ESCON CONSULTANT PVT LTD Vs. HARUN AL RASHID

JUDGEMENT

(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:-

(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.