Allowed

Aleya Bibi and Ors. v. Mirjanagar Bajar Jame Masjid Bibi and Ors.

Calcutta HC12 Dec 2022FMAT/422/2022

Case brief

AI extract

What is this about?

In a partition suit involving a mosque, the High Court modified the lower court order permitting the respondent to complete the first floor and preliminary work on the second floor until the partition decree is pronounced by July 31, 2023, distinguishing general principles against construction during title disputes.

What did the court decide?

Modified the lower court order to permit the respondent to complete the first floor and proceed with preliminary work on the second floor until 31 July 2023, and directed the lower court pass a final

Aleya Bibi and Ors. Vs Mirjanagar Bajar Jame Masjid Bibi and Ors. — Partition | Calcutta HC (2022)

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12.12.2022

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Sl.No. 11 Ct.No.03 Amalranjan

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IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE

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FMAT/422/2022 With CAN/1/2022

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Aleya Bibi and Ors. Vs.

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Mirjanagar Bajar Jame Masjid Bibi & Ors.

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Mr. Mohinoor Rahaman Ms. Maria Rahaman Ms. Iqra Rahaman

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…for the appellants/plaintiffs

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Mr. Mahamudul Hassan Mr. Zeeshan Rahman

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…for the defendant no.1/ respondent.1

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Ms. Indrani Pal Mr. Abhijit Pal

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…for the respondent nos. 2-10

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Re: CAN/1/2022

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We admit the appeal.

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As the point involved is not very complicated

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and for the ends of justice, we proposed to hear

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it out dispensing with all formalities.

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The suit in the learned court below is for declaration of title and partition between the parties. The title to some very large portions of the suit property is hotly disputed.

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In one of such portions, there is a mosque. The appellants/plaintiffs as well as the respondents claim title to it. Each of the two groups relies on a deed of transfer. The mosque

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as it stands now is a G-level structure, as submitted by learned counsel for the respondent no. 1. The first floor has been constructed, but is not complete; plastering, painting etc. work is going on.

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In the midst of this, the respondents/ defendants have started constructing the second floor.

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The appellants/plaintiffs seek an order of injunction from this court restraining them from making this construction.

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The learned court below in its impugned judgment and order dated 22^nd September, 2022 has, inter alia, said:

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“Therefore, considering the principle of balance of convenience and inconvenience, methinks, this a fit case to refuse to grant any relief to the plaintiffs in the form of injunction. However, the construction, if any, made by the defendant no. 1, will be subject to the result of the suit and no equity can be claimed.

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Hence, it is

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ORDERED

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That the petition U/o 39 r 1 and 2 r/w Section 151 of CPC is rejected on contest.

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To 04/1/23 for framing of issues.”

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In a partition and administration suit, where the plaintiffs have been able to, prima facie, show some title to the property, usually the court does not permit any construction work to be proceeded with unless the title to the property is determined by it and the property distributed to the owners on partition (see Prasanta Maji & Ors. Vs. Sukhbinder Singh & Ors, reported in AIR 2022 Cal 307 and Sopan Maruti Thopte & Anr. Vs. Pune Municipal Corporation & Anr., reported in AIR 1996 Bom 304).

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In this case, the learned judge of the learned court below has tried to carve out an exception to the above principles on facts by referring to an agreement dated 24^th February, 2018 in which the appellants/plaintiffs nos. 5 and 6 have consented to the erection of the mosque by the defendant no. 1.

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The learned judge also held that possession of the said part of the property is with the said defendant no. 1.

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Learned counsel for the appellants very strongly denies the agreement dated 24^th February, 2018, alleging that it is a fabricated document and no consent was granted by his clients.

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We are told that the suit is ready for trial after completion of the discovery procedure.

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All these questions regarding title to the property, validity of the agreement dated 24^th February, 2018 and so on will be decided in the suit.

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We direct that a final decree of partition be pronounced by the learned court below, latest by 31^st July, 2023.

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Having regard to the above general principles of law regarding the reluctance of the courts to permit construction in the partition suit and also taking into account the fact that the respondents have almost completed the first floor, we direct that the respondent no. 1 shall be permitted to complete the construction of the first floor by doing repairing, renovation, plastering and painting work etc.

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As regards the second floor, the respondents may proceed with only the preliminary work and not any major construction work till 31^st July, 2023.

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If for some reason, the learned court below is unable to pronounce the final decree by 31^st July, 2023, the respondents shall be at liberty to apply to the learned court below for permission to proceed with the construction of the second

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floor. The learned court below on consideration of the, prima facie, case balance of conveyance and inconvenience etc. shall determine the application in accordance with law, as expeditiously as possible.

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The impugned judgment and order dated 22^nd September, 2022 is modified to the above order.

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The appeal and the connected application are, accordingly, disposed of.

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( Biswaroop Chowdhury,J. ) ( I. P. Mukerji,J. )

Aleya Bibi and Ors. v. Mirjanagar Bajar Jame Masjid Bibi and Ors.

Case brief

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Aleya Bibi and Ors. v. Mirjanagar Bajar Jame Masjid Bibi and Ors.

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