FMA/1103/2026 of SITANGSHU DHARA Vs SK. MAHASIN ALI AND ORS on 18 September 2026

1. The present appeal has been preferred against an order whereby an application under Order XXXIX Rule 4 of the Code of Civil Procedure, filed by the defendant in a suit for partition, was allowed, thereby modifying the ex parte ad interim injunction granted in favour of the plaintiff/present appellant and permitting the respondents to complete a construction which they had already commenced on the suit property.

2. Learned senior counsel appearing for the appellant argues that the defendants/respondents misled the trial court by averring in the application under Order XXXIX Rule 4 of the Code that they are residing somehow with their family in a rented accommodation, which necessitated the construction to be raised on the suit property.

3. It was further pleaded that a sanction plan had been obtained for the said construction, which was believed by the learned Trial Court.

4. However, from the tenancy agreement submitted by the respondents themselves, as annexed to the present application as well, it is found that the tenancy was given only for official purpose under the name and style of one ‘Mehanati Transport’.

5. Thus, the very argument that the respondents are residing in a rented accommodation, on the strength of such purported rent agreement, is belied by the tenancy agreement itself.

6. It is further submitted that the sanction relied on by the respondents was obtained much after the Commissioner’s report was filed and the initial ex parte ad interim injunction order was passed.

7. Thus, at the relevant juncture, the alleged construction was being made by the respondents unlawfully, by flouting the law, without any valid sanction plan.

8. The appeal is admitted, to be heard on the above questions and the other grounds taken in the memorandum of the appeal, and is taken up for hearing on the short points involved.

9. Learned counsel for the respondents denies the allegations of the appellant and argues that there was a provisional sanction plan initially, on the strength of which the construction was being raised, which was finally approved in the month of June, 2025.

10. It is further submitted that although the tenancy agreement granted tenancy for official purpose, one hall therein is being used by the respondents and their family members for residential purpose for lack of alternative residential accommodation.

11. Thus, it is submitted that mere mention of the purpose of the tenancy to be official in the tenancy agreement does not necessarily indicate that the same is not being used for residential purpose, at least with regard to a portion of the same.

12. Learned counsel for the respondents further submits that the construction-in-question has already been completed pursuant to the impugned order and as such, the appeal has been rendered infructuous.

13. In view of such submission, it is obvious that nothing remains to be decided in the appeal.

14. Hence, FMA 1103 of 2026 is dismissed as infructuous.

15. CAN 1 of 2026 is consequentially disposed of as well.

16. However, in the event the appellant has any grievance as to alleged violation of governing laws by the respondents in making the construction and/or the said construction having been made without obtaining valid sanction at any stage, it will be open to the appellant to ventilate such grievances before the appropriate statutory authority, in which case such grievance shall be addressed in accordance with law by hearing all concerned, without being influenced unnecessarily by the dismissal of the present appeal.

17. There will be no order as to costs.

18. Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.

(Sabyasachi Bhattacharyya, J.) I agree.

(Sandip Kumar De, J.) AD-21 AK