Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendants and is directed against the order dated September 16, 2010 passed by the learned Additional District Judge, Third Court, Paschim Medinipur in Misc. Appeal No.18 of 2010 arising out of an order dated February 22, 2010 passed by the learned Civil Judge (Senior Division), First Court, Paschim Medinipur in Judicial Case No.18 of 2009 arising our of Title Suit No.126 of 2009.
(2.) THE plaintiffs/opposite parties herein instituted a suit being Title Suit No.126 of 2009 before the learned Civil Judge (Senior Division), First Court, Paschim Medinipur for a decree for partition in respect of their 22 decimals of land within the suit property against the defendants/opposite parties herein. THE petitioners are contesting the said partition suit and they have filed a written statement denying all the material allegations made in the plaint. At the time of filing of the suit, the plaintiffs filed an application for temporary injunction. That application for temporary injunction was disposed of by the learned Trial Judge directing the parties to maintain status quo with regard to the nature and character as well as possession of the suit property till disposal of the suit. THEreafter, the petitioners preferred a misc. appeal being Misc. Appeal No.18 of 2010 which was dismissed by the learned Additional District Judge, Third Court, Paschim Medinipur by the impugned order. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiffs/opposite parties herein instituted the said Title Suit No.126 of 2009 praying for a decree of partition of their 22 decimals of land within the suit property, as described in the schedule of the plaint. The parties to the application are the heirs and successors of the original owner, Bhim Charan Maity. There is no dispute about it. The said suit plot comprises 88 decimals of land and the plaintiffs have claimed 1/4th share of the same by way of inheritance and subsequent deeds amongst the heirs. The plaintiffs have contended that the defendants have collected building materials for making construction over the best portion of the suit property and even encroaching the land of the other co-owners and also without any sanctioned plan. Both the Courts have come to the concurrent finding that the defendants could not file any copy of the sanctioned plan to show that they obtained sanction for raising the construction on the said land, though it is apparent that the defendants filed an application for permission to erect the construction. In the circumstances, if the defendants are permitted to raise construction, there may be encroachment and so if pucca construction is raised, as alleged, it will be difficult to get recovery of possession after demolition of a portion of the building. In the said circumstances, both the courts below have arrived at a concurrent finding that both the parties should be directed to maintain status quo with respect to the suit property. Therefore, I am of the view that the concurrent findings should not be set aside under the above circumstances.
(3.) DURING argument, Mr. Roychowdhury has referred to the decision of 85 CWN 393 and thus, he submits that when the plaintiff instituted a suit for partition against the defendants claiming 8 annas share in the suit property, the learned Trial Court granted injunction but subsequently when the defendants who are also 8 annas shareholders in the said property prayed for permission to sell their properties in case of meeting essential expenses, permission was granted to sell the said property. Therefore, it is not true that in a suit for partition, the order of injunction should prevail till the disposal of the said suit. Mr. Roychowdhury has also referred to the decision of 2004(1) CLJ (cal) 430 and thus, he submits that in a suit for partition, an order of injunction restraining the construction normally should be granted but the principle cannot be stated to be absolute in case of extreme hardship and in cases where the injury for the injunction is not granted would be insignificant and the other side has a weak case, the principle can be deviated from having regard to the time taken for disposal of a suit. Thus, he submits that the impugned order should be set aside so as to facilitate the plaintiffs to raise construction. I have stated above that the petitioners have failed to show any sanctioned plant to raise the construction on their land. There is an allegation of apprehension of encroachment and construction on the best portion of the land. Moreover, the parties have failed to prove by any scrap of paper before the learned Trial Court or the lower appellate Court that there was ever partition either before the date of June 7, 1965 when Section 14 of the West Bengal Land Reforms Act relating to partition came into force or after the date no partition was effected either by any deed of partition or by a decree of the Court. Then, it shall be presumed that the property remains joint. In the case of 2009(1) ICC 403, the Apex Court has held that when the parties failed to produce any evidence that partition was effected or before June 7, 1965 or after introduction of the aforesaid provision of Section 14 of the West Bengal Land Reforms Act, 1955, the conclusion of the Hon?ble Court was set aside and the matter was remitted back to the learned Trial Court to decide as to what was the date of alleged partition.;