Sukumar Patra & Another vs Rabisankar Patra & Others

Soumen Sen, J.—This revisional application is directed against an order dated 19th December, 2015 passed in connection with an application filed by the plaintiffs under Section 151 of the Code of Civil Procedure, in which a prayer was made for raising pucca construction over the suit plot no. 190.

The contention of the plaintiffs appears to be that all the co-sharers to the property in question have consented to raise such construction save and except the contesting opposite party, who is the sister of the plaintiff no. 1.

The plaintiffs claim to be the co-sharer of ''Ka'' schedule property with the defendants by virtue of a deed of gift, being no. 1788 dated 7th March, 2013 and are in possession in respect of ''Ka-1'' schedule property, which is the part and parcel of ''Ka'' schedule property. The plaintiffs claim to have purchased the suit plot no. 190 as of ''Ka-1'' schedule property along with an old mud walled straw shedded house built thereon, which is now in a dilapidated condition and might endanger human life.

It was contended that the plaintiffs intended to erect a new construction over his share in suit plot no. 190 by demolishing the existing old dilapidated structure. The defendant nos. 4(ka), 4(kha), 5, 11, 14 and 15 raised objection and questioning the Solenama entered into between them and the plaintiffs in respect of the concerned plot. The plaintiffs have already obtained necessary permission from the concerned Municipality and the Central Government has also sanctioned necessary funds.

The Trial Court examined the documents produced before it including the deed of gift no. 1788 dated 7th March, 2013 and observed that such documents did not show that there was existence of any old mud walled straw shedded house over plot no. 190. It was found that there was transfer of interest in respect of the land in question in favour of the plaintiffs. The Trial Court found that the plaintiffs did not present the true picture of the suit property and as such the inherent power cannot be exercised to pass an order in favour of the plaintiffs.

The Trial Court appears to have relied upon a decision of the Hon''ble Supreme Court in the case of K.K. Velusamy v. N. Palaanisamy reported in (2011) 11 SCC 275 and held that when the fact remains that the property has not been partitioned by metes and bounds, no co-sharer is entitled to make any construction on the undivided property. The Trial Court was of the view that if a co-sharer is permitted to raise construction within his share over the joint property, then the rights of other co-sharers might be prejudiced, so far as the valuation of concerned plot is concerned.

Mr. Jiban Ratan Chatterjee, learned Senior Counsel, appearing for the petitioners submits that save and except the opposite party no. 21 all other co-sharers have consented to raise construction on the said plot by the plaintiffs.

The opposite party no. 21 is a married sister of plaintiff no. 1. She has claimed interest in the property. She is not living in the said property. The plaintiff no. 1 has obtained the sanctioned plan in order to raise construction at the suit premises on a demarcated portion of the land. It is true that unless the property is divided by metes and bounds by passing a preliminary decree in a suit for partition, no co-sharer can exclusively claim any right, title and interest in respect of any portion of the property as other co-sharers are having interest in every inch of the land forming the subject matter of the suit.

The question arises whether the plaintiff no. 1, who is residing at the said premises would be deprived of enjoying the said property till the decree of partition was not passed. The opposite party no. 21 admittedly is not residing in the suit premises. The plaintiffs contend that any such construction shall not create any equity in their favour and that shall abide by the result of the partition suit. If there be any accretion in the suit property it is needless to mention that the married sister would be entitled to such benefit and there cannot be any doubt that at the time of passing a decree of partition the Court shall take into consideration the aforesaid facts.

The learned counsel appearing on behalf of the opposite party no. 21 contends that the plaintiff no. 1 has no exclusive right over the property in question, as the deed of gift is void and a separate suit filed by the daughter is pending.

However, the counterclaim produced before this Court does not show that the married sister has prayed for declaration that the said deed of gift is null and void. Whether the plaintiff no. 1 would be entitled to his share on the basis of the deed of gift is for the Trial Court to decide at the appropriate stage.

Having regard to the fact that the plaintiff is in possession of the suit property and the other co-sharers have consented for raising construction on the portion under occupation of the plaintiffs, liberty is given to the plaintiffs to raise construction in terms of the sanctioned plan without claiming any equity and subject to the result of the suit for partition.

The plaintiffs shall not transfer, alienate or encumber the suit property till the disposal of the suit. The property shall be exclusively used for the occupation of the plaintiffs.

The plaintiffs shall file an undertaking before the court below that they shall not claim any equity and shall abide by the final decree to be passed in the said proceeding. The said undertaking shall be accompanied by the sanctioned plan of the proposed construction. A copy of the said undertaking and the necessary documents shall be supplied to the learned counsel representing the opposite party no. 21 in the Court below.

In the event such undertaking is filed, the plaintiffs shall be entitled to raise construction on the basis of the sanctioned plan. The right of the sister of the plaintiff no. 1 to claim the benefit of accretion consequent upon such construction is preserved to be decided at the suit.

With the above observations this revisional application is disposed of.

There will be no order as to costs.