BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.388 of 2007 and M.P.(MD) No.2 of 2007 B.R.Ravi .. Appellant Vs. 1.B.R.Sankar 2.M.S.Jayanthi .. Respondents Prayer Appeal filed under Order 43 Rule 1 r/w Section 104 of Civil Procedure Code, against the Fair and Decreetal Order dated 02.02.2007, passed in I.A.No.No.201 of 2005 in O.S.No.93 of 2005, on the file of the Principal District Judge, Thanjavur. !For Appellant ... Mr.M.Siddharthan ^For 1st Respondent ... Mr.K.Govindarajan For 2nd Respondent ... Mr.G.Sridharan :JUDGMENT
This appeal is focussed as against the Fair and Decreetal Order dated
02.02.2007, passed in I.A.No.No.201 of 2005 in O.S.No.93 of 2005, on the file of
the Principal District Judge, Thanjavur.
2.Heard both sides.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of this Civil Miscellaneous Appeal would run thus:
1st Respondent/Plaintiff herein filed the suit O.S.No.93 of 2005 seeking
partition of various items of properties including item No.18 found set out
therein, which is a plot. I.A.No.201 of 2005 was filed by the 1st
respondent/plaintiff herein seeking injunction as against the petitioner/5th
defendant herein so as to restrain him from making any construction, alteration,
modification in the said plot. The trial Court also granted injunction as
prayed for.
4. Being aggrieved by and dissatisfied with such an order of injunction,
the petitioner/5th defendant herein preferred this Civil Miscellaneous Appeal on
the following main grounds among others:
A.B.K. Rajan, the father of the petitioner and the first respondent
during his life time got partitioned of the joint family properties and
accordingly there was severance of status between himself and his brothers
Thulasiraman and Jeyaraman. Subsequently, according to the petitioner the said
A.B.K. Rajan executed a settlement deed in favour of the petitioner settling the
said item No.18 of the suit property. Whereupon the petitioner availed loan and
started laying foundation in the said property. Thereupon I.A.No.201 of 2005
was filed seeking injunction. The building materials were purchased by the
petitioner by availing loan and kept in the said plot to the risk of those
materials getting damaged. He would specifically submit that in the event of
the Court ultimately finding that the said settlement deed is void and that the
other co-sharers also should be given shares in it, he is ready to share the
building also, which he is going to construct from out of his own sources.
5.The point for consideration is as to whether the trial Court was
justified in rejecting the contention of the petitioner and in granting
injunction against him so as to restrain him from the 18th item of the suit
property?
6. Point: The learned counsel for the appellant at the out set itself
would come forward with a supine and candid statement, that the petitioner is
ready to file an affidavit to the effect that whatever amelioration/construction
that would be made in the 18th item of the suit properties, would be made
available for the other co-sharers also to obtain shares in their favour if the
Court ultimately arrives at the conclusion that the other co-sharers are also
entitled to 18th item of the suit properties. According to the appellant the
settlement executed by the deceased father, Rajan is valid and that the trial
Court was not justified in negativing the objections raised by the petitioner as
against the granting of injunction.
7. Whereas the learned counsel for the 1st respondent/plaintiff herein
would submit that absolutely there is no justification on the part of the
petitioner in contending that pending the suit, he would be entitled to proceed
with the construction so as to deprive the right of the other co-shares. The
learned counsel for the second respondent adopted more or less the same type of
arguments submitted on the side of the plaintiff. The learned counsel for the
appellant, ultimately would submit that even if this Court decides not to grant
permission for construction based on merits relating to the right of the
petitioner to proceed with the construction, at least this Court may
sympathetically consider the fact that huge amount has been spent for purchasing
materials for construction and that if the stay order of injunction is not
vacated then he would be put to irreparable loss. I could see considerable
force in the submissions made by the learned counsel for the petitioner. The
right of the petitioner has to be dealt with only by the trial Court and a
decision to be taken finally, nevertheless the fact remains that building
materials should not be wasted. This Court has to strike a balance between the
rights of the parties. One party barely and unconditionally can not be allowed
to proceed with the construction claiming absolute right and if done so, it
would affect the right of the other sharers.
8. Whereupon the learned counsel for the petitioner would submit that the
petitioner is ready and willing to file an affidavit to the effect that in the
event of the Court ultimately arriving at the conclusion that in the 18th item
of the suit properties, the other sharers are also having their shares, he is
ready to give share in the building to be constructed by him in the 18th item of
the suit property. In this factual matrix, I am of the view that there could be
no objection from the contesting respondents as they would in no way stand to
loss but it all depends on the ultimate decision of the Court on the right of
rival parties. Accordingly, the order of the trial Court is set aside and
replaced by the following order:
The petitioner shall within a week from this date, file an affidavit
before the trial Court giving notice to the other side that the petitioner shall
have no objection for sharing the amelioration/construction that he would be
making in the 18th item of the suit properties by spending his own source of
income in the event of Court ultimately arriving at the conclusion that the
other co-sharers are also having share in the 18th item of the suit properties.
On such filing of the affidavit the order of this Court shall come into
operation. Trial Court shall dispose of the suit within two months from the date
of receipt of a copy of this order. I make it clear that the Trial Court is at
liberty to decide the lis as per law uninfluenced by any of the observations
made by this Court in this Order.
9. Accordingly, the Civil Miscellaneous Appeal is disposed of.
Consequently, connected M.P.(MD) No.2 of 2007 is closed. No costs.
sj
TO
The Principal District Judge,
Thanjavur.