High Court Patna High Court - Orders

Jagdish Chandra Roy vs Most.Urmila Devi &Amp; Ors on 8 September, 2010

Patna High Court – Orders
Jagdish Chandra Roy vs Most.Urmila Devi &Amp; Ors on 8 September, 2010
           IN THE HIGH COURT OF JUDICATURE AT PATNA
                        FA No.160 of 2006
                      JAGDISH CHANDRA ROY .
                              Versus
                     MOST.URMILA DEVI & ORS .
                            -----------
                                 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.)