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Synopsis

The Supreme Court has recently modified a Bombay High Court order which allowed demolition of commercial buildings constructed on a suit property following a preliminary decree for partition.

A bench of Justices Vikram Nath and Rajesh Bindal disposed of an appeal filed by M/s Multicon Builders against the high court's Nagpur bench order and directed the trial court to proceed further for passing the final decree.

A civil suit was filed by one Sheela, widow of one Narendra Fiske for declaration, partition and separate possession of the family property. In the suit, counter claim was filed by the defendant nos. 1, 4 to 8. The preliminary decree was passed by the trial court on February 27, 2012 determining the shares of the plaintiff and defendant nos 1 to 8. The defendants were restrained from alienating the suit property till partition takes place by metes and bounds. The preliminary decree passed by the trial court was not challenged by the plaintiff and defendant nos. 1 to 8.

However, defendant no 9- present appellant- M/s Multicon Builders was held to be having no right, title or claim in the suit property. 

The defendants were directed to demolish construction raised in violation of the Municipal Laws. 

The appellant challenged the order passed in the preliminary decree before the high court, which modified the operative part of the order to the extent that that the defendant nos 2 and 9 were directed to demolish the construction on the suit plot forthwith.

The appellant, who was not a member of the family, claimed right through some of the co-sharers. 

It claimed that the respondent no 2 – one Chandrashekhar Deshmukh had transferred his share to him with the partition of the property amongst the plaintiff and defendant nos. 1 to 8, his rights were adversely affected as he had spent huge amount in raising construction on the plot. 

After hearing the parties, the bench said, "In our view, the order passed by the Trial Court passing the preliminary decree in a partition suit as upheld by the High Court, does not deserve interference by this Court as admittedly there is no challenge to the same by any of the co-sharers (family members) of the property in dispute with reference to their respective shares."

The court pointed out that the final decree was yet to be passed and at that stage the property will be divided by metes and bounds. 

It further noted that the preliminary decree was being contested only by the appellant who claimed that defendant no 2 – Chandrashekhar Deshmukh had transferred his share to him. In some part of the property two residential houses were located which were stated to be in occupation of Chandrashekhar Deshmukh (Respondent No 2) and Chandrakant Deshmukh (Respondent No 3) whereas on the other part commercial complex had been constructed, in which the appellant was claiming interest. 

"We have no doubt that in the process of passing final decree for partition of the property by metes and bounds, the court below will consider all aspects in terms of settled principles of law for that purpose. In case any property in possession of any of the co-sharers comes to his share it can very well be protected," the bench said.

"In our view, demolition of the already constructed buildings may not be in the interest of any of the parties as the same can be considered at the time of passing of final decree, with reference to the construction, authorised by the local authority," the bench said.

Without expressing any opinion on the construction raised unauthorisedly and on the merits of the controversy, the bench modified the high court's order and directed the trial court to expedite disposal of the matter, as the matter ilwas quite old.

Case Title: M/s Multicon Builders Vs Sumandevi and Others