Calcutta High Court (Appellete Side)
Sk. Imran Ali & Ors vs Smt. Shampa Kha & Anr on 7 February, 2022
07.02.2022
SL No.5
Court No.8
(gc)
FMA 959 of 2018
With
CAN 1 of 2017
(Old No: CAN 11739 of 2017)
Sk. Imran Ali & Ors.
Vs.
Smt. Shampa Kha & Anr.
(Via Video Conference)
The appellants are not represented nor any
accommodation is prayed for even in the second call.
The appeal is arising out of an order passed by the
learned Civil Judge (Senior Division), Ghatal on 8th
September, 2017 in an application under Order 39 Rule 1
& 2 read with Section 151 of the Code of Civil Procedure.
The learned Trial Judge on consideration of the materials
on record directed the parties to maintain status quo in
respect of the nature and character of the suit property
and not to make any kind of construction thereon till
disposal of the suit. The appellants are the defendants
Nos.1 to 5 in the suit. The appellants are aggrieved by the
impugned order that the appellants have purchased a
demarcated portion of land measuring about 14 decimal
and they have been in possession of a portion without any
interruption or interference from anybody else for a
considerable length of time. The appellants constructed
pillars surrounding the land of the appellants/defendants
2
when no objection was raised to the construction of the
said pillar.
The learned Trial Judge in the impugned judgment
had noted that in the first deed of the vendor dated 10th
March, 1977, no demarcated portion of the land was
transferred in favour of the appellants. Moreover, from the
materials on record it was not possible to infer that the
suit property has been legally partitioned and on such
consideration order of status quo was passed. It is true
that in a suit for partition, every co-owner has a right over
every inch of the undivided property unless it is
partitioned and if the facts are such that the defendants
are not in possession of the demarcated portion of the
land, any construction may disturb the possession of
every co-owner in the suit property.
Although, we are of the view that if the
plaintiffs/respondents are in possession of the demarcated
portion of the land, the Court may allow the party in
possession of such demarcated portion to raise any
construction without creating any equity in their favour as
the balance of convenience and inconvenience would lie in
favour of the party being in possession of the demarcated
portion of a land. The fact remains that the order was
passed on 8th September, 2017 and in all likelihood, the
suit may have been disposed of or may be at the final
stage of hearing. We are not inclined to interfere with the
impugned order and direct the learned Trial Judge to
dispose of the suit as expeditiously as possible preferably
within a period of eight months from the date of
communication of this order subject to the convenience of
the learned Civil Judge (Senior Division), Ghatal, in the
event suit is still pending.
The learned Registrar Administration (L&OM) is
directed to ensure the communication of this order to the
learned Civil Judge (Senior Division), Ghatal for taking
necessary steps.
With the aforesaid observation, the appeal being FMA
959 of 2018 and the application being CAN 1 of 2017 (Old
No: CAN 11739 of 2017) stand disposed of.
All parties shall act on the server copies of this order
duly downloaded from the official website of this Court.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
