BARENDRA NATH MAITY Vs. KHAGENDRA NATH MAITY

JUDGEMENT

(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.

(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.