Calcutta High Court (Appellete Side)
Sri Ananda Prosad Pandey @ Pare & ... vs Smt. Sabita Ghosh & Ors on 12 January, 2021
S/L 15
12.01.2021
GB
C.O. 33 of 2021
Sri Ananda Prosad Pandey @ Pare & Anr.
Vs.
Smt. Sabita Ghosh & Ors.
(Through Video Conference)
Mr. Ajay Debnath,
Mr. Sujit Saha,
Mr. Devranjan Das,
Mr. Swagata Dutta.
... for the Petitioners.
This revisional application has been filed by the
plaintiffs in Partition Suit No.44 of 2017 being aggrieved by
an order dated October 9, 2020 passed in Misc. Appeal
No.10 of 2018 by the learned Additional District Judge, 3rd
Court, Dakshin Dinajpur at Balurghat.
By the order impugned, Misc. Appeal No.10 of 2018
was allowed thereby rejecting the application for temporary
injunction filed by the plaintiffs. The learned Civil Judge
(Senior Division), Dakshin Dinajpur, Balurghat allowed the
application for temporary injunction directing the plaintiffs
and the defendant no.1 to maintain status quo in respect of
the nature, character and possession of the suit property.
Aggrieved by the aforementioned order, the defendant
no.1 preferred Misc. Appeal No.10 of 2018. By the judgment
impugned, Misc. Appeal No.10 of 2018 was allowed and the
order of status quo passed by the learned Judge was vacated
and the application for injunction filed by the plaintiffs was
rejected.
It is submitted that the defendant no.1 was trying to
construct a multistoried building on the suit property in
respect of which a partition suit is pending between the
parties.
Prima facie, having gone through the records, I find
that the defendant no.1, Sabita Ghosh has admitted to be
constructing a multistoried building, that is, a market
complex on the undivided .09 decimals of land on the suit
property which is admitted to be a joint property and no
partition has been effected. It is also on record that the said
Sabita Ghosh gave an undertaking before the learned trial
Judge that if it was found that the building was on a portion
of the plaintiffs' share, then the same would be demolished.
However, as this is a market complex, third party rights will
be created, the undertaking if implemented will affect such
rights. In a partition suit constructions can be permitted to
the limited extent for enjoyment of personal residential
house or for repairing etc with a direction that no parties can
claim equity over such construction but when a commercial
complex or a market complex is constructed, the question of
creation of third party rights will also arise.
Under such circumstances, status quo with regard to
the nature, character and possession of the suit property can
be maintained till April 30, 2021.
Prima facie, I find that the learned appellate court was
swayed by the long pendency of the suit which amounted to
financial hardship to the defendant no.1, if she was not
allowed to construct as per the sanctioned plan under the
Municipal Act.
It is also submitted that the defendant no.2 has filed a
separate partition suit being Title Suit No.95 of 2017 with
respect to the self-same property and an order of status quo
has also been granted in respect thereof.
Petitioners are directed to serve copies of this
revisional application along with a server copy of this order
upon the opposite party Nos.1 and 2 within seven days and
file affidavit-of-service on the next date. As the other
opposite parties have not preferred the Misc Appeal, service
upon them is dispensed with.
List this matter on March 9, 2021 at 2.00 p.m.
(Shampa Sarkar, J.)
