Sailendra Baske vs Bhabani Bala Devi and Others

S.S. Ganguly, J.—This is an appeal from the order no. 33 passed on 4/11/89 in Title Suit No. 109 of 1989 by the Id. Second Assistant District Judge, Bara-sat. The facts leading to the present appeal may be summarised as follows : Admittedly Plot NO. 111 appertaining to R.S. Khatian to. 38 of Mouza Hridaypur under P. S. Barasat having an areas of 28 decimals belonged to Hariram Nathani and others. Admittedly Haradhan Chatterjee (the predecessor-in-interest of defendants nos. 1 and 2), Gouri Shankar Chatterjee (the predecessor-in-interest of the plaintiff respondents) and Haridas Chatterjee (the vendor of the defendant-appellant) took settlement of 7 decimals each out of the said disputed plot no. 111 from Hariram Nathani and others. In the recent revisional settlement operations Haradhan''s 7 decimals were specifically recorded under Khatian no. 1309, that of Gouri Shankar under Khatian no. 880 and that of Haridas under Khatian no. 1307. Haradhan''s 7 decimals were inherited by his son Subodh and his two daughters Rajlakshmi and Pardma Rani from whom the defendants nos. 1 and 2 received it under a deed of gift. Gouri Shankar''s 7 decimals descended upon his heirs and legal representatives who are the plaintiff-respondents and the present defendant-appellant acquired the 7 decimals of Haridas Chatterjee by a registered deed of purchase executed on 28/10/83. The appellant started building a pucca house on his purchase of 7 decimals of land when the suit mentioned above was instituted by the plaintiff-respondents for a partition of the disputed plot and also for an injunction restraining the appellant from continuing with the construction of his house. After filing the suit the respondent also made a prayer for temporary injunction which was opposed from the side of the appellant. The points taken in defence appeared to be the following :

The appellant purchased demarcated 7 decimals out of the disputed plot and not any share therein. He was not, therefore, a co-sharer of the plaintiff-respondents in respect of the disputed plot no. 21. After his purchase he surrounded his purchased portion by a pucca boundary wall and he has been paying the due of the Government and municipality on account of the same, separately.

There was a partition between the original licencees being Haradhan, Gouri Shankar and Haridas a long time ago in terms of which they possesed separate portions of the disputed plot exclusively and separately from each other. The suit for partition, therefore, is bound to fail.

The heirs of Gouri Shankar i.e. the plaintiff-respondents transferred their 7 decimals appeataining to Plot No. 111 to an adjoining school being Sushila Bala Devi Adarsha Bidyapith and the said school has been using this land as its play-ground. Thus the plaintiff-respondent has no locus-standi to institute the suit.

On a consideration of the facts and circumstances of the case and the materials produced before him the Id. Second Assistant District Judge allowed the respondent''s application for temporary injunction. Hence, this appeal.

It is urged from the side of the appellant that the Id. Judge allowed the respondent''s application without properly considering the facts and law involved in the present case.

The first point taken from the side of the appellant as stated above is that his vendor as well as the two other licencees took settlement of specific demarcated portions out of the disputed plot and that they possessed these portions exclusively. This is admitted more or less from the side of the respondents. Thus in para 1 of the plaint it is clearly stated that Haradhan Chatterjee after taking settlement of 7 decimals out of the disputed plot at a proportionate yearly rental of 0-9-11 paise was in exclusive possession in respect of the same and further that in the R. S. Khatian No. 1309 he was recorded as the 16 annas owner of the said seven decimals. From the paras 5 to 8 of the plaint it appears that on the lease being made in their favour, Haridas Chatterjee and Gouri Shankar Chatterjee also were in exclusive possession of the lands leased out to them separately and that in R. S. Khatian Nos. 1307 and 880 they were recorded 16 annas owners of the said lands.

In the circumstanecs even from the averments of the plaint it becomes quite clear - at least prima facie - that the lessees were given in lease separate portions out of the disputed plot and not undemarcatec separate shares therein, that they possessed their separately demarcated portions in exclusion of one another and paid rent therefore separately and that their exclusive title to and possession of their separate leaseholds were duly recognised by the new R. S. Khatian opened separately for each of them. In the circumstances stated it becomes difficult to understand wherein lay the jointness of the lessees entitling any of them to sue the other two for partition. What applies to the original lessees also applies to their successors in title and prima facie, therefore, it appears that the plaintiff-respondents had no locus standi to file and maintain the suit for partition. The question of passing an order of temporary injunction in such a suit does not arise at all.

As regards the second point it is the case of the appellant that there was an amicable partition between the three lessees a long time ago and as such they ceased to be the co-sharers of each other. It is urged from the side of the respondents that there is no evidence of any kind to show that there was really such a partition. We are inclined to agree. There is indeed no evidence not even a stray statement in any of the papers and documents filed assertinb that there was ever any partition amicable or otherwise amongst the lessees. This much, however, is certain that the lessees were in exclusive and separate possession of their leaseholds comprising 7 decimals within the disputed plot. They possessed in this way ever since the leases were created. The question is if under such circumstances the appellant can be allowed to go on with the construction of his house.

The learned Advocate for the respondent contended that since there was never any regular partition by metes and bounds the appellant should not be allowed to go on with his construction. He cites Israil & Ors. vs. Samser Rahaman reported in 18 CWN 176 . This was a suit brought by certain co-owners for restraining the remaining co-owners from building on the land in which the latter only were in occupation with the consent of their co-owners. this Court held that this was a proper case for granting an ad-interim injunction restraining the defendants from proceeding further with the building and further that the Court might, if it so desired, order the removal of the building already erected. The facts of this case were very different from the facts of the case at. hand, as in the cited case the defendants were in occupation of the entire disfuted land. There is also no substantial question to be investigated in the present suit so that the property in dispute was required to be preserved in statu quo until that question could be finally disposed of. For in his case it is admitted by all the parties that each of the three lessees from whom they claimed had separately demarcated 7 decimals within the disputed land.. This decision, therefore, has no application to the facts of this case. The learned Advocate cites next Hemanta Kumar Roy and Another Vs. Baranagore Jute Factory Company In this case the plaintiffs were some of the superior landlords of the disputed property which consisted of two plots of land and they claimed to have been in direct possession of about 1/3rd of the property. The defendants who were in occupation of the remainder being alleged to have obtained a permanent lease from some of the co-sharers of the plaintiffs commenced to dig the foundations for an extension of their factory house. The plaintiffs sued for partition and applied for a temporary injunction. It appeared that on partition the plaintiffs could not conveniently be allowed any share of one of the plots but had to be limited to an allotment out of the other plot. In such circumstanecs it was held that there was a substantial question in controversy between the parties and pending its determination the status quo should be maintained to the necessary extent. It was observed further that it was desirable that the plot, a share of which only could be allotted to the plaintiff on partition, should be retained in statu quo so that the Court might be free to grant such relief as it might think proper and an injunction should be granted restraining the defendants from building on this plot. The facts of this case were also very much different from the facts of the case at hand. In this case the defendants who had taken settlement from some of the co-sharers tried to build on the disputed land. There was, therefore, a relevant question as to what was the extent of their right and whether they were exceeding it, expecially with regard to the plot out of which only the plaintiffs could have carved out their shares out of the partible estate. That is not the case here. The possession of the parties in respect of leaseholds - is admitted here and there is no complaint. that the appellant encroached upon any other lessee''s lands. This decision also, therefore, has no application here.

The position of law in such a case as the present has been discussed in Soumendra Kumar Dutta and Another Vs. Sree Sridhar Jew and Others, which was a case where the eastern portion of the disputed property was in exclusive possession of the defendants nos. 1 to 9 and the western portion in exclusive possession of the plaintiff and the defendant no. 10 in half and half. The lessees, defendants nos. 1 to 9 started constructing on the eastern portion when the plaintiff filed the suit for partition and injunction. On a consideration of all the relevant decisions on this point including Israil vs. Samser mentioned above it was concluded as follows : -

The proposed construction is sought to be made only in the eastern portion of the said property. This does not affect the plaintiff''s enjoyment or actual user of the property. No particulars of any injury that may be suffered by or caused to the plaintiff has been alleged either in the plaintiff or in the petition. The plaintiff, in my opinion, has not been able to show that he has been or will be prejudiced. In any event if and when the property is found to be joint at the time of passing the preliminary decree and allotments are directed to be made, the partitioning court will certainly take into consideration the rights and liabilities of all the parties and adjust the same in the preliminary decree........" As in that case in the present case also the construction is being made only on that portion of the disputed plot which is in exclusive possession of the appellant and which previously was in the exclusive possession of his vendor. The house when constructed will not affect the respondents enjoyment or actual user of the property of which they claimed to be in possession being a separate portion of the disputed plot. No particular injury that may be suffered by or caused to the respondents has been alleged and nor have they shown how they will be prejudiced if no order of injunction is granted. Besides as observed, if ultimately a preliminary decree is passed and allotments directed, the partitioning court will be at liberty to take into consideration the rights of the parties and adjust the same in the preliminary decree. In view of the peculiar circumstances of this case there is no reason, therefore, why the appellant should be injuncted from continuing with the construction of the building of his house on the disputed land.

So far as the third point is concerned as stated above it seems to be the case of the appellant that the plaintiff respondents have already donated their 7 decimals within the disputed plot to a neighbouring school and they have no longer any subsisting interest therein to maintain the suit for partition. There are some such statements in some of the documents produced from the side of the appellant and also in one or two affidavits. But the deed of gift by which this 7 decimals were transferred by the plaintiff-respondents to the school was not produced. In the circumstances stated it becomes difficult to come to a definite conclusion in this regard. If in the long run it is found that the appellant''s contention in this regard is true then the suit of course will fail on that ground alone.

On a consideration of all the circumstances, we are of the view, therefore, that in the peculiar facts and circumstances of the case the appellant should not be injuncted from going on with the building of his house on the land purchased by him. The balance of convenience and inconvenience tilts in favour of the appellant. His loss also will be irrefarable if he is injuncted from carrying on with his construction in view of the prevailing market conditions. The present appeal must, therefore, be allowed.

Before closing we must also point out that there is also another ground why the Id. judge ought not to have allowed the plaintiff-respondents'' prayer for injunction. The plaintiff-respondents asked for an injunction on the ground or allegation that the appellant was threating to build his house on the entire 21 decimals of the disputed plot. This obviously could not very well be true and it becomes quite clear that the appellant tried to build his house on a portion of 7 decimals which he had purchased from his vendor. The plaintiff-respondents, therefore, made a false statement before the Court for obtaining an order of injunction from it. Injunction is an equitable relief and he who asks for such a relief must come with clean hands. The plaintiff-respondents, so it appears, did not appear with clean hands and this was very good ground why their prayer for injunction should have been refused by the Id. Court below.

On a consideration of all the materials on record and the relevant law we are of the view that the present appeal must succeed and the order of injunction passed by the Id. Court below must be set aside. Hence,

ordered,

that the appeal is hereby allowed on contest. The impugned order no. 33 dated 4/11/89 passed in Title Suit No. 109 of 1989 by the Id. Second Assistant District judge, Barasat is hereby set aside and the plaintiff-respondents'' petition for temporary injunction is hereby rejected. Office to send a copy of this order to the learned Court below immediately. The learned Advocate for the appellant is also hereby permitted to bring to the notice of the learned Court below the gist of this order.

S.P. Rajkhowa, J.

I agree.