SATISH CHANDRA SOM Vs. TARAK NATH MAHAPATRA

JUDGEMENT

(1.) This appeal is directed against the judgment and order No. 15 dated 18th September, 2003 passed in Title Suit No. 5 of 2003 by the learned Civil Judge, Senior Division, First Court, Contai.

(2.) The plaintiff had filed a suit for partition claiming interest in 1/4th share measuring about 1/2 decimal of land. According to the plaintiff, the property belonged to Sashi Bhusan and Bipin. Bipin had four sons and three daughters. 3'/2 decimals of land of Bipin was sold to Bejoy Krishna Bera by four sons and one daughter on 26th October, 1983. The other two daughters Basanti and Shanti did not join in the Deed though the entire property was purported to be sold. The plaintiff purchased the share of Shanti while one Sudhir Kr. Acharya purchased the share of Basanti whereas the appellants/defendants purchased 3 decimals of land from Bejoy Kumar Poyra who purchased the same from Lakshmipriya, the wife of Sashi Bhusan, on 13th of October 1980. Appellants purchased the property from Bejoy Kumar Poyra on 7th of August 1985. Bejoy Krishna Bera through the same document dated 26th October, 1983 had also purchased 1/2 decimal from Lakshmipriya.

(3.) Mr. Bagchi, appearing on behalf of the respondents, contends that the plaintiff Tarak Nath became co-sharer by virtue of his purchase from Shanti in respect of the entire property of Sashi and Bipin since there was no partition. He had prayed for partition and as such co-owner, he has right over every inch of the property. Therefore, no construction can be made in any part of the joint property until the partition is effected. Therefore, the order of injunction was rightly passed. He also relied on a decision in Israil & Ors. v. Samser Rahman & Ors., XVIII CWN 176. In the said decision Sir Ashutosh Mookerjee, as His Lordship then was, while delivering the judgment in a Division Bench was pleased to hold that in a case of injunction in respect of co-sharers' property as soon it is shown that the property is a joint property, the injunction is bound to be granted. This principle, according to Mr. Bagchi, is still holding good.