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Netai Chandra Ghosh Vs. Gour Mohan Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2473 of 1974
Judge
Reported inAIR1976Cal58
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;Specific Relief Act, 1963 - Section 39
AppellantNetai Chandra Ghosh
RespondentGour Mohan Ghosh and ors.
Appellant AdvocateTapas Chandra Roy and ;Aloke Chakraborty, Advs.
Respondent AdvocateK.M. Pal and ;M. Banerjee, Advs.
Cases ReferredTinkari Das v. Jamunabala Debi
Excerpt:
- .....petitioner before me and others for a declaration of joint title end possession in respect of the suit property. there was also a prayer for permanent injunction restraining the petitioner from raising any structure disturbing the joint possession of the plaintiff in the suit property. the case was that the plaintiff and the defendant no. 1 had been in separate possession of different portions of the building in the suit property. the defendant no. 1 was making preparation for raising a structure in the adjacent vacant land which, if made, would cause serious inconvenience to the plaintiff's enjoyment of the property in his possession. the defence was that the parties were in possession of separate portions of the property by amicable arrangement and the alleged constructions were well.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule was obtained by the defendant No. 1 against orders allowing an amendment of the plaint. The plaintiff instituted Title Suit No. 95 of 1971 in the Court of the first Munsif, Basirhat, against defendant No. 1. the petitioner before me and others for a declaration of joint title end possession in respect of the suit property. There was also a prayer for permanent injunction restraining the petitioner from raising any structure disturbing the joint possession of the plaintiff in the suit property. The case was that the plaintiff and the defendant No. 1 had been in separate possession of different portions of the building in the suit property. The defendant No. 1 was making preparation for raising a structure in the adjacent vacant land which, if made, would cause serious inconvenience to the plaintiff's enjoyment of the property in his possession. The defence was that the parties were in possession of separate portions of the property by amicable arrangement and the alleged constructions were well within the portion of the defendant and would cause no injury to the plaintiff.

2. The plaintiff's petition for temporary injunction restraining the defendant from making constructions was rejected by the learned Munsif but was allowed on appeal. The defendant No. 1 obtained a Rule against the order and this Court disposed of the Rule giving certain directions. The defendant No. 1 was granted leave to complete the construction of the roof of the newly constructed room only, to plaster its walls and to take electric connection therein all at his risk and without any right to claim any equity for such constructions in, the suit or in a partition suit, if instituted. The plaintiff was further given leave to amend the plaint praying for a decree for partition and the defendant was further restrained by an order of injunction from demolishing or changing the character of the existing structures. This order was passed on May 29, 1972.

3. The plaintiff on receipt of the records by the trial Court filed an application on May 3, 1973 for amendment of the plaint by insertion of the usual prayers for partition and also for mandatory order upon the defendant for dismantling structures alleged to have been made by the defendant after High Court's order and restoring them to the original condition. The learned Munsif allowed the application in respect of the prayer for partition but rejected the prayer for mandatory order by order dated June 8, 1973.

4. Thereafter the plaintiff filed a petition on February 26, 1974, for reconsideration of the order of June 8. 1973. in respect of the prayer for mandatory order. The learned Munsif for considering this petition appointed a commissioner who filed his report and was examined on May 29. 1974 in connection with the acceptance of the report. After hearing the learned Advocates and the report and evidence of the commissioner, the learned Munsif invoked his inherent power to secure justice and allowed the application for insertion of the prayer for mandatory injunction and the petition of May 3. 1973 was made part of the plaint while the defendant No. 1 was also given leave to file additional written statement. This order passed on June 21. 1974 Is the subject-matter of the present Rule. It may be mentioned here that on May 31, 1974 the petitioner filed another application praying for withdrawal of the prayer for partition which was allowed on the same date i.e., on May 31, 1974. In respect of the petition of February 26. 1974, as already stated, the Court allowed the prayer for mandatory order.

5. Mr. Tapas Roy, learned Advocate appearing for the petitioner, has submitted that the prayer for mandatory order is not maintainable when the suit is one for a declaration of joint title and possession as every co-sharer has the right to build in the portion in his possession by amicable arrangement. This is undoubtedly so. But as it was observed in Israil v. Shamser Rahman, ILR 41 Cal 436 = (AIR 1914 Cal 362), the mere circumstance that one co-sharer has taken possession of a portion of joint property does not entitle the other co-sharers to claim joint possession as such sole occupation by one co-sharer does not necessarily constitute ouster of other co-owners. At the same time, it does not follow that because a co-owner is, with the express or tacit consent of his co-sharers, in sole occupation of the joint property he is entitled to change the nature of that possession or to use the property in a mode different from that in which is was previously used. The defendant accordingly cannot use the property in his possession in such manner as to interfere with the plaintiff's enjoyment of his portion of the joint property on the basis of some amicable arrangement as alleged. At this stage we are only to note that there is a bona fide contention between the parties to be established in the trial and the relief by way of mandatory injunction is a necessary issue in controversy in the suit on the face of the allegations in the plaint which are denied by the defendant No. 1.

6. Mr. Roy next submitted that after disallowing the same prayer earlier the Court was not competent to revise the order at a subsequent stage of the suit in the purported exercise of powers under Section 151. It is not possible to accept the contention of Mr. Boy as broadly put by him. The Court certainly has the power to allow at appropriate stage, in revision of its earlier order amendment, if it is necessary for adjudication of the matters in controversy provided such amendment does not change the nature and character of the suit and otherwise causes no prejudice to the defence and the defendant is given opportunity to meet the case of the plaintiff. In this case the amendment was allowed on contest and the learned Munsif has given opportunity to the defendant No. 1 to file additional written statement against the allegations for mandatory order while the question will be decided in the trial on the evidence on record and as may be adduced by the parties.

7. As to the Court's taking cognizance of subsequent events after the institution of the suit there is no impediment in respect thereof, if it is necessary inter alia for preserving the rights of the parties and to serve the ends of justice and also to shorten litigation. The authorities on this point have been considered by me in Tinkari Das v. Jamunabala Debi, : AIR1973Cal448 and accordingly this contention of Mr. Roy also cannot succeed.

8. For all these reasons this Rule fails and is discharged. There will be no order for costs.

9. Let the records be sent down at once.


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