Calcutta High Court (Appellete Side)
Sri Dilip Shaw vs Sri Madan Prosad Shaw on 25 January, 2021
6.
25.01.2021
S.D.
S.A. 119 of 2018
With
CAN 1 of 2020 (Old No. CAN 3255 of 2020)
CAN 2 of 2020
Sri Dilip Shaw
Vs.
Sri Madan Prosad Shaw, since deceased,
Represented by his heirs and legal representatives-
Sri Samir Shaw & Ors.
Mr. Debjit Mukherjee
Ms. Susmita Chatterjee
...For the Applicant.
None appears on behalf of the respondents.
Now, the application for injunction being CAN 2 of
2020 is taken up for consideration on its merit upon hearing
learned Advocate for the plaintiff/appellant as the
respondents have not used the liberty to file affidavit-in-
opposition as per the order dated 18.1.2021. The
plaintiff/appellant had filed a suit for partition against the
predecessor of the present opposite parties/respondents in
Title Suit No. 14 of 2001, but the suit was dismissed. An
appeal being Title Appeal No. 79 of 2017 was preferred
against the judgment of dismissal by the learned Civil Judge,
Senior Division, 2nd Court, Howrah, which was also disposed
of by dismissing the appeal by the learned Additional District
Judge, Fast Track Court-III. Now, being aggrieved, the
plaintiff/appellant challenged the judgment and decree of
both the Courts below. The appeal has been admitted by the
order dated 14.8.2019 upon hearing under Order 41 Rule 11
of the Code of Civil Procedure.
It is pointed out that the opposite parties/respondents
have started changing the nature and character of the suit
property by making construction and have already
constructed a toilet in the suit property. It is also submitted
that the opposite parties/respondents have stacked building
materials for further construction in the suit property.
Accordingly, it is submitted that until or unless, an order of
injunction is passed restraining the opposite
parties/respondent from changing the nature and character of
the suit property during the pendency of the appeal, the
plaintiff/appellant will suffer irreparable loss and injury. It is
also submitted that such overt act on the part of the opposite
parties/respondents is only to dispossess the
plaintiff/appellant from the suit property. In support of such
submissions, reference to a decision in the case of Shaym
Kumar Panja & Anr. Vs. Lakhiniwas Chittiangia reported in
(2020) 1 Cal LT 166 has been referred and my attention has
been drawn to the order of the Division Bench in paragraphs
20, 21, 22 and 23 so also in paragraph 9 wherein decision in
the case of Lekjan Bibi vs. Idris Ali reported in 2015 SCC
Online Cal 2559 and also in the case of Manoj Kumar Mondal
vs. Saroj Kumar Mondal in FMAT 992 of 2018 with CAN
7787 of 2018 has been addressed to the observations that so
long as the property remains joint, no share-holder has right
to change the nature and character of the suit property and
that any attempt to diminish the value of the joint property
should not be permitted until the partition suit be finally
decided by a final decree.
Now, it is pointed out that the property in suit is a joint
property between the parties and status quo be maintained by
the parties to the suit as the appeal is continuation of the suit.
In a suit for partition, the plaintiff is a co-defendant and a
defendant is a co-plaintiff and they have possession over
every inch of the property in joint possession of them.
Therefore, it is desired that the parties do maintain status quo
in respect of the nature and character of the suit property as
on the date. However, this order is passed without prejudice
to the rights and contentions of the parties to the Appeal.
Thus, CAN 2 of 2020 is disposed of.
No order as to costs.
List the matter eight weeks hence.
(Shivakant Prasad, J.)
