KIRTAN MALLICK Vs. KARUNAKAR DAS

JUDGEMENT

(1.) HEARD

(2.) THE judgment dtd. 3.1.2009 passed by learned District Judge, Cuttack in F.A.O. No. 115/2008 is assailed in this Writ Petition filed under Article 226 of the Constitution of India. Opposite Party as plaintiff filed C.S. No. 178/2008 in the Court of Civil Judge (Sr. Division), Ist Court, Cuttack, inter alia, praying for partition of the suit properties. The present petitioner is the defendant in the said suit. In course of hearing, the present petitioner filed a petition under Order 39, Rules 1 and 2 read with Section 151 of C.P.C. alleging that the opposite party -plaintiff is trying to raise construction over the disputed properties with an intention to frustrate the decree. The said petition was registered as Interim Application No. 187/2008. Paragraph -4 of the petition reads as follows: "That on 17.4.2008 on all of sudden the opposite party with help of some higher goondas started digging the soil forcible to raise illegal construction on the suit land, the petitioner protested such illegal action of the opposite party but the opposite party did not stop his illegal action Finding no other alternative the petitioner is filing the present application prayer for grant of injunction against the opposite party restraining him from raising any construction over the suit land and from cutting and removing the valuable trees from the suit land."

(3.) MR . Choudhury, learned counsel appearing for the petitioner, relying upon the averments made in the petition quoted supra as well as the reply given to the said allegation in the objection filed by the plaintiff submitted that on the date when Interim Application was filed, no construction was made. However, the plaintiff only in order to frustrate the defendants hurriedly raised certain constructions. This aspect was not kept in the mind by the learned District Judge. Mr. Choudhury further submitted that the lands in question are situated within the limits of Cuttack Municipal Corporation and as such any construction made without obtaining prior permission and/or sanction a plan being illegal needs to be demolished, and as such the Court may not permit further illegal construction.