MD. SAFIULLAH ANSARI Vs. IQBAL ANSARI

JUDGEMENT

(1.) The defendants in a suit for partition has filed this application under Article 227 of the Constitution of India challenging an order being No. 16 dtd. 1/8/2023 passed by the learned Additional District Judge, Fast Track Court No. 1, Howrah in Misc. Appeal No. 63 of 2022 arising out of Title Suit No. 304 of 2021.

(2.) By the impugned order, the application under Order XXXIX Rule 7 of the Civil Procedure Code filed by the plaintiffs stood allowed. In the later part of the said order, the learned Judge of the Court below extended the interim order of injunction passed on 22/6/2022. Mr. Bose, learned counsel appearing for the petitioner submits that a suit being Title Suit No. 347 of 2021 was filed by the present plaintiffs. On an application for temporary injunction, the learned trial Judge directed the parties to maintain status quo with regard to the joint possession in respect of the suit property and alienation of any part to any third party with the liberty to the parties to raise construction of a residential house without prejudice to the interest of the other co- sharers till disposal of the said suit.

(3.) One Kamal Ansari filed an appeal being FMAT 215 of 2023 challenging the said order dtd. 18/3/2023 passed by the learned trial judge in Title Suit No. 347 of 2021 and the Hon'ble Division Bench of this Court by an order dtd. 12/7/2023 disposed of the appeal by observing that there is no fetter on the part of the co-sharer in improving value of the property by making construction when the plaintiff/appellant has been enjoying the constructed area situated in the alleged joint property. Mr. Bose further submitted that since the petitioners herein were not allowed to make construction by the Hon'ble Division Bench of this Court in FMAT 215 of 2023, the learned Judge of the Court below ought not to have restrained the petitioners from making any construction on the suit property. He further submits that the learned trial Judge was not justified in allowing the prayer for local inspection which was with a view to fish out the evidence. Mr. Saha, learned counsel appearing for the opposite party no. 10 submits that the learned Judge of the Court of appeal below passed an order of injunction on 22/6/2022 and such order not having been challenged by the petitioner, this Court should not interfere with the order extending the said interim order of injunction. He further submits that since the petitioners were making illegal and unauthorized construction in the suit premises in violation of the order of injunction, the application for local inspection was filed and the same was accordingly allowed by the learned Judge of the Court below. He further submits that the Hon'ble Division Bench while allowing the petitioners to raise construction observed that such construction has to be in accordance with sanctioned plan.