NEMAI DAS vs PURNA DAS @ PURNA CHANDRA DAS AND ORS

In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present: The Hon’ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon’ble Mr. Justice Sandip Kumar De
FMA 817 of 2026
with
CAN 1 of 2026
Nemai Das
Vs.
Purna Das @ Purna Chandra Das and Ors.
For the appellant : Mr. Ganesh Shrivastava,
Mr. Sukanta Das

For the respondent no. 1 : Mr. Tanmoy Chowdhury,
Ms. Peu Bhattacharjee,
Ms. Ritoprita Ghosh,
Ms. Sulagna Sarkar
Heard on : 02.09.2026
Judgment on : 02.09.2026
Sabyasachi Bhattacharyya, J.:
1. We admit the appeal and take it up for disposal in view of the short
points involved.
2. In view of the defendants/respondent nos. 3 and 4 (unserved
respondents) not being affected by the outcome of the appeal,
service on the said respondents is dispensed with.
3. Learned counsel for the defendant/appellant contends that the
learned Trial Judge, while dismissing the application filed by the

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defendant/appellant under Order XXXIX Rule 4 of the Code of Civil
Procedure, made an observation that although from the
photographs attached to the written objection filed by the plaintiffs
it transpires that some construction work had already been
completed by the appellant up to the roof level, since mixed
questions of fact and law were involved, the ad-interim order was
not vacated.
4. It is contended that in the facts of the case, the appellant has
already constructed up to the roof level of the ground floor and
undertakes not to make any further construction above the roof
level, subject to being permitted to cast the roof and complete the
construction up to the ground floor level.
5. It is also pointed out that initially an ad-interim order was granted,
against which an appeal was preferred, which met with a dismissal.
However, the application under Order XXXIX Rule 4 of the Code was
made on subsequent cause of action due to substantial hardship
being suffered by the appellant.
6. Learned counsel appearing for the plaintiffs/respondents opposes
such prayer and argues that subsequent to the impugned order, the
plaintiffs/respondents came to know that the appellant is raising
the construction unlawfully, by obtaining a sanction plan only after
the ad interim order of injunction was passed by the learned Trial
Judge, thereby flouting the said order of ad interim injunction.
7. However, upon query of the Court, learned counsel for the
plaintiffs/respondents submits that these facts were not before the

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Trial Court at the time of passing of the impugned order, since the
plaintiffs/respondents were not aware of the said facts at the
relevant juncture.
8. Upon a consideration of the arguments of parties and the materials
before us, we find that it is an admitted position that the
defendant/appellant has already made substantial construction of a
single storey on the suit premises up to the roof level; only the
finishing touches are left to be given.
9. There is nothing on record to show that such construction has been
made beyond the share of the appellant.
10. Since construction has already been made up to the said level,
considering the balance of convenience and inconvenience, we are
of the opinion that the ground floor level construction ought to be
permitted to be completed by the appellant by casting the roof and
finishing the walls and/or affixing of doors, windows etc.
11. However, such construction shall be without prejudice to the
rights and contentions of the parties.
12. In such view of the matter, FMA 817 of 2026 is allowed on contest
against the plaintiffs/respondents.
13. The impugned order, bearing Order No. 20 dated May 15, 2026
passed by the learned Civil Judge (Senior Division), at Ghatal,
District –Paschim Medinipur in Title Suit no. 73 of 2025, is hereby
set aside, granting liberty to the defendant/appellant to complete
the construction up to the roof level of the ground floor on the suit
premises, by casting the roof, completing the walls and affixing

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doors and windows if necessary. However, it is made clear that the
defendant/appellant shall not claim any special equity by dint of
such construction and shall, in the event so directed by the learned
Trial Judge at the final hearing of the partition suit, from which the
present appeal arises, demolish such construction at the
appellant’s own cost. The construction shall be completed at the
own cost of the appellant, strictly in accordance with the sanction
plan, without prejudice to the rights and contentions of the parties
to the suit.
14. CAN 1 of 2026 is consequentially disposed of as well.
15. It is expected that the learned Trial Judge shall dispose of the
pending temporary injunction application as expeditiously as the
business of the said Court permits. Both parties will be at liberty to
bring on record subsequent events, if any, in connection with the
injunction application, by way of formal pleadings.
16. No order as to costs.
17. Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the parties upon compliance of requisite formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Sandip Kumar De, J.)
A D – 11

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Ct No.16
02.09.2026
(SSS)