Monowara Bewa & Ors vs Md. Faijullah Mondal
2021 Latest Caselaw 2176 Cal

86       19.03.21
sd

Ct .9.                                       SAT 191 of 2019

                          Monowara Bewa & Ors. Vs. Md. Faijullah Mondal


                               Mr. Haradhan Banerjee
                               Md. Y. Ali
                                                 ..For the appellants.
                               Mr. S. De
                               Mr. B.K. Samanta
                                                ..For the respondent.

Let affidavit of service filed in Court be kept with

the record.

Re: CAN 1 of 2021

This application is taken up for hearing.

The defendant/appellants have prayed for stay of

execution proceeding being Case No. 218 of 2019 pending

in the Court of the learned Civil Judge (Senior Division), 2nd

Court at Malda arising out of judgment dated 12th May

2016 and decree dated 19th May 2016 passed in O.C. Suit

No. 187of 2009.

The backgrounds leading to this application may be

stated as follows:-

" The plaintiff/respondent had filed a suit being O.C.

Suit No. 187/2009 in the court of the learned Civil Judge,

Junior Division, 2nd Court, Malda, inter alia, stating that -

(a) Several properties including the suit property

being all that 49 decimals of land within Dag No.

1229 situated within Mouza-Chota Sujapur, P.S.

Kaliachak, District: Malda previously belong to

his father Hazi Hafijuddin Mondal and his name

was so recorded in RSROR. Upon his death, his

property was inherited by his wife, Jamila Bewa,

three sons - Md. Lutfullah, Md. Imdadullah

Mandal (original defendant), Md. Faijullah

(plaintiff) and two daughters Amena and Fatema;

(b) A deed of partition was executed between the

said heirs on 11.01.1977 by which each of these

heirs acquired distinct shares in the inherited

properties. The plaintiff and the original

defendant Md. Imdadullah Mandal acquired

jointly shares in equal proportion being 24½

decimals each in the present suit property but

the same was never demarcated between them.

The plaintiff contended that the name of the

plaintiff and the original defendant separately

recorded in LRROR records in respect of suit

property.

(c) The plaintiff alleged that the defendants without

any demarcations are trying to make

constructions over some portion of land within

the suit property which are nearer to a road

adjacent to the suit property and prayed for

decree of permanent injunction against the

defendants restraining them from making any

construction or house or changing the nature

and character of suit property until demarcation

or until further partition is affected, other

equitable remedy including costs of the suit."

The suit was filed on behalf of

plaintiff/respondent and the trial court decreed the

suit declaring right, title, interest in favour of plaintiff

restraining the defendants from making any

permanent construction or use or changing the

nature and character of the suit property until

demarcation and partition is effected between them

and plaintiff. The judgment of the trial was affirmed

in appeal taken on behalf of the present appellants.

Now being aggrieved the appellants/defendants

have filed the instant appeal which has been

admitted on 18.02.2021 on formulation of

substantial question of law to the effect as to whether

the suit simplicitor for permanent injunction

restraining the co-sharer from making any

construction at the undivided property without

seeking any relief in the form of partition and

separation of share, is hit by the proviso to Section

34 of the Specific Relief Act.

The substantial question of law has to be heard on

its merit. But this Court finds from the ordering

portion of the judgment impugned passed by the trial

court that admittedly the parties are co-sharer and

admittedly there is no partition of the suit property

by meats and bound. Therefore, what is directed to

maintain status quo in respect of nature , character

and possession of the suit property and parties to the

suit will not part with their share or transfer any

piece of land out of the suit property to any third

party till the disposal of the appeal.

This order is passed, however, without prejudice to

the rights and contentions of the parties.

Thus CAN 1 of 2021 is disposed of.

There will be, however, no order as to costs.

Since the matter involved pure question of law, the

appellant is directed to prepare requisite number of

informal paper books within four weeks.

LCR be brought by Special Messenger the cost of

which be borne by the appellants.

Let this matter appear in the monthly list of May

2021 under the heading 'Final Hearing'.

(Shivakant Prasad, J. )