Construction on demarcated suit property may proceed subject to building rules and demolition risk at final decree.

The respondents (plaintiffs) filed Partition Suit No. 273 of 2024 in the court of the Civil Judge, Senior Division at Kandi, Murshidabad

The Trial Judge passed Order No. 9 dated June 21, 2025, granting a temporary injunction directing both parties to maintain status quo regarding the nature and character of the suit property

The appellant challenged this order, contending that they were constructing on a demarcated portion of the property separated by a boundary wall, as evidenced by a Commissioner’s report and title deeds

The appellant had already completed the ground floor construction up to the roof level

1. Whether the grant of a status quo injunction was justified given the stage of construction and the demarcated nature of the possession.

2. Whether the balance of convenience and the risk of irreparable injury favored the maintenance of the injunction or its vacation.

The Court applied the traditional tripartite test for civil injunctions under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, focusing on the principles of "balance of convenience and inconvenience" and "irreparable injury"

In partition suits, a co-sharer may be permitted to make constructions at their own risk and cost, subject to the final allocation of shares and without claiming special equity

The Court analyzed the Commissioner’s report, which confirmed that the appellant’s construction reached the roof level and was situated within a demarcated portion separated from the plaintiffs by a boundary wall

The Court reasoned that since the construction was already significantly progressed and physically separated, no "irreparable injury" would be caused to the respondents if the appellant were allowed to complete it

The Court found the "balance of convenience" favored allowing the construction more than halting it, provided certain safeguards were in place

The Court determined that the respondents' interests could be protected by stripping the appellant of any "special equity" and requiring the demolition of the structure at the appellant's cost if the specific land is not eventually allotted to them in the final decree

The holding permitted the appellant to proceed with construction subject to conditions: (i) construction must be on the demarcated portion and comply with building regulations; (ii) the appellant shall claim no special equity; (iii) construction is at the appellant's sole cost; and (iv) if the property is later allocated to other parties in the final partition decree, the appellant must demolish the construction at their own expense.

Application CAN 1 of 2025 was disposed of accordingly