LAWS(ORI)-1997-7-15

LAILA BIBI Vs. ASHA BIBI

Decided On July 25, 1997
Laila Bibi Appellant
V/S
Asha Bibi Respondents

JUDGEMENT

(1.) This appeal under Order 43, Rule l(r) of the Code of Civil Procedure (for short, 'the Code') is directed against the order of the learned Civil Judge (Senior Division), Bhubaneswar, passed in Misc. Case No. 144 of 1995 arising out of title Suit No. 101 of 1994, whereby the plaintiff's prayer for temporary injunction has been partly refused. The aforesaid suit filed by the plaintiffs is one for partition of Ac.0. 110 decs. of land appertaining to Sabik Plot No. 50 which corresponds to Hal Plot . No. 1241 under Hal Khata No. 4 of mouza Bhubaneswar, Unit - 3, Kharavelanagar (hereinafter referred to as 'the suit land').

(2.) THE case of the plaintiffs, in brief, is that the State Government in General Administration Department being the owner of the suit land settled the same on 8.3.1960 by way of lease for a period of 90 years with Sk. Md. Azim, the common ancestor of the parties. Having obtained possession the lessee constructed his residential house and was residing there with his family till his death. He is survived by 17 children and two wives and they all arc parties to the suit. Both the wives, according to Mohamadan Law arc entitled to 1/8 shares and remaining others are jointly emitted to 7/8 share in the estate left by Sk. Md. Azim. Therefore, plaintiff's shares HI she suit land as calculated comes to 90/208th share. Presently plaintiff No. 5 and defendants 1 to 7 are occupying the house standing on the sun land and others are staying outside to earn their livelihood. Taking advantage of the absence of the plaintiffs, defendants 1 to 7 without their consent and consent of other co -sharers, forcibly demolished a portion of the house and constructed some shop rooms by taking huge amount as advance from some businessmen with an understanding that after completion these would be let out to them. This led the plaintiffs to file the suit for partition of the suit land and for allotment of their share.

(3.) AN Advocate Commissioner was deputed for local inspection, who having visited the spot submitted report that construction of the second storey has gone upto roof level. Taking this factual aspect, into consideration, the learned Court below while restraining the defendants from making any new construction on any portion of the vacant area, allowed the defendants to complete the construction of the building which has already been taken up and is in progress.