Sri Shakti Prasad Parua vs Sri Manas Maity & Anr.

Sabyasachi Bhattacharyya, J.:-

The supplementary affidavit filed today be kept on record.

The present appeal arises against an order whereby the ad interim injunction order obtained by the plaintiff/appellant in his partition suit was vacated by the learned Trial Judge on an application filed by the defendants/respondents under Order XXXIX Rule 4 of the Code of Civil Procedure.

Learned counsel for the appellant argues that the entire suit property is mentioned in ‘Kha’ schedule of the plaint, comprised of 21 decimals of land, whereas the portion thereof occupied by the plaintiff/appellant is denoted by ‘Ka’ schedule property, measuring about 8 decimals.

The balance 13 decimals out of the total 21 decimals, it is submitted, is in occupation of the defendants/respondents as per the plaint case.

However, it is submitted that the property still remains joint as there was no partition by metes and bounds, prompting the appellant to file the present suit for partition.

It is argued that by taking advantage of the sanction plan obtained by the respondents, the respondents sought vacating of the injunction application in respect of the entire 21 decimals of the suit property, thereby leaving it open to the respondents to make construction even beyond their share of 13 decimals.

That apart, it is argued that no construction has yet been raised substantially and, as such, the balance of convenience and inconvenience is against the grant of injunction.

Learned counsel appearing for the appellant cites Israil vs. Shamser Rahman, reported at ILR XLI 436, where a Division Bench of this court observed that a co-owner who was, with the tacit or express consent of his co-sharers, in sole occupation of a portion of joint property, was not entitled to change the natur e of that possession or to use the property in a mode different from that in which it had previously been used.

It was further observed that it does not follow that because a co -owner is, with such consent, in sole occupation, he is entitled to change the nature and character of the property.

The Division Bench judgment further noted that the approach of the court to permit injunction on the impression given by a party, that the building would be constructed but the said party undertook to pull it down if ultimately the verdict of the court went against him, was a specious argument and ought not be the basis of permitting such construction.

The court also recorded that if a substantial construction was made at its own expenses by a party, in such case, the court will not, as a matter of course, order the defendants to pull down his new building at the final hearing but will give to the party injured by the erection of those buildings compensation in damages.

Thus, if construction is permitted on a joint property, the situation might be rendered irretrievable at the end of the litigation.

Learned counsel cites another unreported in the matter of Prasanta Maji and others vs. Sukhbindar Singh and others (FMAT 227 of 2022), where a coordinate Bench of this Court had held that if the injunction was refused and the respondents continued with the construction and ultimately, the appellants were able to establish their title, it may not be possible for the court to easily reverse the effect of construction and restore the land or property to the said position as it was prior to the construction. On the other hand, if an injunction was granted and ultimately the appellants lost, it would be open to the court to consider award of damages to the respondents for being unable to make construction during this period.

This is how, it was held, the balance of convenience ought to have been adjudged.

Learned counsel also cites a judgment of the Hon’ble Supreme Court in matter of Bina Murlidhar Hemdev and others vs. Kanhaiyalal Lokram Hemdev and others, reported at (1999) 5 SCC 222, where the Hon’ble Supreme Court held, inter alia, by relying on the judgment of Gangubai Bablya Chaudhary and others vs. Sitaram Bhalchandra Sukhtankar and others, reported at (1983) 4 SCC 31, that in case the respondents were allowed to set up construction for the whole land including the land involved in the dispute, the situation would become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If, on the contrary, injunction is granted as prayed for, the respondents are not likely to be inconvenienced because they were in possession of sufficient land on which they could put up construction.

Learned counsel also cites Gangubai (supra) in support of the self-same contention.

Learned counsel for the appellant next relies on Rukmani and others and H.N. Thirumalai Chettiar, a Division Bench judgment of the Madras High Court, where it was observed, inter alia, that if the respondent claims to have acquired full title to the suit property and such title comes to be questioned by other parties it may be that the court can prima facie proceed on the basis of such title and permit him to put up constructions; but, where the respondent has not claimed full title to the suit property, the court cannot permit him to put up constructions on the suit property much to the prejudice of other co-owner. Unless he has his share demarcated in a suit for partition or by any other arrangement he cannot put up constructions either on the entirety or on a portion of the property.

Learned counsel appearing for the appellant further argues that the impugned order is tainted by suppressions on the part of the respondents, who were the applicants in the Order XXXIX Rule 4 application.

Although, from the sanction plan, it appears that 24 pillars were to be set up, a local inspection report found 35 pillars to have been erected on the suit premises, in palpable violation of such sanction plan.

Secondly, in the application for vacating of injunction, the respondents had given out that they intended to erect a residential building on the suit property, whereas the sanction plan produced by the respondents betrays the fact that the same was obtained for building a residential as well as commercial structure.

It is further argued that permission to convert the subject property for the purpose of construction was obtained by the respondents in violation of an injunction order passed in Title Suit No. 91 of 2024, a suit filed by a third party, in which the appellant as well as the respondents have also been impleaded.

Thus, it is argued that the entire endeavour of the respondents was to mislead the learned Trial Judge.

Also, an undertaking was given at the time of conversion by the respondents to the effect that there was no encumbrance or pending legal complication in respect of the subject property, which is in gross suppression of the pendency of the different litigations.

Learned counsel for the appellant thus argues that by way of vacating the ad interim injunction which was being enjoyed by the plaintiff/appellant, the learned Trial Judge has virtually refused to grant injunction, thus, bringing the present matter within the ambit of the propositions laid down in the judgments which are cited by the appellant.

Learned senior counsel appearing for the respondents controverts the submissions of the appellant and argues that the alleged discrepancy in the number of pillars is easily explained by the fact that there were 24 pillars permitted by the sanction plan whereas at least 10 out of the 35 pillars which were found out by the local inspection were built only up to the ground level, for supporting a proposed underground reservoir.

That apart, it is submitted that the intended building is for the purpose of residential as well as commercial use, which is evident from the sanction plan itself, which was produced by the respondents in the trial court.

Learned senior counsel further places reliance on the purchase deed of the appellant himself, from the sketch map annexed to which it would be evident that separately demarcated (although not partitioned by metes and bounds) portions of about 8 decimals and about 13 decimals of property were sold separately to the appellant and the respondent no.1 respectively.

Thus, it would be evident from the title deed of the appellant himself that the appellant and the respondent no.1 are enjoying their separate and distinct portions of the suit property.

Learned senior counsel also places reliance on the averments made in the plaint of the appellant, from paragraph no.11 of which it is evident that the parties have been in possession of their respective separate portions of the suit property by dint of amicable arrangement/partition.

Hence, as it is evident from the sanction plan that the construction is sought to be made within the portion sold to the present respondents, the apprehension expressed by the appellant as to encroachment upon the appellant’s portion is entirely misplaced.

Learned senior counsel submits that the proposition of law laid down in the judgments cited by the appellant now stands substantially diluted by the currently prevalent judicial position, as evidenced in various judgments of the Hon’ble Supreme Court and various High Courts.

In the event substantial amounts have been invested and a sanction plan has been obtained for making a construction and the construction has already begun, it is submitted that the balance of convenience and inconvenience would lie in favour of permitting such construction to be concluded.

Learned senior counsel appearing for the defendants/ appellants then argues that even in the impugned order, the learned Trial Judge recorded categorically the submission of the respondents that they shall not raise any grievance if the portion of the land over which the construction is made by them is not allotted to them in the final decree proceeding and they will also not be entitled to claim the cost of construction from the co-sharers in whose favour that portion of the land will be ultimately allotted.

Further, the learned Trial Judge recorded that the construction to be made by the respondents would be strictly in accordance with the sanction plan.

Adding to the above, learned senior counsel points out that the conversion application was made in the month of December, 2024, whereas the injunction order passed in Title Suit No. 91 of 2024 stood vacated, that too, at the instance of the appellant, on September 24, 2024.

As such, on the date when the conversion application was made, there was no subsisting injunction, thus ruling out the allegation that the conversion order was obtained in violation of any injunction.

Upon a careful consideration of the arguments of the parties, we find substance in the contention of the respondents.

Learned senior counsel appearing for the respondents is justified in submitting that the position of law as it stood at the time when the judgments of Israil vs. Shamser Rahman (supra) and Bina Murlidhar (supra) as well as Gangubai (supra) were rendered has undergone considerable dilution in recent times.

In several cases, the Hon’ble Apex Court has been holding that if substantial construction has been made and substantial amounts have already been invested, the balance of convenience and inconvenience lies in favour of permitting such injunction, subject to appropriate undertakings and/or security being furnished.

Moreover, the facts of the present case are remarkably different from those of the cited cases.

In all the judgments cited by the appellant, the consideration was whether construction can be made over a particular portion of a joint property by one or some of the co-sharers by prejudicing and to the detriment of the equal rights of other co-sharers over such portion of the property.

In Israil vs. Shamser, despite having notice of suit, a construction was sought to be made.

However, in the facts of the present case, it is the admitted position, as depicted in the plaint of the appellant himself, that the parties have been in mutual and amicable arrangement and have been enjoying possession in respect of their separate demarcated purchased portions of the suit property to the extent of approximately 8 decimals and 13 decimals respectively.

Although there has been no partition by metes and bound, the appellant is bound by estoppel from disputing that the respondent no.1 has purchased a demarcated portion of 13 decimals of property over which the said respondent is now in exclusive possession, as is the plaintiff/appellant over his portion, as admitted in the plaint.

Thus, although there has not been any formal decree of partition or partition deed or partition by metes and bounds, fact remains that the parties have amicably agreed to the existing position.

From the sanction plan as well as the local inspection report, it is also evident that the construction sought to be made by the respondents is well within the portion occupied by the respondents themselves, as borne out by their sanction plan.

The minor discrepancy as to the number of pillars and the purpose of the construction pale into insignificance in view of no substantive right of the appellant on his admittedly occupied 8 decimals of property being prejudiced in any manner by the said construction.

It is evident that the respondents have obtained a sanction plan and have invested huge amounts and construction has already started on the premise of the same, confined to the purchased separate portion of the respondents.

Thus, there would be palpable and undue hardship on the part of the respondents if they are restrained from making construction on their demarcated (although not partitioned by metes and bounds) portion of the suit property.

In any event, since the learned Trial Judge has categorically stipulated that the construction shall be made by the respondents within their demarcated portion as per entitlement , strictly in accordance with the sanction plan, there is no reasonable basis to the supposed apprehension that the respondents will transgress their share and occupied portion of the property while making such construction.

Even otherwise, the interest of the plaintiff/appellant is sufficiently protected in the impugned order inasmuch as the submission of the respondents is recorded to the effect that t hey shall not have any grievance even if the portion on which they are constructing is not allocated to them in the final decree proceeding, as well as that they shall not claim the cost of construction from the co-sharers in whose favour such portion of the land is ultimately allotted.

In such view of the matter, we do not find any illegality or unfairness in the impugned order.

Thus, there is no scope of intervention in the present appeal.

Accordingly, FMA 1143 of 2026 is dismissed on contest, thereby affirming the impugned order, bearing Order No. 14 dated August 28, 2026 passed by the learned Civil Judge (Senior Division) at Haldia in-charge, District: Purba Medinipur in Title Suit No. 40 of 2026.

CAN 1 of 2026 is consequentially disposed of as well.

There will be no order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties upon compliance with the requisite formalities.

I agree.