Calcutta High Court (Appellete Side)
Aleya Bibi And Ors vs Mirjanagar Bajar Jame Masjid Bibi ... on 12 December, 2022
12.12.2022
Sl.No. 11
Ct.No.03
Amalranjan
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
FMAT/422/2022
With
CAN/1/2022
Aleya Bibi and Ors.
Vs.
Mirjanagar Bajar Jame Masjid Bibi & Ors.
Mr. Mohinoor Rahaman
Ms. Maria Rahaman
Ms. Iqra Rahaman
...for the appellants/plaintiffs
Mr. Mahamudul Hassan
Mr. Zeeshan Rahman
...for the defendant no.1/
respondent.1
Ms. Indrani Pal
Mr. Abhijit Pal
...for the respondent nos. 2-10
Re: CAN/1/2022
We admit the appeal.
As the point involved is not very complicated
and for the ends of justice, we proposed to hear
it out dispensing with all formalities.
The suit in the learned court below is for
declaration of title and partition between the
parties. The title to some very large portions of
the suit property is hotly disputed.
In one of such portions, there is a mosque.
The appellants/plaintiffs as well as the
respondents claim title to it. Each of the two
groups relies on a deed of transfer. The mosque
as it stands now is a G-level structure, as
submitted by learned counsel for the respondent
no. 1. The first floor has been constructed, but
is not complete; plastering, painting etc. work is
going on.
In the midst of this, the respondents/
defendants have started constructing the second
floor.
The appellants/plaintiffs seek an order of
injunction from this court restraining them from
making this construction.
The learned court below in its impugned
judgment and order dated 22nd September, 2022
has, inter alia, said:
"Therefore, considering the principle of
balance of convenience and inconvenience,
methinks, this a fit case to refuse to grant
any relief to the plaintiffs in the form of
injunction. However, the construction, if
any, made by the defendant no. 1, will be
subject to the result of the suit and no
equity can be claimed.
Hence, it is
ORDERED
That the petition U/o 39 r 1 and 2 r/w
Section 151 of CPC is rejected on contest.
To 04/1/23 for framing of issues."
In a partition and administration suit,
where the plaintiffs have been able to, prima
facie, show some title to the property, usually the
court does not permit any construction work to
be proceeded with unless the title to the property
is determined by it and the property distributed
to the owners on partition (see Prasanta Maji &
Ors. Vs. Sukhbinder Singh & Ors, reported in
AIR 2022 Cal 307 and Sopan Maruti Thopte &
Anr. Vs. Pune Municipal Corporation & Anr.,
reported in AIR 1996 Bom 304).
In this case, the learned judge of the learned
court below has tried to carve out an exception
to the above principles on facts by referring to an
agreement dated 24th February, 2018 in which
the appellants/plaintiffs nos. 5 and 6 have
consented to the erection of the mosque by the
defendant no. 1.
The learned judge also held that possession
of the said part of the property is with the said
defendant no. 1.
Learned counsel for the appellants very
strongly denies the agreement dated 24th
February, 2018, alleging that it is a fabricated
document and no consent was granted by his
clients.
We are told that the suit is ready for trial
after completion of the discovery procedure.
All these questions regarding title to the
property, validity of the agreement dated 24th
February, 2018 and so on will be decided in the
suit.
We direct that a final decree of partition be
pronounced by the learned court below, latest by
31st July, 2023.
Having regard to the above general
principles of law regarding the reluctance of the
courts to permit construction in the partition
suit and also taking into account the fact that
the respondents have almost completed the first
floor, we direct that the respondent no. 1 shall
be permitted to complete the construction of the
first floor by doing repairing, renovation,
plastering and painting work etc.
As regards the second floor, the respondents
may proceed with only the preliminary work and
not any major construction work till 31st July,
2023.
If for some reason, the learned court below
is unable to pronounce the final decree by 31st
July, 2023, the respondents shall be at liberty to
apply to the learned court below for permission
to proceed with the construction of the second
floor. The learned court below on consideration
of the, prima facie, case balance of conveyance
and inconvenience etc. shall determine the
application in accordance with law, as
expeditiously as possible.
The impugned judgment and order dated
22nd September, 2022 is modified to the above
order.
The appeal and the connected application
are, accordingly, disposed of.
( Biswaroop Chowdhury,J. ) ( I. P. Mukerji,J. )
