Sri Sudam Sahoo vs Nalini Debnath & Ors.

Sabyasachi Bhattacharyya, J.:-

We admit the appeal and take up the same for hearing in view of the short questions involved.

The present appeal has been preferred against an order of temporary injunction granted in a partition suit filed by the plaintiff/respondent no.1.

Learned counsel appearing for the defendant no.5/appellant argues that Aparna, the alleged vendor of the plaintiff/respondent no.1, sold a demarcated property to the plaintiff/respondent no.1. Accordingly, the suit property is not joint, as claimed in the partition suit.

Moreover, it is argued that the appellant has invested huge amounts of money and obtained a sanction plan for making a construction over his portion of the property, which is also a demarcated portion.

By virtue of the impugned injunction order, the learned Trial Judge restrained any change in the nature and character of the suit property, thereby causing immense hardship to the appellant as well as financial loss.

Learned counsel further argues that the impugned order does not satisfy the three tests of grant of injunction inasmuch as there is no specific recording as to a prima facie case having been made out, balance of convenience and inconvenience being in favour of grant of injunction and/or that any irreparable injury would occur in the event injunction is not granted.

Learned counsel further argues that the plaintiff/respondent no.1 resorted to incorrect averments in the plaint.

In view of the relief in the appeal having been sought only against the plaintiff/respondent no.1, we dispense with service of notice on the other respondents apart from respondent nos.18 to 29, who are already represented before us through counsel and, as such, are deemed to have notice.

Learned counsel for the plaintiff/respondent no.1 contends, by placing reliance on paragraph no. 7 of the injunction application, that by dint of attempted construction, the appellant is seeking to destroy as well as encroach upon a passage adjacent to the property exchanged by Aparna, one of the original co-owners, in favour of the plaintiff/respondent no.1.

As such, in the event the construction is permitted, the respondents will be deprived of such passage.

Even otherwise, learned counsel points out that in paragraph no.17 of the written objection filed by the defendant no.5/appellant to the injunction application, it has been alleged that the registered deed of exchange executed in favour of the plaintiff/respondent no.1 by Aparna Das is a fraudulent deed.

It is contended that hence, the appellant has implicitly admitted the existence of the deed but assails the same on the ground that it is fraudulent, which is a subject-matter of trial.

Learned counsel further argues that since Aparna Das herself was a co-owner of the subject property, although she has transferred a demarcated portion of the property in favour of the plaintiff by dint of the deed of exchange, in the absence of any partition of the property by metes and bounds, it cannot be said that either of the parties has exclusive title in any portion of the property.

In support of his arguments, learned counsel for the appellant cites Sm. Labanya Bala Debi vs. Sm. Parul Bala Debi and others reported at 77 CWN 272, where a learned Single Judge of this court had observed, inter alia, that in the said case, there was a common owner who had transferred specific portions out of the entire plot with defined areas and boundaries to different purchasers on different dates although mentioning his proportionate share with reference to the entire jama.

It was further held that it is well-settled that to establish jointness, that is, in the said case a tenancy in common, all co-owners must have equal rights of possession co-extensive with the entire property although their shares may be either defined or undefined.

Learned counsel also cites Sk. Samser Ali vs. Serina Bibi reported at 2012 (2) CHN 694, where another learned Single Judge of this court had observed, inter alia, that a well-demarcated portion was sold in the said case and when an original owner has sold the well-demarcated portion it does not attract Section 14 of the West Bengal Land Reforms Act, 1955 (for short “the 1955 Act”).

However, with respect, none of the said judgments or the propositions laid down therein are applicable to the present case.

In view of Section 14 of the 1955 Act, unless a property is partitioned by metes and bounds, either by way of a partition decree passed by a competent civil court or a registered deed of partition, the jointness of the property is not disturbed, irrespective of any of the co-owners having sold a portion of the property with demarcation.

Insofar as the judgments in Labanya Bala Debi (supra) and Sk. Samser Ali (supra) are concerned, in both the said cases, there was a single original owner who had transferred specific portions out of his total property to different purchasers.

As such, the question of Section 14 of the 1955 Act being attracted did not arise, as a single owner, in any event, has the right to demarcate and segregate portions of his total property and sell those separately to third parties.

However, in the present case, the plaintiffs have categorically made out a case on oath that Aparna Das, the original co-owner who had exchanged her share of the suit property with the plaintiff, was herself a co-owner in respect of the total property.

Thus, the jointness of the total property, of which Aparna herself was a co-owner, was never severed.

Although the defendant no.5 has every right to controvert such contentions by bringing on record cogent evidence in the suit, fact remains that it is a subject-matter of trial on evidence and cannot be conclusively decided at the stage of disposal of the injunction application.

Insofar as the defendant no.5/appellant having obtained a sanction plan is concerned, upon query of the court, we are apprised by learned counsel for the appellant that no construction has yet been commenced in terms of the said sanction plan.

Thus, the balance of convenience and inconvenience is in favour of grant of injunction, particularly in the teeth of the plaintiffs’ allegation that if such construction is permitted to be undertaken by the defendant no.5/appellant, the common passage adjacent to the plaintiffs’ property would be encroached.

Although the trial court, while coming to its conclusion, was somewhat deficient in categorically adverting to the three tests for grant of injunction in specific words, it is trite law that the Appellate Court, if agreeable with the conclusion arrived at by the trial court, can supply further reasons.

Even otherwise, the trial court dealt with the respective contentions of the parties and the germane materials on record and passed a reasoned order.

Hence, on the additional grounds as attributed above, we find that the learned Trial Judge was justified in grant of injunction, since not only has a prima facie case to go for trial been made out by the plaintiff/respondent no.1, the balance of convenience and inconvenience is in favour of grant of injunction in the light of the above discussions.

Also, in the event a construction is permitted to be made by the defendant no.5/appellant on a portion of the suit property of his choice, the plaintiff may suffer irreparable injury and the situation may turn irreversible when the partition suit is ultimately decided finally.

Thus, we do not find any scope of interference with the impugned order.

Accordingly, FMA 967 of 2026 is dismissed on contest against the plaintiff/respondent no.1, thereby affirming the impugned order, bearing Order No.7 dated June 8, 2026 passed by the learned Civil Judge, Senior Division, Second Court at Contai, District-Purba Medinipur in Title Suit No.210 of 2026.

CAN 1 of 2026 is also disposed of accordingly.

In view of the urgency involved on the part of the defendant no.5/appellant, we express hope and trust that the learned Trial Judge shall endeavour to dispose of the suit as expeditiously as possible, preferably within one year from the date of communication of this order to the learned Trial Court.

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.