Namita Mistry And Another v. Paritosh Mistry And Others

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** CO/12/2021 Namita Mistry and another ...

Petitioners Vs.

Paritosh Mistry and Others.

...

Respondents Mr. G. Binnu Kumar, Advocate, ... for the petitioners Mr. Sudarshan Biswas, Advocate ... for the respondent No.1 Mr. A.K. Mandal, Advocate .. for the respondent No.3 September 16, 2021 [GNC] Item No.9 The present Revisional application is directed against an order No.29 dated 30th July, 2021 passed by the Joint Civil Judge (Senior Division), Port Blair in Title Suit No.275 of 2019 by which an application under section 151 of the Code of Civil Procedure was rejected.

A suit for partition was filed by the petitioners along with the respondent nos. 1 and 2 claiming separation of the shares in the joint property. Apart from the residential house the joint property includes the plantation of arecanut coconut and others which augments income periodically.

Amidst the pendency of the said suit, an application for temporary injunction was taken out which came to be disposed of directing the parties thereto to maintain status quo over the house structure situated on the suit property by maintaining respective possession till the disposal of the suit. It was

specifically observed therein that the said order of injunction is not operative over the remaining part of the suit property. The application under section 151 of the Code of Civil Procedure was taken out by the petitioners seeking a directing for access to other portion of the suit property. The trial court proceeded to dismiss the said application as the petitioners have not been able to show the clear case of specific possession and the order as prayed for would amount to modification and/or recalling of the earlier order of injunction. There appears to be an inconsistency and fallacy in the reasons recorded in the impugned order.

The order of injunction was restricted to the house property with categorical observation that it is not extended to the other portion of the suit land and therefore the question of recalling and/or modification of the order of the injunction does not arise. Furthermore, in a suit for partition every party thereto is plaintiff against other. There is no concept of plaintiff or defendant in a partition suit as each cosharer is claiming his right in undivided share in the property and defending such shares against the co-sharers. Even the concept of possession in a partition suit is to be construed in the perspective of the possession in respect of the share and on behalf of the other co-sharers except when a clear case of ouster is made out with convincing material.

Denial of the admitted cosharer to have an access to the portion of the property is to be considered in the light of the facts pleaded by respective parties and not in the manner as has been done in the impugned order.

Since the trial court has not decided the application on merits and has proceeded to reject the same on technical ground it would not be proper for the revisional court to usurp the power of the original court and decide the application. The order impugned is, thus, set aside.

The trial court is directed to re-consider the application under section 151 of the Code of Civil Procedure filed by the petitioners herein on or before the closure of the court for long puja vacation after affording opportunity of hearing to the respective parties and shall dispose of the same on merits in accordance with law.

The revisional application is, thus, allowed. ( Harish Tandon, J. )