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Judgment
Sabyasachi Bhattacharyya, J.:
We admit the appeal and take it up for disposal in view of the short points involved.
In view of the defendants/respondent nos. 3 and 4 (unserved respondents) not being affected by the outcome of the appeal, service on the said respondents is dispensed with.
Learned counsel for the defendant/appellant contends that the learned Trial Judge, while dismissing the application filed by the defendant/appellant under Order XXXIX Rule 4 of the Code of Civil Procedure, made an observation that although from the photographs attached to the written objection filed by the plaintiffs it transpires that some construction work had already been completed by the appellant up to the roof level, since mixed questions of fact and law were involved, the ad-interim order was not vacated.
It is contended that in the facts of the case, the appellant has already constructed up to the roof level of the ground floor and undertakes not to make any further construction above the roof level, subject to being permitted to cast the roof and complete the construction up to the ground floor level.
It is also pointed out that initially an ad-interim order was granted, against which an appeal was preferred, which met with a dismissal. However, the application under Order XXXIX Rule 4 of the Code was made on subsequent cause of action due to substantial hardship being suffered by the appellant.
Learned counsel appearing for the plaintiffs/respondents opposes such prayer and argues that subsequent to the impugned order, the plaintiffs/respondents came to know that the appellant is raising the construction unlawfully, by obtaining a sanction plan only after the ad interim order of injunction was passed by the learned Trial Judge, thereby flouting the said order of ad interim injunction.
However, upon query of the Court, learned counsel for the plaintiffs/respondents submits that these facts were not before the Trial Court at the time of passing of the impugned order, since the plaintiffs/respondents were not aware of the said facts at the relevant juncture.
Upon a consideration of the arguments of parties and the materials before us, we find that it is an admitted position that the defendant/appellant has already made substantial construction of a single storey on the suit premises up to the roof level; only the finishing touches are left to be given.
There is nothing on record to show that such construction has been made beyond the share of the appellant.
Since construction has already been made up to the said level, considering the balance of convenience and inconvenience, we are of the opinion that the ground floor level construction ought to be permitted to be completed by the appellant by casting the roof and finishing the walls and/or affixing of doors, windows etc.
However, such construction shall be without prejudice to the rights and contentions of the parties.
In such view of the matter, FMA 817 of 2026 is allowed on contest against the plaintiffs/respondents.
The impugned order, bearing Order No. 20 dated May 15, 2026 passed by the learned Civil Judge (Senior Division), at Ghatal, District –Paschim Medinipur in Title Suit no. 73 of 2025, is hereby set aside, granting liberty to the defendant/appellant to complete the construction up to the roof level of the ground floor on the suit premises, by casting the roof, completing the walls and affixing doors and windows if necessary. However, it is made clear that the defendant/appellant shall not claim any special equity by dint of such construction and shall, in the event so directed by the learned Trial Judge at the final hearing of the partition suit, from which the present appeal arises, demolish such construction at the appellant’s own cost. The construction shall be completed at the own cost of the appellant, strictly in accordance with the sanction plan, without prejudice to the rights and contentions of the parties to the suit.
CAN 1 of 2026 is consequentially disposed of as well.
It is expected that the learned Trial Judge shall dispose of the pending temporary injunction application as expeditiously as the business of the said Court permits. Both parties will be at liberty to bring on record subsequent events, if any, in connection with the injunction application, by way of formal pleadings.
No order as to costs.
Urgent Photostat certified copies of this judgment, if applied for, be supplied to the parties upon compliance of requisite formalities.
I agree.