Sri Tarak Nath Roy & Anr vs Smt. Kusum Roy & Ors
2023 Latest Caselaw 4213 Cal

                                                                              1


                      IN THE HIGH COURT AT CALCUTTA

                       CIVIL APPELLATE JURISDICTION

                             APPELLATE SIDE



Present:

THE HON'BLE JUSTICE HARISH TANDON

            &
THE HON'BLE JUSTICE PRASENJIT BISWAS


                                F.M.A. 433 of 2023
                                   IA CAN 1 of 2023
                                   IA CAN 2 of 2023

                              Sri Tarak Nath Roy & Anr.
                                        Vs.
                               Smt. Kusum Roy & Ors.

 Appearance:


 For the Appellants      :          Mr. Kushal Chatterjee, Adv.

                                    Mr. Debrup Chaudhury, Adv.

                                    Mr. Rishav Manna, Adv.

                                    Mr. Oishik Chatterjee, Adv.

 For the Respondents :              Mr. Ayan Banerjee, Adv.

Ms. Debasree Dhamali, Adv.

Mr. Suman Banerjee, Adv.

 Judgment On            :         14.07.2023


 PRASENJIT BISWAS, J.:

The Appellants/Plaintiffs claim to be co-owners filed a suit for

declaration, partition and permanent injunction in respect of the suit

property before the trial court coupled with a petition praying for temporary

injunction against the defendants no(s). 1 to 6.

The said injunction application has been rejected by the learned trial

court on contest by passing the impugned order dated 07.01.2023. The

said impugned order is challenged by the appellants by preferring this

instant appeal.

It is the contention of the appellants that the suit property still

remains joint and undivided and no partition ever took place between the

co-sharers. Taking advantage of no demarcation of property amongst the

co-sharers the defendants are trying to construct the boundary wall by

making encroachment into the plaintiffs' property. So, the appellants under

compelling circumstances have filed application praying for injunction

against the defendants no(s). 1 to 6 in that suit pending before the learned

trial court.

The defendants denied the fact of encroachment of the plaintiffs'

property and construction of boundary wall. It is the contention of the

defendants that the appellants/plaintiffs have new three storied residential

building in L.R. Plot No. 640/952 and these respondents/defendants have

made new construction in the northern side of the said plot after getting the

plan sanctioned by the concerned Gram Panchayat. It is further stated that

the dwelling houses of both the parties are well demarcated. It is further

stated by the defendants that both the parties jointly have an old dwelling

house in the L.R. Plot No. 640/952 and some portion of Plot No. 640.

Learned Advocates for the parties were hard in the matter.

Admittedly there is no written partition deed. The case of the

appellants is that the suit property was never partitioned by meets and

bounds but the case of the defendants is that the residential units of the

plaintiffs and defendants are well demarcated and it is being enjoyed by

them separately. Of course, in order to settle the controversy, evidence will

be required and at this stage we have to proceed on the assumption that

the appellants and the respondents are co-sharers. The normal rule is that

a co-owner in possession of joint property has no right to change the user

of that property without the consent of other co-owners.

When a co-owner is in exclusive possession of joint property or part

of joint property in his exclusive possession would have to be certainly

guarded, subject, of course to restrictions that the co-owner does not carry

out any improvements of permanent measure and does not change the

nature of the property so as to put the other party at disadvantage at the

time of partition.

Our attention is drawn by the learned counsel appearing for the

respondents that the appellants have already made construction of three

storied residential unit at L.R. Plot No.640/952 and these respondents have

also made construction in the year 2022. The said submission on behalf of

the respondents is denied by the plaintiffs/appellants by submitting that

the house constructed on the southern portion of the plot does not have

any boundary wall and it was all along accessible to the other co-sharers. It

is strenuously submitted on behalf of the appellants that the respondents

have erected the boundary wall during the pendency of the suit denying the

access to the property which is still now joint and undivided. The petitioner

submits that if such a construction was allowed to continue in the

undivided property then serious prejudice will be caused to the petitioner.

After considering the rival submissions advanced by both the parties

this court feel a clear picture is required to be placed before this court and

accordingly a special officer was appointed by this court on previous

occasion who inspected the properties in question. After inspecting the

scheduled property the special officer submitted his report before this

court.

It appears from the report along with photographs submitted by the

special officer that these appellants/plaintiffs have three storied building in

the southern portion of L.R. Plot No. 640/952 which is partly covered by an

old wall from the front side entry. It further appears from the said reports

and photographs that on the same plot there is one recent origin brick

boundary wall of the defendants/respondents adjacent to the house of the

appellants and the most portion of the said boundary wall is without

plaster. We have gone through the report submitted by the special officer.

At the midst of hearing learned counsel appearing for the

respondents submitted that both the boundary walls as erected by the

parties may be demolished. Per contra learned counsel appearing for the

appellants submitted that there is a gap in the boundary wall and it is

accessible to the co-sharers/co-owners and they will keep it open for easy

ingress and egress of the other co-sharers/co-owners of the property.

After considering the report submitted by the special officer we are of

the considered opinion that both the parties have carried out construction

over the undivided portion of land although the property in dispute is joint

and never partitioned by meets and bounds. If several owners are in

possession of an undivided property none of them has a right to his

exclusive use of any portion of the property of his will and in his own favour

according to his own choice.

In view of discussion made above the respondents are hereby directed

to demolish the boundary wall as constructed by them at their own cost

within 30 days from the date of this order.

Appellants/plaintiffs are directed that they should not put any

gate/obstruction in the boundary wall as constructed by them so that it

can be easily accessible to the other co-sharers/co-owners. They should not

claim any equitable right over the said boundary wall until the learned trial

court comes to a logical conclusion of the suit pending before it.

The observations made in this order are only for the purpose of

disposal of this appeal. The learned court below will proceed on the merits

of the case upon recording evidence, if necessary.Learned trial court is

further directed to dispose of the suit preferably within six months from the

date of communication of this order without giving unnecessary

adjournments to either of the parties.

Thus, the instant appeal is hereby disposed of. Connected

applications are also disposed of accordingly.

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

Urgent Photostat certified copy of this judgment, if applied for, be

given to the parties on priority basis.

I agree.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)