In A Suit For Injunction To Restrain Co-Sharers Of Property, It’s Open To Court To Declare Share Of Respective Parties: Calcutta HC
The Calcutta High Court in a case relating to the property dispute has held that in a suit for injunction to restrain co-sharers of the property, it is open to the court to declare the share of respective parties even if no prayer thereof is made.
A Single Bench of Justice Ajoy Kumar Mukherjee said, “Since present suit is for declaration of co-sharership and injunction to restrain defendants who are also co-sharers, it is open to the court to declare also share of respective parties in the suit properly, even if no prayer thereof is made, to avoid another separate suit for declaration of share of the parties. It is not the form of the prayer which matters, but it is the substance thereof, which should be looked into by the court provided all such reliefs are consistent with the averments in the plaint.”
The Bench noted that the right of a co-owner to raise construction on the common property depends on the consent express or implied of the other co-owners but when the plot is in joint possession of the co-sharers, anyone of them may erect building or raise construction thereon with the consent of others.
Advocates Asmit Datta, Prokash Chandra Pal, and Quazi Md. Hafizullah appeared on behalf of the appellants while Advocates Mrityunjoy Chatterjee and Ravi Ranjan Kumar appeared on behalf of the respondents.
A second appeal was preferred against the judgment and decree passed by Munshiff, 2nd Court, Serampore. The appellants contended that a co-sharer in an undivided property cannot construct a building without obtaining consent from other co-sharers. The dispute which cropped up over the subject matter was related to the land described in “ka” schedule to the plaint comprising of plot no. 1097, 1099 and “kha” schedule to the plaint comprising of plot no. 1262,1088,1100 of Mouza-Samil, District-Hooghly.
The cause of action of the suit arose when the respondents on the strength of a permission granted by the Gram Panchayet started construction over an undivided property and cut down some trees. The respondents contested the suit by filing written statement and accordingly their names were duly recorded in the CS Record of Rights.
The High Court after hearing the arguments of the parties observed, “Having considered the facts and circumstances of the case it appears that the defendants failed to prove their case of settlement in favour of Harigopal Roy and Satya Charan Roy from the Zamindars. Accordingly though there is a conflict in the entry of CSROR and RSROR but the presumption in the RSROR shall prevail as this is the later one”
The Court said that the Trial court committed no mistake in declaring plaintiff no. 2 as co-sharer in the suit property and in passing a decree declaring share of the parties and order of injunction.
“… if other co-sharer refused to give consent then such construction would amount to ouster and injunction order may be passed from doing so by the court. It is settled that a co-sharer though in possession of the joint property, has no right to change the user of that property without consent of the other co-owners and that if the aggrieved co-owner comes to the court with due promptness for restraining the defendants from raising of a building on the joint property the Court can very legitimately pass decree of injunction”, also observed the Court.
The Court further noted that the wordings in rule 7 “it shall not be necessary to ask for general or other relief which can always be given to the same extent, as if it had been asked for” clearly indicates that such provision empowers court to grant any other relief arising out of same cause of action.
“It is true that relief not founded on the pleadings should not as a rule be granted but order VII, Rule 7 has the definite object of avoiding multiplicity of suits in cases, where relief can be granted in the facts and circumstances of the case, even if in the prayer portion it has not been distinctly pleaded”, said the Court
Accordingly, the Court allowed the second appeal and set aside the judgment of the Trial Court.
Cause Title- Sudhanghsu Mohan Roy, since deceased, represented by Smt. Jyotirmoyee Roy & Ors. v. Sri Haradhan Roy, since deceased, represented by Smt. Manju Roy & Ors.
