- (1.) THIS application under Article 227 of the Constitution of India is directed against an order dated 28th April, 2009 passed by the learned District Judge, North 24-Parganas at Barasat in Misc.
(2.) APPEAL No. 31 of 2006 by affirming the Order being No. 35 dated 27th March, 2006 passed by the learned Civil Judge, Senior Division, 2nd Court in Barasat in Title Suit No. 57 of 2002 at the instance of the defendant no. 3/ appellant/ petitioner. The facts leading to the filing of this application before this Court are summarised hereunder:- (i) That plaintiffs/opposite party nos. 1 to 4 filed a suit for partition against the defendant/petitioner as well as the other defendants/opposite parties herein. In the said suit a decree of permanent injunction was also sought for against the principal defendant for restraining them from disturbing the plaintiffs peaceful possession over the suit property and/or from causing any disturbance or hindrance and/or from transferring or alienating the same to a third party and/or from causing any wastage and damages and/or from changing the nature and character of the suit property. (ii) An application for temporary injunction was filed by the defendant in the said suit inter alia praying for a temporary injunction against the principal defendants for restraining them from disturbing the plaintiffs possession over the suit property and/or from causing any disturbance or hindrance and/or from transferring or alienating the same to any third party and/or from causing any wastage and damages and/or from changing the nature or character of the same till the disposal of the suit. (iii) The case which was made out by the plaintiffs in their application for temporary injunction, is almost a replica of the case which was made out by them in their plaint of the said suit. (iv) Since the instant revisional application arises out of a proceeding arising out of the said temporary injunction matter, this Court feels that the case which was made out by the plaintiffs in their plaint as well as in their application for temporary injunction is required to be set out in brief for proper understanding of the merit of this revisional application. Accordingly, the case made out by the plaintiffs in their plaint and/or in their application for injunction is set out hereunder. (a) Various properties including the suit property, which is described in schedule A of the plaint were originally belonged to one Abdul Rahim, Ajijul Rahaman and others. Abdul Rahim and his co-sharers partitioned their properties amicably by registered deed of partition dated 11th April, 1968. Abdul Rahim became the absolute owner of the said A schedule property as the said property was exclusively allotted to him in the said partition deed. Abdul Rahim died subsequently leaving behind him surviving the opposite party no. 7 herein namely Abdul Karim, the opposite party nos. 1 to 4 (all sons) namely the plaintiff opposite party nos. 1 to 4 herein, widow Samirunessa Bibi (since deceased) and three daughters. The said heirs and heiress of Abdul Rahim were in joint possession of A scheduled property since the time of the death of their predecessors-in-interest. (b) On and from 26th March 2002, the appellant/petitioner herein namely Escon Consultant pvt. Ltd. , Smt. Pushpa Bose the defendant no. 1 (since deceased) and Eastern Paper mills and Machinery Pvt. Ltd. the defendant no. 2/opposite party no. 6 herein started disturbing the plaintiffs possession in the suit premises by claiming that Smt. Pushpa bose purchased the A schedule property from Abdul Karim, Samerunssa Bibi and three daughters of Abdul Rahim in the year 1974. They also claimed that the appellant/petitioner, Escon Consultant Pvt. Ltd. purchased the property from the said smt. Pushpa Bose and Eastern Paper Mills and Machinery Pvt. Ltd. by four deeds of sale in the year 1996. (c) The plaintiffs/ opposite party nos. 1 to 4 requested the petitioner herein and its vendors for partition of the A schedule property by meets and bounds but they refused to fulfill their request and as a result, the instant partition suit was filed claiming 4/8th share in the suit property. (v) Smt. Pushpa Bose and Eastern Paper Mills and Machinery Pvt. Ltd. entered appearance in the said suit and filed written statement therein. The petitioner herein also filed written objection to the plaintiffs application for temporary injunction praying for dismissal of the same by contending inter alia that since the said property was purchased by the petitioner from its vendors being the erstwhile owners thereof, for a valuable consideration, the plaintiffs cannot claim any right, title and interest in the suit property and thus the petitioner claimed that the plaintiffs claim for partition has no leg to stand. The petitioner, thus, claimed its title and possession in respect of the suit property on the strength of his purchase from Smt. Pushpa Bose and Eastern Paper Mills and Machinery Pvt. Ltd. who in their turn purchased the same from all the heirs of Abdul Rahim including the interest of the plaintiffs in 1974. Thus, in fact, the petitioner claimed that neither the plaintiffs have title in the suit property nor they have possession therein from the date of the sale of the interest of the heirs of Abdul Rahim in the suit property in favour of their purchaser from the year of 1974 as possession of the entire suit property was delivered by the heirs of Abdul Rahim to their purchasers at the time of such sale. (vi) These are the facts on which the respective parties have made their rival claims with regard to their respective title and possession in respect of the suit property.
(3.) IN fact, both the sale deeds of 1974 and of 1996 are now on record. Execution and registration of those deeds of transfers are not denied and/or disputed by the parties. Facts remains that at the time of transfer of the suit property by the heirs of Abdul Rahim in favour of the petitioners vendor, the plaintiffs/opposite party nos. 1 to 4 were minors. As such, the said sale deed was executed by the elder brother of those minors as their natural guardian. The validity and/or legality of the transfer of interest of those minor sons of Abdul Rahim viz; the plaintiffs/opposite party nos. 1 to 4 herein, is the real crux of the dispute involved in the suit. The legality of transfer of interest of the other heirs and heiresses of Abdul Rahim who jointly transferred their right, title and interest in the suit property by the one and single composite deed of sale in favour of the vendors of the petitioner in 1974 is not under challenge. As such, the petitioners right, title and interest in the suit property to the extent of the share of all the heirs and heiresses of Abdul Rahim excepting the share of the plaintiffs cannot be ignored. Both the plaintiffs and the petitioner are claiming their possession in the suit property. Certain receipts showing payment of revenue and/or taxes by the plaintiffs were produced in connection with the injunction hearing before the learned Trial Judge to show their possession in the suit property. On the contrary, petitioner claims that since such payment of revenue and/or taxes were made by the plaintiffs during the pendency of the suit, no reliance can be made upon those receipts. With these set of facts the learned Trial Judge held that in view of the provision contained in Sections 359 and 364 of the Mohammadan Law, the transfer of interest of the plaintiffs by their de-facto guardian in favour of the vendors of the petitioner in 1974 appears to be prima facie void and thus, the learned Trial Judge formed a prima facie view that the plaintiffs interest in the suit property remains unaffected by the said transaction in 1974 and as a result, they are still co-sharer in the suit property. Thus, the learned Trial Judge held that a prima facie case has been made by the plaintiffs in their application for injunction. Accordingly, the parties were directed to maintain status quo in respect of possession, enjoyment nature and character of suit property as on the date of passing of the said order till the disposal of the suit. Being aggrieved by and dissatisfied with the said judgment and order of the learned Trial judge, the defendant no. 3/petitioner herein preferred an appeal being Misc. Appeal No. 31 of 2006 before the learned District Judge at Barasat. While disposing of the said appeal, the learned District Judge held that this is too early a stage where the legality and validity of the sale of the minors interest in the suit property by their de-facto guardian can be considered by the Court. The learned Appeal Court, thus, held that the learned Trial Judge erred in coming to this conclusion at this stage of hearing of the temporary injunction matter that the sale deed dated 18th November, 1974 is a void deed though no such plea was taken by the plaintiffs in the plaint.;