Safiya Malik

A division bench has set aside a trial court’s decision that had restrained a defendant in a partition suit from proceeding with construction on a disputed property. The court held that the defendant may continue construction under specific conditions, citing principles of equity and fairness while acknowledging prior agreements between the parties.

The dispute revolves around Plot No. 1065, where both the plaintiff and the defendant claim rights over respective portions of the property. The plaintiff, who had constructed a dwelling house on the southern portion of the plot, sought an injunction against the defendant’s construction on the northern part, alleging that the construction was unauthorized and that the defendant was exceeding his entitled share of the land.

The plaintiff contended that the defendant had begun construction without securing the necessary approval from the relevant authorities, and further argued that the construction encroached upon an area that exceeded the mutual arrangement previously agreed upon. The plaintiff submitted that the defendant was attempting to change the nature and character of the property without proper consent and that such an action could affect the outcome of the partition suit.

The defendant, in response, relied on an alleged mutual agreement between the parties, facilitated by local villagers, which permitted him to construct on the northern portion of the plot while ensuring a five-foot-wide passage was left for the plaintiff’s access. The defendant further asserted that he had already demolished his old residence on the plot, intending to rebuild it in the same location. He argued that any further restriction would result in undue hardship to him and his family, who had no alternative accommodation.

The plaintiff opposed this contention, stating that the defendant had no legal right to construct beyond his designated share of the property. The plaintiff’s counsel further argued that allowing the construction to proceed would effectively ratify an illegal structure. He submitted that the court’s initial injunction should remain in place to prevent any modification to the property before the resolution of the partition suit.

Additionally, the plaintiff presented documentary evidence, including a sanction plan issued by the local authority, which was granted after the defendant had already commenced construction. The plaintiff asserted that this retroactive approval was insufficient to validate the construction, as it was sought only after the legal dispute had arisen.

The court carefully examined the pleadings and submissions from both sides. The bench noted that the plaintiff, in his plaint, had acknowledged that there was an arrangement between the parties, which allowed the defendant to construct on a specific portion of the property. The court observed: "The plaintiff, by mutual arrangement with the defendants, has already made construction of his dwelling house on the southern portion of the concerned plot." The court further noted that a written agreement reflecting the settlement had been signed by both parties, confirming the defendant’s right to construct on the northern side while leaving a five-foot-wide passage.

The court also examined the report of the Advocate Commissioner, which was appointed by the trial court to inspect the site. The report stated: "There exists on the concerned plot a two-storied broken pucca house without any roof of the first floor, which was demolished for the purpose of repairing." This suggested that the defendant had an established dwelling at the location, supporting his claim of previous occupation.

On the issue of the sanction plan’s validity, the court ruled that "it is not within the civil court’s purview to determine the legality of the sanction plan, unless a complaint is pending before the competent authority." The court applied the presumption of correctness to official actions, stating: "The validity of the sanction plan should be presumed unless otherwise rebutted." It further noted that there was no evidence of any challenge against the plan before the municipal or panchayat authorities.

Addressing the plaintiff’s reliance on precedent, the court distinguished the present case, stating that "No laches on the part of the appellant is found by this court and lack of diligence cannot at all be attributed to the appellant in the case at hand." The court stated that the defendant had promptly filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure to vacate the status quo order, demonstrating due diligence.

The court further considered the balance of convenience, stating that the defendant had already demolished his prior structure and had commenced construction. Preventing further development would cause hardship to the defendant, especially in the absence of any alternative accommodation. Meanwhile, the plaintiff remained in possession of his dwelling house on the southern portion of the plot, which had been built based on a similar mutual arrangement.

The court allowed the appeal and modified the trial court’s injunction order. It directed:

"The defendant is permitted to complete the construction of his dwelling house on the northern side of Plot No. 1065, strictly in accordance with the sanction plan granted by the concerned Panchayat and in terms of the amicable settlement between the parties by leaving a five-foot-wide passage."

However, the court stated that "no special equity shall be created in favour of the appellant merely by dint of such construction." It further directed that in the event the plaintiff ultimately succeeds in the partition suit, the trial court would have full authority to order demolition of the defendant’s construction if necessary to restore the property to its original state.

Additionally, the court observed that the trial court should adjudicate the suit independently without being influenced by any observations made in the present order. It stated that "nothing in this order either ratifies or invalidates the sanction plan, and any grievances regarding the same should be raised before the appropriate authorities."

Case Title: Sri Chandi Charan Maity vs. Sri Nakul Chandra Maity and another
Case Number: FMA No. 1283 of 2024 + CAN No. 1 of 2024
Bench: Justice Sabyasachi Bhattacharyya & Justice Uday Kumar

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