Escon Consultant Pvt. Ltd. Vs. Harun-al-rashid and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/877756
SubjectLimitation
CourtKolkata High Court
Decided OnSep-04-2009
Case NumberC.O. 1487 of 2009
JudgeJyotirmay Bhattacharya, J.
ActsLimitation Act, 1963 - Schedule - Articles 44, 64 and 65; ;Mohammadan Law - Sections 359 and 364; ;Constitution of India - Article 227
AppellantEscon Consultant Pvt. Ltd.
RespondentHarun-al-rashid and ors.
Appellant AdvocateSaktinath Mukherjee, ;Ashok Banerjee, ;Siddartha Lahiri, ;Pradyut Kr. Das, ;P. Edulji and ;Uttam Kr. Mondal, Advs.
Respondent AdvocateS.P. Roy Chowdhury, ;Chaitali Chatterjee and ;Paritosh Sinha, Advs. for Opposite Party Nos. 1 to 4
DispositionPetition dismissed
Cases ReferredMeethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty and Ors.
Excerpt:
- jyotirmay bhattacharya, j.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. 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.2. 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 & 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 & 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 & 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 & 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 petitioner's 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 petitioner's 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.4. 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.5. 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.6. 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.7. 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.8. on perusal of the impugned order, this court finds that instead of making an effort to find out the legality of transfer of the minors' interest by the de-facto guardian on the basis of the pleadings of the parties on record, the learned appeal court placed much reliance upon the certificate of searching on the title of the petitioner's vendor, since such certificate was issued by a reputed solicitor's firm. the learned appeal court also took exception to the plaintiffs' pleading as they made no effort to challenge the sale deed dated 18th november, 1974 executed by their de-facto guardian in favour of the petitioner's vendor 35 years ago, in their plaint. the learned appeal court found that the petitioner is at least in possession of the suit property for about 13 years i.e. from the date of their purchase of the suit property from their vendors in 1996. thus, the learned appeal court held that such possession of the petitioner in the suit property cannot be disturbed as the petitioner cannot be ousted from possession without due process of law. under such circumstances, the learned appeal court disposed of the said appeal with slight modification of the order of the learned trial judge by adding the expression 'respective' before possession in the operative part of the order. the learned appeal court, thus, directed the parties to maintain status quo of their respective possession, enjoyment, nature and character of the suit property as on 27th march, 2006 till the disposal of the suit.9. the propriety of the said order of the learned appeal court is under challenge in this application under article 227 of the constitution of india at the instance of the defendant no. 3/petitioner herein.10. let me now consider the merit of the said application in the facts of the instant case.11. mr. mukherjee, learned senior counsel appearing for the petitioner submitted that when the learned appeal court found that the petitioner is in possession of the suit property and further when it was held that the petitioner being the owner of the suit property has the right to raise construction therein, the learned appeal court ought not to have passed the impugned order directing the parties to maintain their respective possession, enjoyment, nature and character of the suit property as on 27th march, 2006 till the disposal of the suit.12. by referring to the pleadings made out by the plaintiffs in their plaint as well as in their application for temporary injunction, mr. mukherjee further contended that from their own pleading it appears that the plaintiffs were minors at the time of the sale of their interest by their de-facto guardian in favour of the petitioner's vendor on 18th november, 1974. though mr. mukherjee did not dispute the legal position with regard to the effect of sale of the minors' property by the de-facto guardian under the mohammadan law being void one, but he submitted that if the minors do not come forward to recover the possession of the suit property from the purchaser within the prescribed period of limitation, then not only their right to recover possession from the purchaser who are in possession of the suit property on the basis of a void transaction, will be lost forever but also their claim for title will be lost by way of acquiescence after expiry of the period of limitation from the date of sale of the minors' property by the de-facto guardian and as such, the plaintiffs cannot claim any right, title and interest in the suit property after the expiry of the period of limitation which according to mr. mukherjee long expired as per the admission made by the plaintiffs in their own pleadings with regard to their respective ages.13. mr. mukherjee contended that the period of limitation for a suit for setting aside a transfer of the minors' property by an unauthorized person acting as a guardian of such minor, is 12 years from the date of transfer or 3 years of the date when the minor attains majority whichever is longer. in support of such submission mr. mukherjee has relied upon a decision of this hon'ble court in the case of abdul hai v. anwar ali layak reported in 1948 ilr 170 wherein it was held in an identical situation that limitation under such circumstances will not be governed by article 44 of the limitation act as the limitation in such case would be 12 years from the date of transfer or 3 years from the date of attainment of the majority whichever is longer.14. mr. mukherjee also relied upon another decision of mysore high court in the case of kishta bai and ors. v. marthand rao and ors. reported in air 1965 mys 278 to support his aforesaid submission on the point of limitation.15. by referring to articles 64 and 65 of the limitation act of 1963 mr. mukherjee submitted that since the period of limitation for recovery of possession of the suit property from the petitioner by the plaintiffs/opposite parry nos. 1 to 4 has also expired under the said provision, the plaintiffs cannot claim their right, title and interest and/or possession in the suit property and as such, they are not entitled to any interim order for restricting the petitioner's right of enjoyment of the suit property and/or from raising construction thereon.16. mr. roy chowdhury, learned senior counsel appearing for the opposite parties refuted such submission of mr. mukherjee. he was very candid in his submission with regard to the effect of the sale of the minors' interest by the de-facto guardian under by the mohammadan law. by referring to the provisions contained in sections 359 to 364 of the mohammadan law mr. roy chowdhury contended that if those provisions are considered carefully then no court can come to the conclusion that the right, title and interest of the plaintiffs in the suit property was validly transferred by the de-facto guardian in favour of the vendors of the petitioner by the registered deed of sale dated 18th november, 1974. mr. roy chowdhury further contended that, in fact, the said sale is a void sale so far as the plaintiffs' interest in the suit property is concerned. according to mr. roy chowdhury, the plaintiffs' interest in the suit property remains unaffected even by the said transaction and as such, the plaintiffs are still the owners of the suit property to extent of their interest which they inherited from their predecessors-in-interest viz. abdul rahim.17. mr. roy chowdhury further contended that if the said sale is a void transaction then the minors whose property was transferred illegally, are not required to file any suit for avoiding the said transaction as it is a void one. mr. roy chowdhury further contended that the limitation for filing a suit for recovery of possession of this nature can neither be counted from the date of sale nor can it be counted from the date of attainment of majority by the minors as contended by mr. mukherjee. according to mr. roy chowdhury starting point of limitation in such a case is not the date of alienation but the date on which the aggrieved party comes to know of the alienation or the date when the right to the property in dispute is invaded by the purchaser. mr. roy chowdhury contended that the plaintiffs were never aware about those transactions which the plaintiffs came to know for the first time from the written statement filed by the defendant nos. 1 and 2 in the suit and/or the objection filed by the defendant no. 3 against the plaintiffs' application for temporary injunction wherein such sale was disclosed for the first time by the said defendants. thus, mr. roy chowdhury submitted that mr. mukherjee is not correct in his submission that the reliefs claimed by the plaintiffs in the suit is barred by limitation. in support of such submission mr. roy chowdhury relied upon a division bench decision in the case of kanailal das anr. v. jiban kanai das and anr. reported in air 1977 cal 179.18. mr. roy chowdhury also submitted that if the sale of the plaintiffs' interest remains unaffected then the plaintiffs will be the co-owner of the petitioner and as such, it cannot be held that the plaintiffs have no possession in the suit property as the possession of a co-owner amounts to possession of all the co-owners unless ouster is proved.19. mr. roy chowdhury further contended that if the interim order is vacated in this set of facts and the petitioner is permitted to put up construction on the entire land, then the situation which will arise due to such alteration, might become irreversible when the dispute in the suit will be ultimately decided. mr. roy chowdhury, thus, contended that under such circumstances the parties should be directed to maintain status quo in all respects in the manner as it was done by the learned courts below. in support of such submission mr. roy chowdhury relied upon a decision of the hon'ble supreme court in the case of gangubai babiya chaudhary and ors. v. sitaram bhalchandra sukhtankar and ors. reported in : air 1983 sc page 742.20. let me now consider the submission of the learned counsel of the respective parties in the facts of the instant case.21. at the very outset this court wants to make it clear that this court cannot agree with the view expressed by the learned appeal court to this effect that this is not the stage for considering the effect of the sale of the plaintiffs' interest by their de-facto guardian in favour of the vendor of the petitioner in 1974. though it is true that plaintiffs did not refer to the said transaction in his pleading and they also did not pray for any relief concerning the said transaction in the suit and/or in their application for injunction, but it is equally true that the defendant/petitioner denied the plaintiffs' claim for partition on the strength of its title in the suit property through its vendors who in their turn purchased the interest of the plaintiffs during their minority through their de-facto guardian. since the title which the defendant/petitioner asserted in its objection to the plaintiffs' application for temporary injunction depends upon the validity of transfer of the minors' interest in their property by their de-facto guardian, this court cannot agree with the findings of the learned appeal court to the effect that at this stage of hearing of the injunction application, court cannot consider the effect of the sale of the minors' interest in the suit property by their de-facto guardian. on consideration of the provision contained in section 359 read with section 364 of the mohammadan law, this court has no hesitation to hold prima facie that the sale of the plaintiffs' interest during their minority by their de-facto guardian is void and their title in the suit property did not pass in favour of their purchaser by virtue of the said transaction. accordingly, the plaintiffs' title in the suit property remains unaffected.22. now the only thing, which still remains, is to find out the provision of limitation act which is applicable to the instant suit as the counsel of the respective parties differed in their contention in this regard. mr. mukherjee contended that period of limitation in such case for recovery of possession from a person who is in possession on the strength of the void deed is 12 years from the date of transfer or 3 years from the date of attainment of majority whichever is longer. according to mr. mukherjee, if such a suit for recovery of possession is not filed within the aforesaid period of limitation, not only his claim for recovery of possession will be barred but also his right in the property will stand extinguished from the date of alienation.23. mr. roy chowdhury, on the other hand, contended that a party affected by void transaction need not file any suit for avoiding the transaction but if his right to the property is invaded, then he is required to file a suit to protect his right and in such case the starting point of limitation will be not from the date of alienation but from the date on which the aggrieved party comes to know of the alienation or from the date when his right to the property in the dispute is invaded by the purchaser.24. in fact, this rival contention of the parties can be resolved with reference to the decision of the hon'ble supreme court in the case of meethiyan sidhiqu v. muhammed kunju pareeth kutty and ors. reported in : air 1996 sc page 1003 wherein an identical question was answered by the hon'ble supreme court in an exactly identical set of facts with the only difference that in that particular case the mother of the minor sold the minor's interest as de facto guardian during the minority of her son whereas in the instant case the interest of the plaintiffs was sold during their minority by their elder brother as their de facto guardian. in the said decision it was held that:para 12: it is, therefore, clear from the above facts that unless there is a specific plea and proof that the appellant has disclaimed his right and asserted hostile title and possession to the knowledge of the respondent within the statutory period and the later acquiesced to it, he cannot succeed to have it established that he perfected his right by prescription. the high court has taken the fact that there is neither a plea nor proof in this behalf. we cannot find any infirmity in the findings. under these circumstances, the finding that the appellant has perfected his title as prescription is clearly illegal. in this case we are concerned only the validity of the sale in respect of the share of the respondent/plaintiff and not of the share of the mother.25. thus, the decision of the high court regarding maintainability of the partition suit and for recovery of possession filed by the minor heir after attainment of his majority against the purchaser, was upheld by the hon'ble supreme court in the said decision, by holding that interest of the plaintiff in the suit property was not lost either by way of sale of his interest during his minority by the de-facto guardian or by way of prescription.26. here is the case where this court finds that the petitioner all throughout claimed his title on the basis of the aforesaid transactions. petitioner never claimed any hostile title and/or exclusive possession by ousting his co-sharers namely the plaintiffs herein with the requisite animus for the statutory period. there is no such plea and/or proof in the pleadings of the defendant/petitioner. unless assertion of title by adverse possession by way of ousting the co-sharer from joint possession is pleaded and proved, court will have to presume that the plaintiffs are still in possession through their co-sharer namely the defendant no. 3/petitioner and their right either to sue for partition or to sue for recovery of possession is not barred as per article 65 of the limitation act.27. under such circumstances, this court cannot hold that the plaintiffs have failed to make out any prima facie case meaning thereby an arguable case in the said suit. further if the balance of convenience and inconvenience is considered, then the court will have no other alternative but to hold that the said test is in favour of the plaintiffs as in the event the defendant succeeds in raising construction altering the nature and character of the suit property then the situation may ultimately become irreversible at the time of final disposal of the suit.28. this court also finds that though the petitioner purchased his property in 1996 but, still then, the petitioner has neither taken any step to mutate its name as owner in the revenue record nor it has taken any further step to raise any construction therein excepting raising of boundary wall on three sides of the suit property, for all these long 13 years. of course, even the raising of boundary wall on three sides of the suit property was disputed by the plaintiffs and such dispute cannot be resolved as the pleadings of the parties are absent in this regard and both parties relied upon their respective photographs of the suit property which are contradictory to each other. this court, however, does not think it necessary to resolve the said dispute here and now as this court feels that this disputed fact has no bearing on the matter in issue for the present purpose.29. under such situation this court holds that the defendant cannot suffer any irreparable loss and injury if they are prevented from raising any construction during the pendency of the suit, as they have not taken any step for such construction for such a long time. on the contrary, the plaintiffs' sufferance will be irreparable if status quo with regard to the nature and character of the suit property is not maintained as even in the event the plaintiffs succeed in the suit, the relief claimed in the suit may not be ultimately made available to them if the defendant is permitted to raise construction in the prime portion of the suit property exceeding its share in the suit property.30. in the aforesaid set of facts this court does not find any justification to interfere with the impugned order. the parties are, thus, directed to maintain status quo with regard to the possession, enjoyment, nature and character of the suit property till the disposal of the suit.31. the revisional application, thus, stands rejected.32. urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.
Judgment:

Jyotirmay Bhattacharya, J.

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. 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.

2. 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 & 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 & 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 & 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 & 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 petitioner's 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 petitioner's 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. On perusal of the impugned order, this Court finds that instead of making an effort to find out the legality of transfer of the minors' interest by the de-facto guardian on the basis of the pleadings of the parties on record, the learned Appeal Court placed much reliance upon the certificate of searching on the title of the petitioner's vendor, since such certificate was issued by a reputed solicitor's firm. The learned Appeal Court also took exception to the plaintiffs' pleading as they made no effort to challenge the sale deed dated 18th November, 1974 executed by their de-facto guardian in favour of the petitioner's vendor 35 years ago, in their plaint. The learned Appeal Court found that the petitioner is at least in possession of the suit property for about 13 years i.e. from the date of their purchase of the suit property from their vendors in 1996. Thus, the learned Appeal Court held that such possession of the petitioner in the suit property cannot be disturbed as the petitioner cannot be ousted from possession without due process of law. Under such circumstances, the learned Appeal Court disposed of the said appeal with slight modification of the order of the learned Trial Judge by adding the expression 'respective' before possession in the operative part of the order. The learned Appeal Court, thus, directed the parties to maintain status quo of their respective possession, enjoyment, nature and character of the suit property as on 27th March, 2006 till the disposal of the suit.

9. The propriety of the said order of the learned Appeal Court is under challenge in this application under Article 227 of the Constitution of India at the instance of the defendant No. 3/petitioner herein.

10. Let me now consider the merit of the said application in the facts of the instant case.

11. Mr. Mukherjee, learned Senior Counsel appearing for the petitioner submitted that when the learned Appeal Court found that the petitioner is in possession of the suit property and further when it was held that the petitioner being the owner of the suit property has the right to raise construction therein, the learned Appeal Court ought not to have passed the impugned order directing the parties to maintain their respective possession, enjoyment, nature and character of the suit property as on 27th March, 2006 till the disposal of the suit.

12. By referring to the pleadings made out by the plaintiffs in their plaint as well as in their application for temporary injunction, Mr. Mukherjee further contended that from their own pleading it appears that the plaintiffs were minors at the time of the sale of their interest by their de-facto guardian in favour of the petitioner's vendor on 18th November, 1974. Though Mr. Mukherjee did not dispute the legal position with regard to the effect of sale of the minors' property by the de-facto guardian under the Mohammadan Law being void one, but he submitted that if the minors do not come forward to recover the possession of the suit property from the purchaser within the prescribed period of limitation, then not only their right to recover possession from the purchaser who are in possession of the suit property on the basis of a void transaction, will be lost forever but also their claim for title will be lost by way of acquiescence after expiry of the period of limitation from the date of sale of the minors' property by the de-facto guardian and as such, the plaintiffs cannot claim any right, title and interest in the suit property after the expiry of the period of limitation which according to Mr. Mukherjee long expired as per the admission made by the plaintiffs in their own pleadings with regard to their respective ages.

13. Mr. Mukherjee contended that the period of limitation for a suit for setting aside a transfer of the minors' property by an unauthorized person acting as a guardian of such minor, is 12 years from the date of transfer or 3 years of the date when the minor attains majority whichever is longer. In support of such submission Mr. Mukherjee has relied upon a decision of this Hon'ble Court in the case of Abdul Hai v. Anwar Ali Layak reported in 1948 ILR 170 wherein it was held in an identical situation that limitation under such circumstances will not be governed by Article 44 of the Limitation Act as the limitation in such case would be 12 years from the date of transfer or 3 years from the date of attainment of the majority whichever is longer.

14. Mr. Mukherjee also relied upon another decision of Mysore High Court in the case of Kishta Bai and Ors. v. Marthand Rao and Ors. reported in AIR 1965 Mys 278 to support his aforesaid submission on the point of limitation.

15. By referring to Articles 64 and 65 of the Limitation Act of 1963 Mr. Mukherjee submitted that since the period of limitation for recovery of possession of the suit property from the petitioner by the plaintiffs/opposite parry Nos. 1 to 4 has also expired under the said provision, the plaintiffs cannot claim their right, title and interest and/or possession in the suit property and as such, they are not entitled to any interim order for restricting the petitioner's right of enjoyment of the suit property and/or from raising construction thereon.

16. Mr. Roy Chowdhury, learned Senior Counsel appearing for the opposite parties refuted such submission of Mr. Mukherjee. He was very candid in his submission with regard to the effect of the sale of the minors' interest by the de-facto guardian under by the Mohammadan Law. By referring to the provisions contained in Sections 359 to 364 of the Mohammadan Law Mr. Roy Chowdhury contended that if those provisions are considered carefully then no Court can come to the conclusion that the right, title and interest of the plaintiffs in the suit property was validly transferred by the de-facto guardian in favour of the vendors of the petitioner by the registered deed of sale dated 18th November, 1974. Mr. Roy Chowdhury further contended that, in fact, the said sale is a void sale so far as the plaintiffs' interest in the suit property is concerned. According to Mr. Roy Chowdhury, the plaintiffs' interest in the suit property remains unaffected even by the said transaction and as such, the plaintiffs are still the owners of the suit property to extent of their interest which they inherited from their predecessors-in-interest viz. Abdul Rahim.

17. Mr. Roy Chowdhury further contended that if the said sale is a void transaction then the minors whose property was transferred illegally, are not required to file any suit for avoiding the said transaction as it is a void one. Mr. Roy Chowdhury further contended that the limitation for filing a suit for recovery of possession of this nature can neither be counted from the date of sale nor can it be counted from the date of attainment of majority by the minors as contended by Mr. Mukherjee. According to Mr. Roy Chowdhury starting point of limitation in such a case is not the date of alienation but the date on which the aggrieved party comes to know of the alienation or the date when the right to the property in dispute is invaded by the purchaser. Mr. Roy Chowdhury contended that the plaintiffs were never aware about those transactions which the plaintiffs came to know for the first time from the written statement filed by the defendant Nos. 1 and 2 in the suit and/or the objection filed by the defendant No. 3 against the plaintiffs' application for temporary injunction wherein such sale was disclosed for the first time by the said defendants. Thus, Mr. Roy Chowdhury submitted that Mr. Mukherjee is not correct in his submission that the reliefs claimed by the plaintiffs in the suit is barred by limitation. In support of such submission Mr. Roy Chowdhury relied upon a Division Bench decision in the case of Kanailal Das Anr. v. Jiban Kanai Das and Anr. reported in AIR 1977 Cal 179.

18. Mr. Roy Chowdhury also submitted that if the sale of the plaintiffs' interest remains unaffected then the plaintiffs will be the co-owner of the petitioner and as such, it cannot be held that the plaintiffs have no possession in the suit property as the possession of a co-owner amounts to possession of all the co-owners unless ouster is proved.

19. Mr. Roy Chowdhury further contended that if the interim order is vacated in this set of facts and the petitioner is permitted to put up construction on the entire land, then the situation which will arise due to such alteration, might become irreversible when the dispute in the suit will be ultimately decided. Mr. Roy Chowdhury, thus, contended that under such circumstances the parties should be directed to maintain status quo in all respects in the manner as it was done by the learned Courts below. In support of such submission Mr. Roy Chowdhury relied upon a decision of the Hon'ble Supreme Court in the case of Gangubai Babiya Chaudhary and Ors. v. Sitaram Bhalchandra Sukhtankar and Ors. reported in : AIR 1983 SC page 742.

20. Let me now consider the submission of the learned Counsel of the respective parties in the facts of the instant case.

21. At the very outset this Court wants to make it clear that this Court cannot agree with the view expressed by the learned Appeal Court to this effect that this is not the stage for considering the effect of the sale of the plaintiffs' interest by their de-facto guardian in favour of the vendor of the petitioner in 1974. Though it is true that plaintiffs did not refer to the said transaction in his pleading and they also did not pray for any relief concerning the said transaction in the suit and/or in their application for injunction, but it is equally true that the defendant/petitioner denied the plaintiffs' claim for partition on the strength of its title in the suit property through its vendors who in their turn purchased the interest of the plaintiffs during their minority through their de-facto guardian. Since the title which the defendant/petitioner asserted in its objection to the plaintiffs' application for temporary injunction depends upon the validity of transfer of the minors' interest in their property by their de-facto guardian, this Court cannot agree with the findings of the learned Appeal Court to the effect that at this stage of hearing of the injunction application, Court cannot consider the effect of the sale of the minors' interest in the suit property by their de-facto guardian. On consideration of the provision contained in Section 359 read with Section 364 of the Mohammadan Law, this Court has no hesitation to hold prima facie that the sale of the plaintiffs' interest during their minority by their de-facto guardian is void and their title in the suit property did not pass in favour of their purchaser by virtue of the said transaction. Accordingly, the plaintiffs' title in the suit property remains unaffected.

22. Now the only thing, which still remains, is to find out the provision of Limitation Act which is applicable to the instant suit as the Counsel of the respective parties differed in their contention in this regard. Mr. Mukherjee contended that period of limitation in such case for recovery of possession from a person who is in possession on the strength of the void deed is 12 years from the date of transfer or 3 years from the date of attainment of majority whichever is longer. According to Mr. Mukherjee, if such a suit for recovery of possession is not filed within the aforesaid period of limitation, not only his claim for recovery of possession will be barred but also his right in the property will stand extinguished from the date of alienation.

23. Mr. Roy Chowdhury, on the other hand, contended that a party affected by void transaction need not file any suit for avoiding the transaction but if his right to the property is invaded, then he is required to file a suit to protect his right and in such case the starting point of limitation will be not from the date of alienation but from the date on which the aggrieved party comes to know of the alienation or from the date when his right to the property in the dispute is invaded by the purchaser.

24. In fact, this rival contention of the parties can be resolved with reference to the decision of the Hon'ble Supreme Court in the case of Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty and Ors. reported in : AIR 1996 SC page 1003 wherein an identical question was answered by the Hon'ble Supreme Court in an exactly identical set of facts with the only difference that in that particular case the mother of the minor sold the minor's interest as de facto guardian during the minority of her son whereas in the instant case the interest of the plaintiffs was sold during their minority by their elder brother as their de facto guardian. In the said decision it was held that:

Para 12: It is, therefore, clear from the above facts that unless there is a specific plea and proof that the appellant has disclaimed his right and asserted hostile title and possession to the knowledge of the respondent within the statutory period and the later acquiesced to it, he cannot succeed to have it established that he perfected his right by prescription. The high Court has taken the fact that there is neither a plea nor proof in this behalf. We cannot find any infirmity in the findings. Under these circumstances, the finding that the appellant has perfected his title as prescription is clearly illegal. In this case we are concerned only the validity of the sale in respect of the share of the respondent/plaintiff and not of the share of the mother.

25. Thus, the decision of the High Court regarding maintainability of the partition suit and for recovery of possession filed by the minor heir after attainment of his majority against the purchaser, was upheld by the Hon'ble Supreme Court in the said decision, by holding that interest of the plaintiff in the suit property was not lost either by way of sale of his interest during his minority by the de-facto guardian or by way of prescription.

26. Here is the case where this Court finds that the petitioner all throughout claimed his title on the basis of the aforesaid transactions. Petitioner never claimed any hostile title and/or exclusive possession by ousting his co-sharers namely the plaintiffs herein with the requisite animus for the statutory period. There is no such plea and/or proof in the pleadings of the defendant/petitioner. Unless assertion of title by adverse possession by way of ousting the co-sharer from joint possession is pleaded and proved, Court will have to presume that the plaintiffs are still in possession through their co-sharer namely the defendant No. 3/petitioner and their right either to sue for partition or to sue for recovery of possession is not barred as per Article 65 of the Limitation Act.

27. Under such circumstances, this Court cannot hold that the plaintiffs have failed to make out any prima facie case meaning thereby an arguable case in the said suit. Further if the balance of convenience and inconvenience is considered, then the Court will have no other alternative but to hold that the said test is in favour of the plaintiffs as in the event the defendant succeeds in raising construction altering the nature and character of the suit property then the situation may ultimately become irreversible at the time of final disposal of the suit.

28. This Court also finds that though the petitioner purchased his property in 1996 but, still then, the petitioner has neither taken any step to mutate its name as owner in the revenue record nor it has taken any further step to raise any construction therein excepting raising of boundary wall on three sides of the suit property, for all these long 13 years. Of course, even the raising of boundary wall on three sides of the suit property was disputed by the plaintiffs and such dispute cannot be resolved as the pleadings of the parties are absent in this regard and both parties relied upon their respective photographs of the suit property which are contradictory to each other. This Court, however, does not think it necessary to resolve the said dispute here and now as this Court feels that this disputed fact has no bearing on the matter in issue for the present purpose.

29. Under such situation this Court holds that the defendant cannot suffer any irreparable loss and injury if they are prevented from raising any construction during the pendency of the suit, as they have not taken any step for such construction for such a long time. On the contrary, the plaintiffs' sufferance will be irreparable if status quo with regard to the nature and character of the suit property is not maintained as even in the event the plaintiffs succeed in the suit, the relief claimed in the suit may not be ultimately made available to them if the defendant is permitted to raise construction in the prime portion of the suit property exceeding its share in the suit property.

30. In the aforesaid set of facts this Court does not find any justification to interfere with the impugned order. The parties are, thus, directed to maintain status quo with regard to the possession, enjoyment, nature and character of the suit property till the disposal of the suit.

31. The revisional application, thus, stands rejected.

32. Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.