IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.160 of 2006
JAGDISH CHANDRA ROY .
Versus
MOST.URMILA DEVI & ORS .
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ORDER
16. 08.09.2010. Heard the learned counsel, Mr. Sushanto Kumar Das,
appearing on behalf of the appellant and Mr. Abu Haider, the
learned senior counsel, appearing on behalf of the respondent on
I.A. No.1484 of 2010.
(2) This I.A. No.1484 of 2010 has been filed by the
appellants under Order 39 Rule 1 and 2 of the Code of Civil
Procedure praying therein to restrain the respondents Nos.1 and
2 from making construction over the suit plot No.1653 during the
pendency of this Appeal. Counter affidavit and supplementary
affidavit and rejoinder have been filed on behalf of the parties.
(3) The learned counsel for the appellant submitted that
the appellants have been allotted one acre of plot No.1653 in the
back side whereas the respondents have been allotted the portion
of land which is just by the side of the road. The respondents are
making shop rooms and they have taken lakhs of rupees from
different persons for inducting them as tenant. If the
respondents are not restrained by injunction then the appellant
shall suffer serious loss and irreparable injury.
(4) On the other hand, the learned counsel for the
respondent submitted that the appellant have got no prima facie
case nor the balance of connivance is in their favour. The learned
counsel further submitted that still 126 feet land of plot No.1653
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which is just adjacent to road which was allotted in the share of
respondent is lying vacant. If the appeal will be allowed and any
portion of this plot is again allotted to the appellant then they
may be very well adjusted in that 126 feet long land by the side
of the road.
(5) It appears that the plaintiff-respondent’s suit for
partition was decreed. Thereafter, pleader Commissioner was
appointed and on the basis of Pleader Commissioner’s report,
final decree was prepared. This First Appeal has been filed
against the final decree. After final decree, the plaintiff-
respondents filed Execution case and obtained delivery of
possession of the properties according to final decree. The
concerned plot No.1653 measures 2.14 acres and out of that
area, the appellants have been allotted one acre. The plaintiff-
respondents have been allotted 76 decimals and they have
obtained delivery of possession and now, therefore, the plaintiff-
respondents are the rightful owner of the property of which
delivery of possession has been given. According to the plaintiff-
respondent still 126 feet land is lying vacant and no construction
is being made. If the final decree is set aside and any portion of
land out of the land of which possession has been given to the
plaintiff is allotted to the appellant then they may be given the
unconstructed portion of plot No.1653.
(6) In view of the above facts and circumstances of the
case that the plaintiff-respondents have obtained delivery of
possession through the process of the Court and are enjoying the
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said land by constructing shop premises in a portion of the said
land, in my opinion, the appellants have got no prima facie case.
In the counter affidavit, it has specifically been stated that
substantial construction had already been completed. At the time
of hearing, the leaned counsel for the respondent submitted that
roof have been concreted. It appears that the injunction
application has been filed in February, 2010. 7 months have
passed and, therefore, it cannot be denied that substantial part of
the construction have been made. I, therefore, find that the
balance of connivance is not in favour of the appellant rather if
injunction is granted, the plaintiff-respondents shall suffer serious
loss and the amount invested will be blocked. I, therefore, find
that the appellant shall also not suffer any loss what to speak of
serious loss and irreparable injury.
(7) I, therefore, find no merit in this Injunction Application
and accordingly this Injunction Application is rejected.
Sanjeev/- (Mungeshwar Sahoo, J.)