NAMITA CHANDRA Vs. ASIT BEJ & ORS.

JUDGEMENT

(1.) The defendant in a partition suit has preferred the instant revisional application, whereby an application filed by the petitioner under Section 151 of the Code of Civil Procedure, for raising construction on the petitioner's alleged demarcated portion, has been refused. It appears that an ad interim status quo order is subsisting in connection with the partition suit. An independent application under Order XXXIX Rule 4 of the Code is also pending at the instance of the petitioner, along with the main injunction application filed by the plaintiffs/opposite party nos. 1 and 2. In such light of the matter, the trial court refused to permit the petitioner to raise construction, primarily on the premise that, at the instant juncture, it would be premature for the court to decide as to whether the petitioner is in occupation of the best portion of the suit property, as to whether she is encroaching any portion of the 'B' schedule property, etc. The trial court also held that, for redressing the hardship of the petitioner, the permanent solution would be expeditious trial of the suit. Such exercise of jurisdiction by the trial court could not be faulted for lack of jurisdiction. In fact, the trial court was somewhat correct in refusing the prayer at the present stage, since ascertaining the right of the petitioner to raise construction on a particular portion of the property would involve a decision on the issue as to whether such portion was actually culled out from the joint hotchpot by specific demarcation, which would, in turn, directly affect the question of maintainability of the partition suit itself. Such question could not be decided without taking evidence, amounting to disposal of the suit itself.

(2.) Hence, it would not be prudent to interfere with the impugned order. However, the petitioner is justified in her grievance that long pendency of the petitioner's application under Order XXXIX rule 4 of the Code of Civil Procedure would severely prejudice the petitioner.

(3.) Accordingly, C.O. No. 1072 of 2018 is disposed of on contest without interfering with the impugned order, with a request to the Civil Judge (Senior Division) at Uluberia, District-Howrah to dispose of the application under Order XXXIX Rule 4 of the Code of Civil Procedure, filed by the present petitioner in connection with Title Suit No. 135 of 2016, pending in the said court, as expeditiously as possible, without granting any unnecessary adjournment to the parties, positively within three weeks from the date of communication of this order to the court below. Thereafter, the trial court will make all endeavour to dispose of other pending interlocutory applications and to take up the suit for hearing as early as the business of the said court permits.