. By the judgment

and order dated January 20, 2021, the learned

District Judge, Purba Bardhaman allowed the Misc.

Appeal, thereby setting aside the order of status quo

granted by the learned Trial Court. Aggrieved, the

plaintiff has preferred this revisional application.

It is the contention of Mr. Ghosh learned

Advocate for the petitioner that the learned lower

appellate court allowed the Misc. Appeal on a

complete misinterpretation of the plaint. It is

submitted that the fact that the defendant as a

cosharer was constructing on the entire frontage of

the undivided property would be evident from

paragraphs 4 and 5 of the plaint. It is further stated

that although the defendant alleged to have started

the construction only on the 4 decimals of land

separately purchased by him with specific

boundaries, but the conversion of 10 decimals of

land to Bastu would prove that the construction was

on the entire 10 decimals which would mean that the

defendant had encroached into the undivided portion

of the property by taking away the entire frontage.

Mr. Nure Jaman, learned advocate for the

opposite party, submits that by a deed of conveyance

executed in the year 1996, 4 decimals of land was

purchased by him which had demarcated

boundaries. He relies on the said deed and the

schedule in support of such contention. Sketch maps

have also been produced which shows that the 4

decimals of land in Plot No. 1726 had specific

boundaries butted and bounded by a pond, a main

road and other houses. Permission from the Gram

Panchayat has been relied upon, showing approval

for construction of a two storeyed house having an

area of 1216.42 sq. ft. on the ground floor and

1265.12 sq. ft. on the first floor. The record of rights

have also been produced which show that the

defendant was the recorded owner of 20 decimals of

the undivided portion, apart from the separately

purchased 4 decimals of land and the plaintiff was

the recorded owner of 4 decimals.

I agree with Mr. Ghosh on the proposition that

the cosharer cannot cover up the entire best portion

of the undivided property, but, this is a matter of

evidence. On the contrary, the defendant has relied

upon certain documents which, prima facie, reveal

that the construction is going on over the 4 decimals

which was separately purchased by him in 1996.

Such purchase is not denied by the plaintiff. The

documents produced by the defendant would prima

facie reveal that the defendant has taken permission

on the basis of the deeds and documents from all

authorities for construction of a dwelling house

measuring approximately 1216 sq. ft. on the ground

floor and 1265 sq. ft. on the first floor, which does

not spread a little more that 1.5 cottahs of land.

Yet, this is a partition suit, the learned lower

appellate court could not have decided on the right of

the defendant to construct on the suit property

without a condition attached to the same.

Under such circumstances, the order the

learned District Judge, dated January 20, 2021 is set

aside and quashed. The defendant shall be allowed to

construct exclusively on the 4 decimals of the land

which was purchased on the basis of the deed of

conveyance of 1996 from the vendors, Sk. Sahad Ali,

Sk Yaad Ali and SK. Hashmat Ali and the boundary

of which has been specifically mentioned in the

schedule to the purchase deed No.1414 dated

November 1, 1996. The defendant shall use the same

for his own use and occupation as a dwelling house

and shall not alienate the same or create any third

party interest thereon. The defendant will also not

claim any equity with regard to the said construction

and shall undertake to demolish the same in the

event the suit succeeds and the portion over which

the construction has been made, falls in the share of

the plaintiff/petitioner. Such undertaking be filed

before the learned Trial Judge within two weeks.

With regard to the maintainability of the suit as

raised by the defendant, the defendant has every

right to approach the appropriate forum by filing

proper applications. This is not an issue to be

decided by the revisional court at this stage.

Learned Civil Judge (Senior Division), Purba

Bardhaman is requested to proceed with the suit

expeditiously and dispose of the same in accordance

with law.

The observations made herinabove are

tentative in nature and shall not bind the learned

court below.

The revisional application is disposed of. There

shall be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties as expeditiously as

possible subject to compliance of all usual

formalities.

(Shampa Sarkar, J.)