PROTIK PRAKASH BANERJEE,J. - (1.) This writ petition is filed by the writ petitioner on the allegation that certain lands comprised in plot No.92 mentioned in paragraph '2' of the writ petition were allotted to the father of the petitioner who is alleged to have been a refugee from erstwhile East Pakistan. The respondent no. 5 is admittedly the uterine brother of the writ petitioner.
(2.) Submissions made at the Bar would indicate that it is the grievance of the writ petitioner that after the death of his parents the land which was provisionally allotted to his father should be inherited by the respondent no. 5 and he himself in equal parts and the State of West Bengal has taken no steps to either execute the appropriate deed of title in favour of the petitioner and the respondent no. 5 nor has it taken steps to remove encroachment being made on the land in question by the respondent no. 5. At paragraphs 10 and 12 of the writ petition the writ petitioner has alleged that the respondent No.5 has been making construction over the a portion of the lands in question despite orders from the competent Learned Executive Magistrate and such construction alleged by the writ petitioner to be illegal, is still going on. A person cannot make construction over immovable property unless he is in some sort of possession of the property in question, sufficient to allow him to make such construction. Therefore, the effect of these averments in the writ petition is to admit that the respondent No.5 is also in possession if not solely in possession.
(3.) On the other hand, the respondent no. 5, through the learned Counsel appearing for him, asserts and admits that he and his brother have no right at present to the property before any allotment is made. He further denies that there was any allotment, provisional or otherwise, in favour of the father of the Writ Petitioner who was also his father. He further denies that he is making any construction after the order of injunction was passed by the learned civil Court. Therefore, he does admit that before injunction he was making construction without having any right to do so. Therefore, on the own admission of the respondent no. 5, through his learned Counsel, he has no right whatsoever in respect of the said land regardless of the benevolence shown by the writ petitioner in accepting that he has a half share.;