NARAYAN BISOI Vs. RAGHUNATH BISOI

JUDGEMENT

(1.) This civil revision is directed against the order passed by the learned Additional District judge, Berhampur, restraining the petitioners from construction of a wall and directing maintenance of status quo during the pendency of the suit for partition.

(2.) THE subject -matter of partition is the house and homestead of three brandies represented by the two petitioners and the opposite party who are brothers. Each of them has 1/3rd share therein. During pendency of the suit for partition by metes and bounds filed by the opposite party, the petitioners made preparation for construction of a pucca wall, whereupon the opposite party filed a petition for temporary injunction before the learned Subordinate Judge, Aska, who passed an order of ad interim injunction against the petitioners. But after hearing both parties, he vacated the said order. The opposite party appealed before the learned Additional District judge, Berhampur, who accepted the appeal and directed issuance of temporary injunction and maintenance of status quo.

(3.) THE house and homestead shall be treated as joint family property until and unless it is proved that by the deed of partition dated 12 -10 -1960 there was a complete partition thereof by metes and bounds which has to be decided in the suit. So, at this stage it cannot be pre -judged that there was a complete partition and the parties are in separate possession of their respective 1/3rd share each. Accordingly there appears to be a 'prima facie case for partition. With regard to irreparable injury and balance of convenience, it Is sufficient to observe that during the pendency of a suit for partition, it is desirable that the parties should maintain status quo Unless this is done and in case a preliminary decree for partition is passed, difficulty is bound to arise for adjustments and equities during the final decree proceeding. A party who makes valuable construction by spending a huge amount naturally claims the constructed portion to his share and, thereby, the other co -sharers are put to difficulties* in the sense that either their shares are truncated or they have to remain satisfied by getting some compensation which may not be adequate. Such a situation is best illustrated by a decision 'reported in AIR 1914 Cal. 362 Israil and Ors. v. Samset Rahman and others) in which a Division Bench consisting of Sir Asutosh Mookajee and Benchcreft, JJ, held as follows : '...Where does the balance of convenience lie; is it desirable that the status quo should be maintained or is it right that the defendants should be allowed to continue to alter the character of the land ? It is well settled that the Court will not refuse an injunction in a case of this description so as to give the defendants an undue advantage over the plaintiffs. If the defendants in the case before us were allowed to proceed to the completion of the building which has been erected by them on the land, it is indisputable that they will be placed in a position of undue advantage over the plaintiffs. In this connexion, reference may be made to the judgment of Sir George jessef in the case of Aynsfey v. Glover: (1874) 18 Eq. 544 =43 L.J C 777=31 L T. 219=33 W. R. 147, where that learned judge observed -as follows : At all events, this being an interlocutory application, let me continue my building, and I will under -take to pu!l down if the Court shall so think fit'. That is a very specious argument to address to the Court, but one must have regard to the effect of allowing such a proceeding. Supposing a defendant erects a building at great cost, when he comes to the hearing he will say to this Court, : 'Compare the injury to me, in pulting down the building, with the injury to the plaintiff in allowing the building to remain'. Ought or ought not the Court to give weight to such a representation ? I think upon this point the observations of Vice -Chancellor Kindersley, in the case of Carriers' Company v. Corbett : (1860) 2 Dr. & Em. 355 = 12 L. T. 169=13 W. R. 1056=62 Ex. R. 656, are very important. The Vice -Chancelior says : 'If the defendant's new buildings had not been completed, there would have been ground for interference by injunction : but as they have been completed, the question is, whether the Court ought to or would order the pulling down of the buildings or give compensation in damages.' Of course, Mr. Deepak Misra made reference to A. I. R. 1971 Cal. 264 (Soumandra Kumar Dutta and Anr. v. Sree Sridhar Jew and others) in which a learned single judge made reference to A.IR. 1914 Cal. 362 (supra), but did not refer to the important observation quoted above. The facts of this case were also different, because, by virtue of a lease for a period of fifty years, defendant 9 was in exclusive possession of house and premises in Calcutta and so it was found that balance of convenience was against granting injunction. With regard to constructions on the subject -matter of dispute, a decision reported in A. I. R 1983 S. C. 752 (Ganghubai Babiya Choudhary and Ors. v. Sitaram Bhalchandra Sukhtankar and others, etc ) is also important. Desair, J. speking for the Court held : 'Having given the matter our. anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F. S. I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9,000 Sq. metres of land on which they can put up construction.'