Santanu Basu & Anr vs Smt. Aparna Basu & Ors
2022 Latest Caselaw 5523 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

CO. No. 288 of 2022 Santanu Basu & Anr.

Vs.

Smt. Aparna Basu & Ors.

For the Petitioners             : Mr. Sounak Bhattacharya,
                                  Mr. Sounak Mondal

For the Opposite Parties        : Mr. Chittaranjan Chakraborty.
                                  Mr. Dip Jyoti Chakraborty,
                                  Mr. Sumit Banerjee

Heard On                        : 10.08.2022.

Judgment                        : 17.08.2022.



Subhasis Dasgupta, J:-

The subject matter of challenge in this case is against the rejection

of a prayer for construction, pending decision of a suit for partition.

Mr. Sounak Bhattacharya, learned advocate appearing for the

petitioners, while proposing for construction submitted that existing

possession of the petitioners in respect of a straw thatched mud built

house had not been disputed by the opposite parties/plaintiffs vide their

written objection.

Mr. Bhattacharya further contended that the dilapidated condition

of such house under possession of petitioners had been disclosed in the

petition for construction supported by an affidavit, which also remained

undisputed by the opposite parties.

According to petitioners, the court below even in the absence of any

categorical objection against the proposed construction to be made by the

petitioners, had rejected the prayer for construction observing, inter alia,

that no bona fide reasons had been disclosed to allow the prayer of

petitioners enabling them to make change in the nature and character of

suit property under a compelling circumstances.

Incidentally, Mr. Bhattacharya submitted that the construction so

proposed to be conducted taking financial support from Government

Scheme would not extend beyond the proportionate and legitimate share

of land of petitioners in respect of the suit land, compared to their existing

possession over their mud built house, and thus further clarified that the

construction would be carried out on lessor area of land, proportionate to

their share of land in subject property.

Reliance was placed by Mr. Bhattacharya on a decision reported in

2009(2)CLJ (Cal) 153 in the case of Sanghati Pal vs. Prakash

Adhuryya & Ors. to enforce his stand that existing mud built house

under possession of the petitioners would reveal the area of the land, the

petitioners possess distinctly, over which proposed construction should

have been allowed by the court below, and with this construction, there

will be no change in the nature and character of the suit. More so the

existing order of status quo touching the suit property would not be

invaded in any manner whatsoever.

In the referred decision a purchaser of property having purchased

specific and demarcated portion of the property, in a pending partition

suit was granted liberty to raise construction within the purchased portion

of the property without claiming any equity, and further conditioned by

subject to result of partition suit.

Mr. Bhattacharya submitted the ratio of such decision would be

squarely applied over the facts and circumstances of the case, as the

existing mud built house would reveal the distinct area of land, the

petitioners possess at the moment, and over which the proposed

construction would be raised without claiming any equity therefor.

Mr. Chittaranjan Chakraborty, learned advocate appearing for the

opposite parties disputing with the submission raised by the petitioners

replied that the alleged dilapidated and worn out condition of the mud

built house could not be revealed in the learned Inspection

Commissioner's report. The plea taken by the petitioners to reveal the

existing condition of the mud built house, even went unnoticed by the

learned Commissioner, while holding inspection Commissioner.

It was strenuously argued by the opposite parties that in the

absence of any specific materials being placed before the court below, as

to whether the mud built house under possession of the petitioners

needed any imminent and urgent construction, or not, for the same

having turned out to be inevitable at the moment, there could not be any

permission granted for raising permanent construction.

Supporting the order of the court below, Mr. Chakraborty,

submitted unless the urgent need of undertaking construction was

disclosed, upon supplying sufficient materials before the court below, the

prayer for proposed construction, so as to substitute the old mud built

house was nothing but imaginary one, and as such the impugned order

would remain unaltered.

Challenging the applicability of the decision referred above, relied

upon by the petitioners; Mr. Chakraborty submitted that in the case at

hand, no demarcated portion had been purchased by the petitioners to go

for construction pending decision of partition suit.

It was contended by Mr. Chakraborty that when there was an order

of injunction granting staus quo to be maintained by the parties, in the

event of proposed construction being allowed to be raised, there would be

certainly change in the nature and character of suit, and more so, the

order of status quo would be interfered with.

Reliance was placed by Mr. Chakarborty on a decision reported in

AIR 1999 Supreme Court 2322 delivered in the case of Sree Jain

Swetambar Terapanthi Vid (s) v. Phundan Singh and Ors. to submit

that the findings reached by the court below, while making rejection of a

prayer for construction, being a product of discretion, lawfully exercised

by the court below, the same should not be upset holding it to be

erroneous finding.

In such decision, the scope of appellate court, while upsetting the

injunction order on ground that Trial Court had gone wrong in recording

prima facie satisfaction, was addressed and decided. The subject under

challenge is not against the findings reached in connection with injunction

matter.

Reliance was also placed by Mr. Chakraborty on a further decision

reported AIR 2008 Supreme Court 2291 delivered in the case of

Mandali Ranganna and Ors. vs. T. Ramachandra and Ors. to submit

that the conduct of the parties would be of relevant consideration, while

granting equitable relief.

In the referred decision, the conduct of the parties, sought to be

viewed, was decided to be kept in consideration, apart from taking

consideration of the basic elements in relation to the prayer for injunction,

while granting injunction, which is an equitable relief, unlike the facts and

circumstances involved in this case.

Profit was further sought to be obtained making reliance on a

decision by Mr. Chakraborty, reported in 2000 CalLT 254 delivered in

the case of Harendr Nath Ghosh vs. Subodh Kumar Ghosh that

petitioners without having taken consent of the opposite parties, who are

co-sharer could not be permitted to raise any construction over any

portion of the subject property under reference, simply to hinder any

effective partition or to diminish the value of the joint property.

Upon advancing such submission Mr. Chakarborty persuaded this

Court to believe that proposed construction was not the urgent need of

petitioners, and such urgent need should not be ascertained merely from

an affidavit supporting the prayer for proposed construction, in the

absence of any report revealing the endangering and dilapidated condition

of existing mud built house of defendants under their possession in suit

land.

The undenying possession is that there is an order grating

injunction directing status quo to be maintained in a partition suit. Both

the parties to this case are ordinarily expected to have their proportionate

share in the suit property requiring partition by metes and bounds.

Mr. Bhattacharya countered the decisions, cited by Mr.

Chakraborty, submitting that the facts leading to the decision were

patently distinguishable from the facts involved in this case at hand. Mr.

Bhattacharya further submitted that the ratio of the decisions referred by

the opposite parties would neither have direct relevance in the present

facts and circumstances in the case, nor would be remotely connected

with the issues raised in this case.

Having considered the submission of both sides, it appears that the

existing possession of petitioners with respect to straw thatched mud built

house could not be disputed or denied by the opposite parties. There was

a reference of mud built straw thatched house, as evident from the

learned Inspection Commissioner's report. The dilapidated and worn out

condition of the mud built house was disclosed in the petitioner proposing

for construction, which was supported by an affidavit.

The court below, by the order impugned, declined to give permission

to petitioners to raise construction for not having assigned any bona fide

reasons for the purpose, but observed in the order impugned categorically

that the existing possession of petitioners over the mud built house

remained undisputed by the opposite parties.

It is thus clear that petitioners have their possession in respect of

their existing mud built house over some undefined area of land, which

was submitted to be proportionate to the share of the petitioners to be

allocated. When there was nothing to deny the existing possession of the

petitioners with respect to their mud built house, and the condition of

which being disclosed in the petition proposing construction, the affidavit

submitted by the petitioners, in ratification of the averment disclosed in

the petition for construction, in the absence of any other things to the

contrary being established, should not be disregarded, irrespective of the

learned Inspection Commissioner's report, if there be any.

This is not the case set up by the opposite parties, vide by their

written objection, that proposed construction will be on some

advantageous portion, and for that, it would ultimately diminish the value

of subject property, and more so, the proposed construction will have

direct impact of causing hindrance to effectively distribute the properties

to co-sharers, as per their respective share by metes and bounds.

As it was assured by Mr. Bhattacharya that the proposed

construction would be undertaken on lessor area of land, as per their

existing possession, but in any case would not exceed the area of the land

proportionate to their share in the subject property, this court finds no

wrong to apply the ratio of the decision rendered by the Division Bench of

this Court, as referred by Mr. Bhattacharya in the case of Sanghati Pal

(supra), over the facts and circumstances of this case, otherwise the mud

built house under possession of petitioners may be ruined near future

pending decision of instant partition suit, with the passage of time, and

there is also chance of petitioners being rendered homeless, which is of

course against equitable the principle of law.

Since the existing possession of the petitioners with respect to their

old mud built house was not disputed by the opposite parties, by the

proposed construction, there would be hardly any chance of invading the

order granting status quo to be maintained by the parties to this case,

granted in connection with injunction application.

The impugned order dated 15th December, 2021, passed by the

learned Civil Judge (Senior Division), Diamond Harbour in Title Suit No.

252 of 2019, dealing with the rejection of a prayer for construction is set

aside.

Petitioners are permitted to raise construction within the area of

land, over which existing mud built house is there, without claiming any

equity and of course subject to the result of the suit for partition.

With this direction and observation the revisional application stands

disposed of.

Urgent photostat certified copy of this order, if applied for, be given

to the parties, upon compliance of all formalities, on priority basis.

(Subhasis Dasgupta, J.)