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2014 DIGILAW 522 (CAL)

Parimal Dey v. Anita Agarwal

2014-06-18

HARISH TANDON

body2014
JUDGMENT Harish Tandon, J. These three revisional applications are filed by the plaintiff/petitioner against a judgment and order passed by the Appellate Court reversing the order of injunction passed by the Trial Court in three different partition suits based on identical right, title and interest over the several properties forming the subject matter of three different suits. The incidence of acquiring the right, title and interest in respect of the properties forming the subject matter of the aforesaid three suits by the defendants are similar in nature and, therefore, to avoid the unnecessary details, the facts recorded hereinafter would be deemed to refer their respective deeds by which they founded their claims. Admittedly one Ganda Sardar became the absolute and exclusive owner in respect of various plots of land comprised in Schedule ‘C’ to the respective plaints on the strength of a deed of partition dated November 29, 1945. Upon the death, the said admitted owner left behind him surviving his widow, Khotegan Bewa and the only son, Golap Rabbani Sardar, who inherited undivided two anna share and 14 anna share respectively. By a deed of sale dated July 26, 1948, the said Khotegan Bewa sold, transferred and conveyed her undivided two anna share in respect of the said property to her son namely Golap Rabbani Sardar who became the absolute owner of the property held by his father. Golap Rabbani executed a deed of settlement dated November 3, 1983 in favour of his two sons namely Abul Basar Sardar and Abul Kalam Sardar. Subsequently the said Golap Rabbani went for heavenly abode on August 15, 1986. Golap Rabbani married twice during his lifetime and left two sons i.e. Abul Basar Saddar and Abul Kalam Sardar and three daughters namely Taslima Bibi from his first wife and Jarina & Hasina Bibi from his second wife. By several deeds of sale executed between December 2009 and May 2010, the defendants of the respective suits acquired the right, title and interest in respect of the entire ‘C’ Schedule property on a valuable consideration mentioned therein. For clear exposition of the facts and better understanding, it would be apposite if the facts pleaded in the respective Title Suit involving three revisional applications are narrated separately. For clear exposition of the facts and better understanding, it would be apposite if the facts pleaded in the respective Title Suit involving three revisional applications are narrated separately. C.O. 582 of 2014 The above revisional application arises from a judgment and order dated 15th February, 2014 passed by learned Additional District Judge, 13th Court, Alipore in Miscellaneous Appeal No. 397 of 2013 reversing the order no. 58 dated July 9, 2013 passed by learned Civil Judge (Senior Division), Baruipur in Title Suit No. 118 of 2011. The facts narrated in the aforesaid Title Suit are adumbrated herein below: The property comprised in Schedule ‘C’ and other properties to the plaint originally belonged to one Ganda Sardar and Abdul Motaleb Sardar as co-owners who amicably partitioned their joint properties by executing and registering a deed of partition dated November 20, 1945. By virtue of the said partition deed, the entire property comprised in Schedule ‘C’ to the plaint was allotted to Ganda Sardar who became the absolute and exclusive owner thereof. Upon the death of the absolute owner, the ‘C’ Schedule property devolved upon his widow Khotejan Bewa and only son, Golap Rabbani Sardar, who owned undivided 2 anna share and undivided 14 anna share respectively. By executing a deed of sale on July 26, 1948, the said Khotejan sold, transferred and conveyed her undivided two anna share in respect of ‘C’ Schedule property to her son namely Golap Rabbani Sardar who became exclusive owner of the said property. Golap Rabbani Sardar married twice having two sons namely Abul Basar Sardar and Abul Kalam Sardar and a daughter, Taslima, from the first wife and two daughters namely Jarina Bibi & Hasina Bibi from the second wife. Golap Rabbani Sardar executed a deed of settlement dated November 3, 1983 described in Schedule ‘B’ to the plaint giving 685 decimal of land together with the structure and appurtenant thereon to his aforesaid said two sons which are detailed in Schedule ‘D’ to the plaint. The said Golap Rabbani Sardar died on October 15, 1986 leaving five children as aforesaid. It is alleged that the purported deed of settlement is nothing but the Will as the settler intended the operation of the said deed to take effect after his death. The said Golap Rabbani Sardar died on October 15, 1986 leaving five children as aforesaid. It is alleged that the purported deed of settlement is nothing but the Will as the settler intended the operation of the said deed to take effect after his death. According to the plaintiff/petitioner, the settler under the Mohammedan Law was entitled to bequeath 1/3rd of his property and, therefore, the said deed is valid to the extent of 1/3rd share comprising 542 decimal of land and not the entire one. The plaint proceeds that upon the death of the said Golap Rabbani Sardar, his two sons and three daughters from two wires who predeceased him inherited 2/7th share and 1/7th share each in the ‘C’ Schedule property. The aforesaid two sons and a daughter namely Taslima Bibi sold and transferred 22 decimal of land to the opposite party nos. 1 to 4 by executing and registering a sale deed dated May 14, 2010 and further transferred 20 decimal of land in favour of the opposite party nos. 5 & 6 by another registered sale deed of the even date. Whereas the another daughter namely Jarina Bibi gifted 2.285 decimal of land out of plot no. 463 and .71 decimal of land comprised in plot no. 464 and other lands to the plaintiff /petitioner on the strength of deed of gift dated 1st December, 2011. The properties purchased by the opposite party nos. 1 to 6 and acquired by the plaintiff/petitioner are described in Schedule ‘A’ to the plaint. The plaintiffs, therefore, claims as co-ownership in respect of the property comprised in Schedule ‘A’ to the plaint and seeks for a partition upon declaring the deed of settlement to be invalid, illegal and void document. On the above facts, an application for temporary injunction was taken out restraining the defendants from making any construction of boundary wall in the suit property and also from changing the nature and character of the same. The opposite party nos. 1 to 6 in opposition to an application for temporary injunction asserted their right on the basis of the registered deed of conveyance executed by the said two sons and Taslima Bibi, who said to have acquired the property on the basis of purported deed of settlement executed by the said Golap Rabbani Sardar. The opposite party nos. 1 to 6 in opposition to an application for temporary injunction asserted their right on the basis of the registered deed of conveyance executed by the said two sons and Taslima Bibi, who said to have acquired the property on the basis of purported deed of settlement executed by the said Golap Rabbani Sardar. It is averred therein that the purported deed of settlement was executed with concurrence and consent of the heir of the Golap Rabbani Sardar and the mutation was affected in the concerned record of rights. It is stated that a deed of declaration was executed on 6th July, 2010 by the said Hasina Bibi & Jarina Bibi confirming the sale made by his brothers. It is further averred that the three daughters executed separate documents dated 11th January, 1988 giving consent to the bequeath made in the form of deed of settlement and, therefore, they were divested themselves of right, title and interest in respect of the properties comprised in the said purported deed of settlement. On the deed of gift executed by Jarina Bibi in favour of the plaintiff/petitioner, it is stated that the same is not valid firstly; that the Jarina Bibi was not having any transferable right and secondly; the possession of the property was not given as it remains with the opposite party nos. 1 to 6. C.O. No. 583 of 2014 This revisional application is filed challenging the order dated February 15, 2014 passed by the Additional District Judge, 13th Court, Alipore in Miscellaneous Case No. 398 of 2013 reversing the order no. 57 dated July 9, 2013 passed by the Civil Judge (Senior Division), Baruipur in Title Suit No. 139 of 2011. The claims of the plaintiff adumbrated in the said Title Suit is on the strength of the deed of gift executed by Jarina Bibi on December 1, 2010 gifting deed 14 decimal out of plot no. 476, .57 decimal in plot no. 477, 2.425 decimal in plot no. 482, .71 decimal in plot no. 483 and 1.57 decimal in plot no. 490 being 1/14th share in the properties comprised in Schedule ‘A’ to the plaint. The plaintiff/petitioner admits the rest of the shares in respect of the properties described in Schedule ‘A’ of the opposite parties no. 477, 2.425 decimal in plot no. 482, .71 decimal in plot no. 483 and 1.57 decimal in plot no. 490 being 1/14th share in the properties comprised in Schedule ‘A’ to the plaint. The plaintiff/petitioner admits the rest of the shares in respect of the properties described in Schedule ‘A’ of the opposite parties no. 1 to 9 who acquired the same on the strength of the deed of sale dated April 1, 2010 executed by the said two sons and Taslima Sardar. The identical relief in the form of partition upon declaration of the deed of settlement to be illegal, invalid and void is sought for therein. The defence against the injunction application is verbatim of the defence taken in Title Suit No. 118 of 2011 and, therefore, this Court do not wish to record the same to avoid the repetition. C.O. No. 584 of 2014 This revisional application is directed against an order dated February 15, 2014 passed by the learned Additional District Judge, 13th Court, Alipore in Miscellaneous Case No. 396 of 2013 reversing the order no. 60 dated July 9, 2013 passed by the learned Civil Judge (Senior Division), Baruipur in Title Suit No. 127 of 2011. To avoid prolixity of the repetition of the facts, the subject plots involved in the said suits are plot no. 466, 472 and 479 of Mouza- Kumrakhali which are described in Schedule ‘A’ to the said plaint. The plaintiff/petitioner claimed to have acquired 0.285 decimal out of plot no. 466, 0.425 decimal in plot no. 472 and 0.425 decimal in plot no. 479 constituting undivided 1/14th share in the entire ‘A’ Schedule property. The rest share is admitted to have been acquired by the opposite parties no. 1 to 4 on the strength of deed of sale dated May 14, 2010 executed by the aforesaid two sons. By different orders based on identical consideration, the application for temporary injunction came to be disposed of by the Trial Court directing the subsequent purchasers as well as the plaintiff/petitioner to maintain status quo in respect of the nature and character and possession of the suit property involved in the respective suits. The Appellate Court reversed the said order as it did not find the existence of a prima facie case. The Appellate Court reversed the said order as it did not find the existence of a prima facie case. The Appellate Court appears to have swayed by the fact that a Muslim lady does not normally gift the property to a Hindu male person. The other consideration revealed from the impugned order passed by the Appellate Court is that the subsequent purchasers having invested huge amount of money after acquiring a large tract of land in proportion to the land acquired by the plaintiff/ petitioner, which disentitles him to have the injunction. Assailing an order of the Appellate Court, Mr. Roy Chowdhury, the Senior Advocate submits that the facts considered by the Appellate Court is de hors to the respective stands of the parties. He audaciously submits that the Court cannot make out a case which is neither pleaded nor argued before it. He submits that both the Courts have found that the plaintiff/petitioner has made out an arguable case which is required to be adjudicated on trial and the Appellate Court erred in vacating the order of injunction in contradiction to the settled principles of law. In a suit for partition, the Court must protect the interest of the parties and should not allow the co-owner to make construction as by the time, the suit is decreed the possession would become irreversible, and placed reliance upon a judgment of the division bench rendered in case of Israil & other vs. Samser Rahaman & other; reported in 18 CWN 176, Gangubai Bablya Chaudhary & other vs. Sitaram Bhalchandra Sukhtankar & others, reported in AIR 1983 SC 742 . Mr. Roy Chowdhury further submits that if the subsequent purchasers are allowed to make construction on a joint property and change the nature and character thereof, the plaintiff would be deprived to use the land as per his own convenience and choice by the time, the suit is decreed and placed reliance upon a judgment of the Supreme Court in case of Makers Development Services Pvt. Ltd. vs. M. Visvesvaraya Industrial Research & Development Centre reported in (2012) 1 SCC 735 . Mr. Mr. Roy Chowdhury vehemently submits that when both the Courts have held the existence of a prima facie right in respect of the property in suit, it warrants the issuance of the order of temporary injunction and protection of the rights of the parties until the disposal of the suit as held in Dalpat Kumar and Another vs. Prahlad Singh and Others; reported in AIR 1993 SC 276 . Mr. Roy Chowdhury, therefore, contends that the purported deed of settlement executed by the admitted owner is invalid, illegal and bad to the extent of rest of the shares except 1/3rd share under the Principles of Mohammedan Law and the said two sons cannot acquire absolute right in respect of the entire ‘A’ Schedule property. He proceeds further to submit that the donor namely; Jarina Bibi admitted, in the written statement, the execution and registration of the deed of gift in favour of the plaintiff/petitioner and further stated that the averments made in the plaint to be true and correct set of facts, which necessarily implies that she also asserts right as an undivided co-owner in respect of the properties involved in the suit. By placing several paragraphs of the affidavit-in-opposition, Mr. Roy Chowdhury submits that the contesting opposite parties have virtually accepted the purport of the deed of settlement to be a Will and, therefore, divestation of right, title and interest on execution and registration of the deed of gift in favour of the plaintiff/petitioner by Jarina Bibi, is legal and valid and the plaintiff/petitioner as co-owner can very well maintain the suit for partition. Mr. Saktinath Mukherjee, the learned Advocate appearing for the subsequent purchasers/opposite parties in C.O. 582 of 2014 refutes the contention of the petitioner in submitting that apart from the existence of prima facie case, balance of convenience and inconvenience, irreparable loss and injury, the Court should also took into the conduct of the parties. He further submits that the deed of settlement executed in the Year 1983 was later on confirmed by the daughters including Jarina Bibi which validates the bequeath made in the Will and silence for more than 24 years, certainly disentitles the plaintiff/petitioner to have the order of temporary injunction in his favour. He further submits that the deed of settlement executed in the Year 1983 was later on confirmed by the daughters including Jarina Bibi which validates the bequeath made in the Will and silence for more than 24 years, certainly disentitles the plaintiff/petitioner to have the order of temporary injunction in his favour. In support of his aforesaid contentions that the conduct of the parties placed an important role in considering an application for temporary injunction, he placed reliance upon a judgment of the Supreme Court in case of Mandali Ranganna & others vs. T. Ramachandra & others reported in (2008) 11 SCC 1 . By placing reliance upon Paragraph 22 of the above cited judgment, Mr. Mukherjee, the learned Senior Advocate further submits that his clients have invested a huge amount for purchase of the substantial area of the property in proportion to the claim made by the plaintiff/petitioner, for which, the endeavour is to be made to protect the interest of his clients. Mr. Mukherjee vehemently submits that the Jarina Bibi did not challenge the deed of settlement rather consented the same by executing a declaration, the petitioner being the donee under the deed of gift cannot challenge the same after a gap of nearly 24 years. By saying so, it is submitted that the injunction being a discretionary and equitable relief disentitles the persons who has not approached the Court promptly. Mr. Mukherjee succinctly argues that the name of two sons have been recorded in the record of rights and they are treated as a raiyat in respect of an agricultural land. According to him, the agricultural land was kept outside the purview of the Muslim Personal Law (Shariat) Application Act, 1937, by virtue whereof the Personal Law is enforceable. The said Act excludes the agricultural land from its purview and after the commencement of the West Bengal Land Reforms Act, 1955, any other right or custom or usage or contract or express or imply or agreement or decree or order or decision of a Court or Tribunal or other authority, which are in consistence therewith, shall be governed by the said Act. He thus submits that Section 4 Sub-Section 1 of the West Bengal Land Reforms Act, 1955 recognizes the right of a raiyat to be heritable and transferable. He thus submits that Section 4 Sub-Section 1 of the West Bengal Land Reforms Act, 1955 recognizes the right of a raiyat to be heritable and transferable. Therefore, the transfer of property by the aforesaid two sons who held the agricultural land as a raiyat shall not be defeated on the plea of the Principle of Mohammedan Law. Mr. Mukherjee further submits in a suit for partition that a transferee purchasing a specific portion of the property shall be allotted the said portion and can be allotted any other portion, if the equity demands. By contending so, Mr. Mukherjee put a suggestion that his client would leave the specific space apropos to undivided 1/14th share claimed by the plaintiff/petitioner appertaining to the main road which may be allotted, in the event, the plaintiff/petitioner succeed in a partition suit. He thus concludes in saying that the application for temporary injunction is to be decided on well-settled legal parameters namely existence of prima facie case, irreparable loss and injury and balance of convenience and inconvenience and placed reliance upon a judgment of the Apex Court in case of Best Sellers Retail Pvt. Ltd. vs. Aditya Birla Nuvo Ltd. and others reported in (2012) 6 SCC 792 . Mr. Anindya Kumar Mitra, the learned Senior Advocate appearing for the subsequent purchaser/opposite party in C.O. No. 584 of 2014 adopts the submission of Mr. Mukherjee and additionally submits that the right of the plaintiff/petitioner has not been perfected and, therefore, is not enforceable in law. According to him, the deed of gift in respect of an undivided share in the property though permissible but becomes irregular if not void unless the donor delivers possession of the share. By referring to Section 158 of the Mohammedan Law which relates to Mushaa (a gift of an undivided share in property), Mr. Mitra would contend that the deed of gift can be perfected only by a subsequent partition and delivery of possession of the share dealt with the gift deed. He further relies upon Section 160 of the Mohammedan Law to submit that the gift of Mushaa remains irregular and not void unless perfected and rendered by subsequent partition and delivery of the share by the donor. It is further submitted that the Jarina has not said that she never executed the declaration confirming the execution of the deed. He further relies upon Section 160 of the Mohammedan Law to submit that the gift of Mushaa remains irregular and not void unless perfected and rendered by subsequent partition and delivery of the share by the donor. It is further submitted that the Jarina has not said that she never executed the declaration confirming the execution of the deed. It is impermissible on the part of the donee of Jarina to come forward and say that the deed of settlement is bad. By placing reliance upon a judgment rendered in case of Abdul Rahim & others vs. Sk Abdul Zabar & others reported in (2009) 6 SCC 160 , Mr. Mitra submits that the gift under the Mohammedan Law is not complete in absence of offer and acceptance and followed by the delivery of the constructive possession of the property to the donee. Mr. Mitra would contend that there is no explanation offered either in the plaint or in the application for temporary injunction about the delay of 24 years. He further submits that the injunction being the equitable and discretionary relief would be refused on the ground of delay unless sufficiently and cogently explained. In support of the aforesaid submissions, reliance is placed upon a judgment of the Apex Court in case of U.P. Jal Nigam and another vs. Jaswant Singh & another reported in (2006) 11 SCC 464 . Last but not the least, Mr. Mitra, the learned Senior Advocate strikes at the entertainability of the revisional application under Article 227 of the Constitution of India in contending that it is not meant to be exercised as an appellate jurisdiction. According to Mr. Mitra, if the judgment of the Appellate Court is based on sound principle of law, there is a reasonability in the findings and probability of the decision. The power of superintendence should be refused to be exercised even the High Court finds that another view is possible. Mr. Jayanta Kumar Mitra, the learned Advocate appearing for the subsequent purchaser/opposite party restricted his submissions on the rights of the plaintiff/petitioner based upon the deed of gift of undivided share by Jarina. According to him, the doctrine of Mushaa implies a prohibition against heba of a joint undivided property and is likely to create confusion in his enjoyment by all the co-sharers unless the same are divided off. According to him, the doctrine of Mushaa implies a prohibition against heba of a joint undivided property and is likely to create confusion in his enjoyment by all the co-sharers unless the same are divided off. It is further submitted that Jarina did not have the transferable right after the execution of the declaration in favour of the transfer made by his brothers who acquired the absolute interest on the strength of deed of settlement. It is lastly submitted that the right which is not immediately enforceable and yet to be perfected, the Court should not pass an order of injunction against the rightful owners. The plaintiff/petitioner seeks for declaration that the purported deed of settlement executed by the admitted owner is illegal, invalid and void document and further seeks for partition of his undivided 1/14 share in the suit property described in Schedule ‘A’ to the plaint. The point of dispute hinges primarily on the validity and/or authenticity of the purported deed of settlement. According to the plaintiff/petitioner, the deed of settlement is nothing but a Will bequeathing the property in favour of his two sons by the admitted owner which is impermissible under the Principle of Mohammedan Law except to the extent of 1/3 share. The respective parties have no quarrel on the above settled proposition of law provided the purported deed of settlement is construed as Will. Though the appearing defendants before this Court have joined an issue as to the construction of the said purported deed of settlement but the stands taken in the proceeding would infer a tacit concurrence. It is stated that the Will bequeathing the property in excess of 1/3rd share can be ratified and/or validated by declaration of the heirs. In fact, a purported declaration executed through power of attorney of the Jarina is relied on. In support of the validity of the said purported deed of settlement to be construed as Will, the matter can be viewed from another angle on the above point. The admitted owner namely Ganda Sardar died living behind him surviving his widow Khotejan Bewa and one Son, Golap Rabbani Sardar. The said widow who inherited two annas share as per the Mohammedan Law executed and registered a deed of sale dated July 26, 1948 conveying and/or transferring her aforesaid share in the name of Abul Basar Sardar who was the then minor. The said widow who inherited two annas share as per the Mohammedan Law executed and registered a deed of sale dated July 26, 1948 conveying and/or transferring her aforesaid share in the name of Abul Basar Sardar who was the then minor. The said Golap Rabbani alleged to have executed a purported deed of settlement on 3rd November, 1983. The said Golap Rabbani died on 15th August, 1986 living him surviving two sons and three daughters. The purported deed of settlement, if construed as other than the Will, the right, title and interest of the executant thereof stands divested simultaneously with the execution. It is well-settled that the Will takes effect after the death of the testator/testatrix. The warring defendants at one breadth say that the purported deed of settlement is not a Will but on the other moment, they relied upon a purported deed of declaration allegedly executed by the daughters ratifying and/or confirming the bequeath made in the said settlement. For the time being, if it is taken that both the contesting parties are ad idem on the issue that the purported deed of settlement is, in fact, a Will which is subsequently ratified and perfected by virtue of the declaration made by the heirs of the said executant, there is no occasion to join one of the daughter as party to the deed by which the said defendant nos. 1 to 6 have purchased the suit property. It came out from the submission made at the bar that such declaration was executed through a power of attorney and, therefore, binds the daughters. It would reveal from the affidavit annexed to this revisional application which appears to have been executed by Hasina Khatun and Jarina Khatun, the daughters of Late Golap Rabbani Sardar and affirmed before the First Class Judicial Magistrate, Alipore, that they have not only objected to the erroneous recording in the L.R. record of rights but have also asserted the claim in the properties which are the subject matter of the suit. The Jarina Bibi who is arrayed as defendant no. 8 in the suit categorically admitted the statements and the claims made in the plaint of the respective suits and further prayed for the partition and separation of her share in respect of the suit properties. The Jarina Bibi who is arrayed as defendant no. 8 in the suit categorically admitted the statements and the claims made in the plaint of the respective suits and further prayed for the partition and separation of her share in respect of the suit properties. Though at the later stage, the said Jarina Bibi filed an application for amendment taking a contrary stand but such application for amendment has not been allowed and, in fact, rejected by the Trial Court. This Court, therefore, prima facie finds that an arguable case has been made out by the plaintiff for trial so far as it relates to the interpretation of the purported deed of settlement is concerned. The Apex Court in case of Mandali Ranganna vs. T. Ramachandra reported in (2008) 11 SCC 1 , held that apart from the three basic principles governing the consideration of injunction viz. (i) existence of prima facie case, (ii) balance of convenience and inconvenience and (iii) irreparable loss and injury, the Court should also take into consideration the conduct of the parties as the grant of injunction is discretionary and equitable relief. It would be relevant to quote Paragraph 21 & 22 of the said report which are as follows: “21. 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. 22. 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 or 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.” The conduct of the party is a material factor in equitable jurisdiction. 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.” The conduct of the party is a material factor in equitable jurisdiction. The lethargic and dormant litigant who did not pursue the remedy to protect the right which has been infringed much earlier may ordinarily disentitle him to have the injunction granted in his favour. The said rule is not rigid and inflexible and is not immune from any exception. The title to the immovable property is not eroded and divested in absence of any assertive action except by virtue of well-recognized modes of transfer. The judgment rendered in case of U.P. Jal Nigam & another vs. Jaswant Singh & another reported in (2006) 11 SCC 464 does not come into aid of the contesting opposite parties on the proposition that a person who is not vigilant of his rights or there is a change of position on the part of the party allegedly violating the right, the Court should not grant relief in exercise of the power under Article 226 of the Constitution of India, as the said case was not on the title in respect of the immovable properties. In the said report, a writ petition was filed by some of the employees of the U.P. Jal Nigam challenging the act of their retirement at the age of 58 years when the State Government Employees were allowed to continue up to the age of 60 years. Some other employees promptly challenged the aforesaid action on the ground of discrimination and in one of such case, it was held that the regulation governing the State Government Employee shall be applicable to the Employees of the U.P. Jal Nigam as well. After the aforesaid order is passed in the said writ petition, the writ petition came to be filed by several employees which ultimately came up before the Supreme Court and in the backdrop of the aforesaid perspective, it is held that the person who sat over their rights for several years and did not challenge the impugned action promptly are not entitled to any relief in these words: “13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” It is specifically alleged in the plaint as well as the injunction application that the contesting defendants are accumulating the huge building materials to make constructions of the boundary wall encircling the best portion of the suit premises by qualifying the land in excess of their share. The plaintiff/opposite party apprehended the injury to his right and dispossession by construction of the boundary wall. The balance of convenience and inconvenience lies in protecting the plaintiff/opposite party from such dispossession. It is held in case of Dalpat Kumar and Another vs. Prahlad Singh & other reported in AIR 1993 SC 276 that the expression prima facie case, balance of convenience and irreparable loss and injury are the expressions of width and elasticity to mitigate the situation to be exercised with sound judicial discretion. It is held in case of Dalpat Kumar and Another vs. Prahlad Singh & other reported in AIR 1993 SC 276 that the expression prima facie case, balance of convenience and irreparable loss and injury are the expressions of width and elasticity to mitigate the situation to be exercised with sound judicial discretion. In case of Maharwal Khewaji Trust (Regd), Faridkot vs. Baldev Dass reported in (2004) 8 SCC 488 , the Apex Court held that the Court shall not permit any party to alter the nature and character of the immovable property in these words: “10. Be that as it may, Mr Sachar is right in contending that unless and until a case of irreparable loss or damage is made out by a 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. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done. In the event of the appellant’s claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.” An argument was sought to be advanced before this Court that the opposite parties have invested a huge sum to purchase the property and, therefore, should not be deprived to make a best use of it. The Apex Court in case of Gangubai Bablya Chaudhary vs. Sitaram Bhalchandra Sukhtankar reported in AIR 1983 SC 742 in unequivocal terms held that if the construction is allowed to be made by the time, the suit is decreed, the situation may become irreversible and, therefore, the Court should restrain the parties from raising any construction on the disputed land in following words: “6. When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the FSI for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the FSI for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9000 sq metres of land on which they can put up construction.” Before proceeding to arrive at the conclusion, the point taken by Mr. Anindya Kumar Mitra and Mr. Jayanta Kumar Mitter, the learned Senior Advocates that the Principle of Mohammedan Law does not recognize the gift of the undivided share in the property unless the said share is divided off and possession is delivered to be a valid gift, it would remain irregular but not void as the same is capable of being perfected and rendered valid by subsequent partition and delivery of the share to the donee by the donar, requires consideration. Sir Dinshaw Fardunji, in Principle of Mohammedan Law, 20th Edition, defines Musha to be an undivided share in the property, be it movable or immovable. The author advocates that the Musha Rule should not apply with all its rigidity and there are exceptions. One of the exceptions indicated therein that where the donar has gifted her entire interest to the donee which is a share in joint property, in such case, the donee has a right to sue for partition. Syed Ameer Ali, J; who authored book Mohammedan Law, Vol. I, commented that there are divergence of the opinion in the progressive community than at the initial stage relating to the validity of the gift of Musha and held that the same is not void and the possession can remedy the defect. The principles which could be culled out therefrom is that the gift of Musha is not void but at best is irregular, capable of being remedied and perfected by possession. One of the author, Mullah, admits the right of the donee to ask for partition though there is some uncertainty whether a donee of the part of the share of a Musha or a donee of the entire share of Musha is entitled to seek for partition. One of the author, Mullah, admits the right of the donee to ask for partition though there is some uncertainty whether a donee of the part of the share of a Musha or a donee of the entire share of Musha is entitled to seek for partition. The Jarina claims an undivided share in the property and she is also arrayed as defendant no. 8 in the suit. The written statement filed by her shows that she also claimed the declaration of her share as claimed by the plaintiff/opposite party and further claimed partition. In a partition suit, there is no distinction between the plaintiffs and the defendants as each parties are entitled to the declaration of his share and separate enjoyment thereof. Since both the plaintiff/opposite party and the defendant no.8 claims the partition of the said undivided share, the restriction indicated by the scholar of the Mohammedan Law does not come in the way. Mr. Anindya Kumar Mitra, the learned Senior Advocate invites the Court to take the above point from different angle. According to him, the consent required to validate the bequest of the Mohammedan Testator can be effectuated by conduct of the parties. He strongly submits that the silence for several years may be presumed as consent for such bequest. The entire submission is based on a judgment of this Court in case of Sk. Anarali Tarafdar vs. Sk. Omar Ali reported in 55 CWN 33. It is held therein that the bequest in excess of legal third can be made effectual on the consent of the heirs which can be done at the time of the death or after the death of the testator. Since there is no prescribed mode for such consent, it may be presumed from the conduct of the parties or from their passing acquiescence. Had it been a case that there is no document signifying the consent to the excess bequeath, the ratio laid down in above noted report would have come in aid of the opposite parties. It is specific case of the said opposite party that subsequently a declaration was executed through a constituted attorney which is seriously doubted by the plaintiff/petitioner and the genuinity of the said document is yet to be proved. It is specific case of the said opposite party that subsequently a declaration was executed through a constituted attorney which is seriously doubted by the plaintiff/petitioner and the genuinity of the said document is yet to be proved. Furthermore, one of the daughter is made as party to a deed who was not given any right in respect of the immovable property in the purported deed of settlement which prima facie implies that there was no acquiescence of the rights. Section 3 of the West Bengal Land Reforms Act, 1955 overrides any other law in force or any custom or usage or contract, express or implied, or agreement or decree or order or decision or award of the Court, Tribunal or other authority in the event of inconsistency. By virtue of such overriding provision, any custom which partakes either the statutory character or not, shall not have any primacy over the West Bengal Land Reforms Act, 1955 provided the same is inconsistent therewith. Section 4 (1) of the West Bengal Land Reforms Act, 1955 recognizes the raiyat to be the owner of the plot of land which shall be heritable and transferable. None of the provisions contained under the aforesaid Act deal with the devolution of interest in case of intestacy which may be said to be repugnant to the custom or usage or the law governing the field. Section 2 (6) of the Act defines the “co-sharer of a raiyat in a plot of land” to mean a person other than the raiyat who has an undemarcated interest in the plot of land along with the raiyat. Therefore, the heritability in respect of a plot of land is to be governed by the law of succession applicable to the admitted owner of the plot of land and there is no repugnancy and/or inconsistency with any of the provisions of the West Bengal Land Reforms Act, 1955. The Appellate Court has held that it is impermissible in the common society that a Mohammedan lady would gift her interest in the immovable property to a Hindu man. The Appellate Court has proceeded so far to apply the immunity given to a pardanasin lady. The aforesaid observation is not recognized in the statute book neither the Principle of Mohammedan Law nor the Customary Law or even Constitution put any fetter on the above aspect. The Appellate Court has proceeded so far to apply the immunity given to a pardanasin lady. The aforesaid observation is not recognized in the statute book neither the Principle of Mohammedan Law nor the Customary Law or even Constitution put any fetter on the above aspect. Our forefathers of the Constitution obliterated the treatment and distinction on the ground of religion. Such mindset as portrayed in the order would percolate a wrong signal in the society and would disturb the harmony amongst the religious society. My efforts have failed to find out any such plea and/or defence taken by any of the parties. The Appellate Court is not supposed to make out a new case which is not made out by any party. The Appellate Court should confine his consideration on the materials on record and the submissions made at the bar, and should not embark his voyage to such destination which is never desired by either of the parties. This Court, therefore, finds that the order impugned suffers from illegality and infirmity and cannot be sustained. The impugned order is thus set aside. The revisional application succeeds. The order passed by the Trial Court survives. The parties are directed to maintain status quo with regard to nature and character and possession of the suit property as on today till the disposal of the suit. The revisional application is disposed of. However, there shall be no order as to costs.