Tarani Das vs Lakshmi Prasad Saw And Another
2021 Latest Caselaw 3834 Cal

19th July,

(AK)

C.O. 821 of 2021

Tarani Das Vs.

Lakshmi Prasad Saw and another

(Via Video Conference)

Ms. Ameena Kabir ...For the Petitioner.

Mr. Bhagbat Choudhuri ...For the Opposite Party.

Affidavit-of-service filed in court today be kept on

record.

The defendant has preferred the instant revisional

application against an order passed by the appellate court

whereby the revisionist-petitioner's appeal was dismissed,

affirming an order passed by the trial court whereby both

the parties were directed to maintain status-quo in

respect of their respective possession and the existing

nature and character in the suit property till disposal of

the suit.

A liberty was given by the trial court to the parties

to make necessary repair and essential construction in

the suit property without disturbing the present

possession of the parties, with the leave of the court.

It is contended by learned counsel for the petitioner

that if the map given in the sale-deed executed in favour

of the petitioner by the plaintiff/opposite party along with

other co-owners is juxtaposed with the map given by the

Commissioner in his Report, it will be evident that the

area owned by the petitioner as per the sale-deed is larger

than that on which construction is being made. As such,

the allegation of encroachment of the plaintiff's property,

in any event, cannot stand.

Learned counsel relies on an unreported judgment

passed by a Division Bench of this court on July 5, 2019

in FMAT 318 of 2018 with CAN 2399 of 2018, whereby

apparently no injunction was granted regarding the

construction being undertaken by one of the parties

thereto.

Learned counsel contends that, since the partition

Commissioner will, in any event, take cognizance of the

respective possession of the parties while allocating

shares, which is the well-settled norm, the title, if any, of

the plaintiff/opposite party shall not be hampered in any

manner by the present construction.

Learned counsel appearing for the

plaintiff/opposite party, on the other hand, places

reliance on the map annexed to the Commissioner's

Report, which is a part of the revisional application, to

harp on the issue that such construction, ex-facie, is in

violation of the extant municipal laws.

That apart, learned counsel for the opposite party

contends that, in the absence of any valid sanction plan

having been produced by the revisionist-petitioner in the

court below, the injunction granted by the courts below

was absolutely within jurisdiction of the courts and ought

not to be interfered with under Article 227 of the

Constitution of India.

It is evident from the impugned order of the

appellate court that the said order is unhappy on

reasoning, since the appellate court merely recorded the

contentions of both the sides and, in one sentence, gave a

pseudo-reasoning that, having regard to the facts and

circumstances, on considering the documents-on-record

along with the Report of the Commissioner, the court was

of the view that the appellant has preferred the appeal

with a prayer to vacate the order of injunction. Hence,

there was no adjudication worth the name at all by the

appellate court, which was the last court of facts.

Hence, on that score alone, the appellate court's

order ought to be set aside.

However, an order of remand to the appellate court

would not be beneficial to either side, since a re-

adjudication would consume more judicial time

unnecessarily, keeping in mind the limited objection

raised by the plaintiff/opposite party.

The primary premise of the plaintiff's objection to

construction by the defendant/petitioner is that the same

is violative of the municipal laws as well as without a

valid sanctioned plan.

As far as the other objection, regarding the

defendant having encroached upon part of the plaintiff's

property, is concerned, the same does not stand on prima

facie valid footing in view of the Commissioner's Report,

relied on by both sides, being clear on the point that the

construction being raised by the petitioner falls squarely

within the demarcated portion owned by the petitioner, if

the sale-deed is to be relied on.

On a prima facie view of the matter, the sale-deed

was apparently executed by the opposite party as well.

As such, the opposite party's objection as to

encroachment does not stand on good ground.

The Commissioner's Report shows clearly that the

construction is being made within the portion of the

petitioner.

However, learned counsel for the opposite party

may be justified in arguing that there is scope of violation

of municipal laws while making such construction.

However, such question cannot be adjudicated on

facts for the first time by this revisional court and was not

dealt with by either of the courts below. That apart, the

Civil Court is not the right forum for adjudicating such

disputes as to alleged violation of municipal laws.

In the light of the aforesaid observations, C.O. 821

of 2021 is allowed, thereby setting aside the order dated

December 23, 2019 passed by the Additional District and

Sessions Judge, Bolpur at Birbhum in Miscellaneous

Appeal No.15 of 2018.

However, the order of the trial court is modified to

the extent that the parties shall maintain status-quo in

respect of their respective possessions only.

The petitioner shall be entitled to carry on with any

construction on the petitioner's portion of the land-in-

question, as disclosed by the map annexed to the

Commissioner's Report filed in the court below, subject to

the petitioner adhering to municipal laws and having a

valid sanctioned plan to make such construction.

In the event the opposite party has any objection to

the legality of the sanctioned plan or alleges violation of

municipal laws by the defendant/petitioner, it will be

open to the plaintiff/opposite party to approach the

appropriate municipal forum with such grievance.

If so approached, the relevant authority under the

municipal laws shall decide upon the said dispute, upon

giving adequate hearing to both sides, in accordance with

law and irrespective of the pendency of the suit in the

trial court.

The parties as well as the court below and other

authorities shall act on the written communication of the

learned advocates for the parties, accompanied by server

copies of this order, without insisting upon prior

production of a certified copy.

There will be no order as to costs.

Urgent website certified copies of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Sabyasachi Bhattacharyya, J.)