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2012 DIGILAW 191 (CAL)

Islam Ali v. Amir Ali

2012-03-07

SOUMEN SEN

body2012
Judgment Soumen Sen, J. 1. THE denial of a right to a co-sharer to raise construction in his demarcated portion of the land is the subject matter of challenge in this revisional application. 2. IN or about January, 2010, the opposite parties instituted a suit for partition and permanent injunction over and in respect of 9 ? decimals of the land in the suit property as described in the schedule to the plaint. The plaintiffs claimed to be the sons and daughter of one Sk. Fakir Mohammad. The suit property according to the plaintiff originally belonged to Keramat Ali since deceased and Belat Ali since deceased (hereinafter referred to as the original owners). Their names were duly recorded in the C.S. record of right. The said original owners were in exclusive possession over the suit property. They were residing and cultivating fruit bearing trees and engaged in Pisciculture. During their lifetime, the original owners amicably partitioned the suit property by reason whereof Keramat Ali became the owner of demarcated 17 ? decimals of Bastu and Pukur and Belat Ali got a demarcated 17 ? decimal of the suit property. After such amicable partition, they were enjoying their respective demarcated properties as exclusive owners thereof. Keramat Ali died intestate living behind him his wife Ammajan Bibi and three sons, namely, Sk. Fakir Mohammad (since deceased), Sk. Islam Ali and Sk. Rahul Amin as his legal heirs and representative. In or about 24th May, 1951, Sk. Fakir Mohammad purchased 9 decimals of Bastu and Pukur comprising in Dag Numbers described in the schedule from Baletan Bibi by a registered deed of kobala and, thereafter, on 21st December, 1951, sold and transferred 4 ? decimals of Bastu and Pukur out of the aforesaid 9 decimals to Rajab Ali Molla by a registered deed of kobala. Ammajan Bibi along with two sons during their lifetime sold and transferred 6 ? decimals of land in respect of the schedule property on 15th January, 1957 to Sk. Fakir Mohammad by a registered deed of Kobala and delivered vacant and khas possession of the said land to Sk. Fakir Mohammad since deceased. Thereafter on 5th July, 1963, Sk. Fakir Mohammad sold and transferred 4 3/8 decimals of Bastu land and Pukur comprising in Dag Numbers as mentioned in the schedule to Sk. Islam Ali by a registered deed of kobala. 3. THEREAFTER, Sk. Fakir Mohammad since deceased. Thereafter on 5th July, 1963, Sk. Fakir Mohammad sold and transferred 4 3/8 decimals of Bastu land and Pukur comprising in Dag Numbers as mentioned in the schedule to Sk. Islam Ali by a registered deed of kobala. 3. THEREAFTER, Sk. Fakir Mohammad, Rajab Molla and Sk. Islam Ali sold one Cottah Bastu and Pukur comprising Dag Numbers as mentioned in the schedule on 4th June, 1969 in favour of Sk. Rahul Amin by a registered deed. Sk. Fakir Mohammad died intestate leaving behind him his two sons, namely, Sk. Amir Ali and Sk. Sayeed Ali and four daughters, namely, Farida Bibi, Hamida Bibi, Feroza Bibi and Zaita Bibi. All the three daughters, subsequently, on 1st January, 2009 transferred their rights, title and interest in respect of the suit property which they have acquired by virtue of inheritance from their father in favour of their two brothers, namely, the plaintiffs by an oral Heba in presence of their relatives and thereafter delivered khas possession thereof to the plaintiffs. By reason thereof, the plaintiffs acquired 9 ? decimals of land out of the schedule property by virtue of inheritance and different sale-deeds and had and have been in possession of the same, and the plaintiffs claimed to be in possession of the said 9 ? decimals of land and carrying on agricultural activities and using the usufructs thereof. They are also residing in the portion of the suit property. They also claimed to be paying the land revenue and other taxes. The plaintiffs contend that the name of the original owners had been originally recorded in the C.S. Record Of Right but the R.S. Record Of Right did not represent the true state of affairs as regard to the names and quantum of land and inherited shares of the heirs of the original owners in the suit property. The defendants are aware of the true facts but in spite thereof they are claiming joint possession even in respect of the portion which by reason of the aforesaid stated facts exclusively belonged to the plaintiffs. The defendants are also in joint possession of their respective inherited shares in the suit property which has not been partitioned as yet. The plaintiffs alleged that the defendant Nos. The defendants are also in joint possession of their respective inherited shares in the suit property which has not been partitioned as yet. The plaintiffs alleged that the defendant Nos. 1 and 2 in collusion and conspiracy and by practising fraud mutated their names illegally and wrongfully in respect of the suit property with a view to deny the right, title and interest of the plaintiffs in respect of their shares in the said suit properties. The plaintiffs further claimed that the plaintiffs and the defendants have been in joint possession of their respective inherited share as well as purchased forming part of the suit property and the suit property is yet to be partitioned. The plaintiffs are alleging that the defendant No.1 was forcibly trying to raise construction upon the vacant land forming part of the suit property in order to change the nature and character of the said property and to sell and/or encumber demarcated major portion of the suit property to third party. On the basis of the aforesaid facts the plaintiff instituted the said suit and filed an application for temporary injunction. 4. THE statements made in the application for injunction are almost verbatim reproduction of the facts stated in the said plaint. THE petitioner relied upon several registered deeds and khazna receipts along with general diary to justify their claim for a temporary injunction restraining the defendant No.1 his men servants and agents from transferring the suit property to any third person or from changing the nature and character of the suit property in any manner whatsoever. The petitioner herein contested the said proceeding by filing written objection. The petitioners/defendant No.1 contended that the schedule of the plaint is vague and indefinite. They further claimed that the property had already been partitioned amicably and the defendants are enjoying their respective demarcated portion by mutating their names and paying taxes in respect of their demarcated portion in the said 17 ? decimals of land as stated in the plaint. The defendants disputed the existence of any such 9 ? decimal of land as a unit by reason of the partition already effected between the parties. The petitioner in his written objection in paragraph 13 and the sub-paragraphs mentioned thereunder, relied upon various documents to show that an amicable partition was entered into and on the basis thereof. The defendants disputed the existence of any such 9 ? decimal of land as a unit by reason of the partition already effected between the parties. The petitioner in his written objection in paragraph 13 and the sub-paragraphs mentioned thereunder, relied upon various documents to show that an amicable partition was entered into and on the basis thereof. The parties are in possession of their respective demarcated portion in the suit property. The defendants categorically denied joint possession as alleged in the plaint and submitted that the property had already been partitioned amicably on the basis thereof the parties are in distinct possession of their respective demarcated portion. On the basis of such partition, the parties have duly mutated their names as would appear from the revenue records and are depositing taxes assessed on the basis of possession of the respective parties. The petitioners submitted that it would appear from the record that the names of the parties have already been separately assessed and separately recorded in the record of rights. The property has been amicably partitioned and separate possession has been recorded. Such recording was done on the basis of the amicable partition arrived at between the parties. The parties are in possession of their demarcated portion. The petitioner is in exclusive possession of his demarcated allotted portion. In view of the dilapidated condition of the dwelling house, the petitioner demolished the house and constructing the dwelling house and in accordance with the building plan duly sanctioned by the local municipality. The building plan was sanctioned on 18th December, 2009 and valid upto 17th December, 2012.The father of the plaintiffs, namely, Fakir Mohammad have sold and transferred to the different purchasers more than his acquired share by demarcating the same as described in the schedule of the registered deed of conveyance relied upon by the plaintiff and as such the question of further partition or any share of the plaintiffs could not and does not arise. On the basis of such stated facts mentioned in the written objection, the present petitioner, namely, defendant No.1 prayed for rejection of the said application. The Trial Court considered the aforesaid facts and was of the opinion that the plaintiffs have been able to make out a prima facie case in their favour but did not consider the other factors necessary for granting an order of injunction. The Trial Court considered the aforesaid facts and was of the opinion that the plaintiffs have been able to make out a prima facie case in their favour but did not consider the other factors necessary for granting an order of injunction. The learned Trial Court recorded that from the documents filed by the plaintiffs, it prima face appears that "they have got certain portions of the suit property in their names and so when the suit has been filed for partition, they have got every inch of the suit property". Accordingly, the Trial Court passed an order of status quo. The Trial Court, however, also had taken note of the fact that the original ownership is admitted by both the parties and also the fact of amicable partition. 5. SK. Islam Ali, the defendant No.1 in the suit preferred an appeal against the said order of status quo. 6. IT appears that before the Appellate Court it was argued that execution of registered deed between the parties may not be necessary since partition may be oral coupled with attenuating circumstances. The judgment of the Hon’ble Supreme Court reported in 1995 SC 1728 (Digambar Adhar Patil Vs. Devram Girdhar Patil and Ors.) and AIR 1988 SC 881 (Roshan Singh and Ors. Vs. Zile Singh and Ors.) were relied upon for the said proposition. IT was argued that in the instant case, the suit property was partitioned orally. Mutation of name in record of rights and allotment of separate holding number, given by local municipal authority conclusively and definitely points to the fact of oral and amicable partition between the parties. Per contra, the opposite parties relied upon 29 CWN 229 (Jolfa Bibi Vs. Ajaladdin and Ors.) and 60 CWN 1006 (Chandrakanto Goswami Vs. Ram Mohini Devi and Ors.) for the proposition that mere entry of the name in the record of rights did not confer any title. The Appellate Court after taking into consideration the aforesaid facts held that there are serious disputes with regard to the title to the property and the rights of the parties cannot be decided at the stage of hearing of inter locutory application. It was further observed that not only the factum of partition is disputed, but the title is also in dispute. These disputes can only be settled at the trial of the suit after taking evidence. It was further observed that not only the factum of partition is disputed, but the title is also in dispute. These disputes can only be settled at the trial of the suit after taking evidence. The Appellate Court relied upon the judgment of the Hon’ble Supreme Court reported in 2004 (8) SCC 488 (Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass) in continuing the order of status quo passed by the Trial Judge. 7. MR. Bhattacharya, learned Counsel appearing on behalf of the petitioner submits that the Trial Court passed the order of status quo only being, prima facie, satisfied but did not consider the other cardinal tests to be applied in granting such equitable relief. The Trial Court ought to have considered the balance of convenience and inconvenience and irreparable loss and prejudice. The Appeal Court also did not consider the aspect of balance of convenience, irreparable prejudice and conduct of the parties. MR. Bhattacharya contended that once the Trial Court accepted the fact that the amicable partition is not in dispute then the possession of the petitioner or the right of the petitioner to construct house on the demarcated portion of the suit schedule property in respect whereof a building plan already been sanctioned could not have been denied and the petitioner should have been allowed to raise the construction subject the result of the suit. It is argued that it is not in dispute that out of the 17 ? decimal of the suit land, the plaintiffs claimed to be in possession of a demarcated portion on the basis of an amicable partition between the parties. 8. MR. Bhattacharyya relied upon AIR 2008 SC 2291 (Mandali Ranganna and Ors. etc. V. T. Ramachandra and Ors.) for the proposition that while considering an application for grant of injunction, the Court would not only take into consideration the basic elements in relation thereto, namely, the existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. MR. Bhattacharya relied upon Paragraph 18 of the judgment and submitted that the conduct of the plaintiffs clearly disentitled the plaintiffs from restraining the petitioner in raising the construction on the basis of a sanctioned plan. MR. Bhattacharya relied upon Paragraph 18 of the judgment and submitted that the conduct of the plaintiffs clearly disentitled the plaintiffs from restraining the petitioner in raising the construction on the basis of a sanctioned plan. It was submitted that the record of rights and other materials on record would clearly show that the petitioner is in possession of such demarcated portion continuously for a considerable length of time and the unit of land under possession of the petitioner has been separately assessed and the revenues are paid by the petitioner on the basis of such assessment. The plaintiffs never questioned the entries made in the record of rights which correctly record the shares and quantum of land and inherited shares of the heirs of original owners in the suit property. Mr. Bhattacharya has relied upon Paragraphs 18 and 19 of the said report which are reproduced herein-below:- "18. While considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. We are not, however, oblivious of the fact that grant of refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative. Contentions raised by the parties must be determined objectively." 19. This Court in M. Gurudas and Ors. Vs. Rasaranjan and Ors. ( 2006 (8) SCC 367 ) noticed: "19. A finding on "prima facie case" would be a finding of fact. However, while arriving at such a finding of fact, the Court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. However, while arriving at such a finding of fact, the Court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhavan that the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. but we are not persuaded to delve thereinto." 9. MR. Bhattacharya submits that the said judgment was delivered in connection with a partition suit and in Paragrah 24, the Hon’ble Supreme Court permitted the respondents to carry out the construction of the building subject to the ultimate decision of the suit. On the principle of injunction and tests to be applied by the Court reference was also made to AIR 1993 SC 276 (Dalpat Kumar and Anr. v. Prahlad Singh and Ors.). In the said judgment, the Hon’ble Supreme Court in Paragraph 6 dealt with the aspect of granting temporary injunction in the manner following:- "6. The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by manes ingenuity in a given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from the facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success." 10. PER contra, the learned Counsel appearing on behalf of the plaintiffs relying upon 2004 (8) SCC 488 (Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass) submitted that unless and until a case of irreparable loss and damages are made out by the party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. The plaintiffs contended that there is no infirmity, illegality or irregularity in the order passed by the Trial Judge as also by the Appellate Court. It was further argued that since both the Courts below have property exercised their discretion, the same should not be interfered with in this revisional jurisdiction. The plaintiff claims partition of the suit property. The plaintiffs and the defendants accepted amicable partition. The parties are in possession of the suit properties. The plaintiffs claim that they are in possession of demarcated portion of the suit property and claim more shares to the extent of 9 ? decimals of land in the suit property. The defendants also made such claim. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place. ( 2010 (11) SCC 476 ) (Budh Ram and Ors. Vs. Bansi and Ors.). 11. HOWEVER, in this case, once the amicable partition is accepted equities demand that the parties in possession of their respective demarcated portion should be allowed to enjoy such portion of the property which they were enjoying for a long period of time without any let or hindrance or annoyance till a final decision is reached in the suit. The plaintiff claimed partition also on the basis of possession in a demarcated portion of the suit property and they should be allowed to enjoy such portion of the property which they are in possession to the exclusion of other co-owners. It appears from record that both the plaintiffs and the defendants have paid their respective khaznas and are in possession of their demarcated portion of land for long and the dispute started when the petitioner after demolishing the existing structure in which he was residing, tried to raise his construction on the basis of a sanctioned building plan. The inclusion of the names of the parties in the record of rights are not under challenge before the concerned LRO and BLRO. At least there is no material on record suggesting such challenge. The inclusion of the names of the parties in the record of rights are not under challenge before the concerned LRO and BLRO. At least there is no material on record suggesting such challenge. Some challenge is thrown in the plaint and have been denied by the defendants in their written objection with regard to recording of names in the revenue records. The Division Bench of our High Court in a judgment reported in 2009 (2) CLJ (CAL) 153 (Sanghati Pal Vs. Prakash Adhuryya and Ors.) held that in such a situation liberty should be given to the party who is in possession of the demarcated portion to raise construction in such demarcated portion they claimed to be in possession without creating any equity in his favour and subject to the result of suit for partition. 12. THE Division Bench followed the ratio laid down by the Hon’ble Supreme Court in Mandali?s Case (supra) and allowed such construction to take place on equitable consideration. It is for the parties to prove at the trial that what is stated in the record of rights or in the deeds are not the real state of things. When the plaintiff is in possession of the demarcated portion and the record shows that the defendants are also in occupation of certain specific and demarcated portion of the land although allegedly not partitioned by meats and bounds there is no reason purely from equitable consideration to restrain the petitioner from raising construction in terms of the building plan. THE balance of convenience and prejudice would be in favour of granting such equitable relief to the petitioner/defendant. In view thereof, the order of the First Court and the Appellate Court is modified to the extent that the petitioner would be at liberty to raise construction strictly in terms of the sanctioned building plan without claiming any equity and subject to result of the suit for partition. THE petitioner, however, shall not alienate, encumber and/or transfer the said land with building in any manner whatsoever till the disposal of the suit. The plaintiffs and the defendants are, however, restrained from alienating, encumbering and or transferring the suit property in any manner whatsoever without the leave of the trial Court. In view thereof, the revisional application succeeds in part. There shall be, however, no order as to costs. 13. The plaintiffs and the defendants are, however, restrained from alienating, encumbering and or transferring the suit property in any manner whatsoever without the leave of the trial Court. In view thereof, the revisional application succeeds in part. There shall be, however, no order as to costs. 13. URGENT xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.