Khokan Chandra Karmakar vs Chandan Bhowmik And Ors

[1] This appeal has been admitted for consideration of following substantial questions of law:

"(i) Whether a co-sharer‟s suit can be dismissed for non-joinder of the other co-share?

(ii) Whether the finding returned by the appellate court that the construction was carried on 1998 is based on evidence or not?"

[2] Appeal is filed by the original plaintiff. He had filed Title Suit No.2 of 2009 before the learned Civil Judge, Jr. Division, Agartala for a declaration that the construction made by the defendant No.1 on Schedule 'B' land was illegal. He should be permanently injuncted from carrying on such construction and the construction already carried out should be demolished. The plaintiff had purchased a land situated in Mouza-Indranagar, Tahashil-Indranagar, Revenue Circle-Sadar under the registered deed dated 17.03.1999. The defendant No.1 and his brother were the owners of the land adjoining to that of the plaintiff. According to plaintiff in the last part of the October, 2008 the defendant No. 1 had added one baranda to an old dwelling house situated on the northern side of Schedule 'A' land. This baranda was covered by half wall on four sides. The additional construction was done without keeping minimum distance from the northern border of the land which was barely 2 ft. away from the common boundary between the lands of plaintiff and defendant No.1. He had also constructed a sanitary latrine along with the new construction which was barely 1 ft. and 8 inches away from the said boundary. According to the plaintiff, these structures were constructed illegally, breaching the building regulations of Agartala Municipality and the same were required to be demolished.

[3] The defendant No.1 filed a written statement contending that the latrine was constructed way back in the year 1998 keeping sufficient space from the boundary line. This construction was carried out before the plaintiff purchased his land. Even the baranda was constructed before such purchase by the plaintiff. At the time of purchase of his land the plaintiff was aware about existence of such structures. It was further contended that such construction was carried out when the land fell within the Indranagar Gram Panchayat. At the relevant time there was no provision for obtaining any permission or approval of the plan. It was only with effect from 1st April, 2004 that the land came within the jurisdiction of Agartala Municipal Council. He had merely repaired the damaged structure of the baranda and the dwelling hut and had not added any new structure.

[4] The Agartala Municipal Council filed its written statement stating that part of the construction of the defendant No. 1 was within the boundary area and was not permissible.

[5] Both sides led evidence mostly oral. The trial Court had raised following issues:

"1. Whether there is any cause of action in the suit?

Whether the plaintiff is entitled to a decree of declaration that the construction made by defendant No.1 on schedule „B‟ land is illegal?

Whether the plaintiff is entitled to an order of mandatory injunction directing the defendant N o.1 to demolish/dismantle the illegal construction made by him on schedule „B" land?

Whether the plaintiff is entitled to a decree or order of permanent injunction restraining defendant no.1 from discharging in sewage water through the land of the plaintiff, i.e., schedule „A‟ land?

Whether the plaintiff is entitled to any relief/reliefs in this suit?"

Issue No.1 was answered in favour of the plaintiff. Issues No.2 to 4 were answered against the plaintiff. Suit was dismissed. While deciding the issues No. 2 to 4 jointly, learned Judge first held that the construction of the defendant No.1 was in existence prior to the purchase of the adjoining land by the plaintiff. The learned Judge thereafter applied the principle of promissory estoppel, according to which the plaintiff would be prevented from raising any objection to such construction. The learned Judge was also of the opinion that the land was jointly owned by the defendant No.1 and his brother and, therefore, the suit was barred by non-joinder of necessary party.

[6] The first appellate Court dismissed the appeal confirming the findings of the trial Court, particularly with respect to the existence of the construction when the plaintiff had purchased his land against which the present second appeal has been filed in which as noted above two questions of law have been formulated.

[7] At the outset, I may record that the learned trial Judge was not correct in invoking the principle of promissory estoppel. Merely because a certain structure was existing on a adjoining land when the plaintiff purchased his land, would not preclude him from raising legal objection to such structure if it was otherwise not in accordance with rules and regulations. The principle of promissory estoppel had no application.

[8] Having said that, I find that the finding that the construction was in existence since the year 1999 is a pure finding of fact. As noted, both sides had relied heavily on oral evidence. Two Courts below assessed the evidence and came to the conclusion that the plaintiff had failed to prove that the defendant No.1 had freshly carried out such construction sometime in the year 2008. The Courts below accepted the defendant No.1's stand that the dwelling unit with baranda and a separate latrine existed since 1999 and the defendant No.1 had merely carried out repair work in the year 2008. This finding of fact which I do not find perverse, assumes significance because admittedly the land came within the jurisdiction of Agartala Municipal Council only in the year 2004. Till then the Municipal bye-laws would not apply. The plaintiff has not produced anything on record to suggest what building regulations and restrictions if at all prevailed when the land was within the gram panchayet area. The gram panchayet was also not joined as party defendant. In absence of gram panchayet there was a duty on the part of the plaintiff to show how as per the then prevailing building rules the construction in question was illegal.

[9] Defendant No.1 was a joint owner of the property along with his brother. If his contention that construction was in existence since long, his brother would also be a necessary party since any direction for demolition of such construction would affect his interest. Even if the defendant No.1 had carried out some repair work on the existing structure, demolition altogether would hurt both the co-owners.

[10] In the result, both the questions are answered against the appellant. Appeal is dismissed. Pending application(s), if any, also stands disposed of.