Sk. Mahammad Hossain vs Abu Syid & Ors
2023 Latest Caselaw 2371 Cal

10.04.2023
Item No. 22
 Court No.32
 Avijit Mitra
                                   FMA 613 of 2022

                             Sk. Mahammad Hossain
                                      Versus
                                 Abu Syid & ors.


                      Mr. Bratindra Narayan Ray,
                      Ms. Shetparna Roy
                                        ...for the appellant
                      Mr. Debasish Ray
                                  ....for the respondent nos. 54 to 58

1. The present appeal has been preferred challenging

an order dated 28th March, 2022 passed by the learned Civil

Judge (Senior Division), Kandi, Murshidabad in Partition

Suit No.273 of 2021.

2. Mr. Bratindra Narayan Ray, learned advocate

appearing for the appellant/plaintiff submits that in

connection with the suit for partition, an application under

Order 39 Rules 1 and 2 read with Section 151 of the Code of

Civil Procedure (in short, the Code) was filed by the appellant

in which an order was passed on 2 nd July, 2021 restraining

the defendant nos. 54 to 58/ respondent nos. 54 to 58 in the

present appeal (in short, the said respondents) from making

any construction in the suit property till the next date. The

parties exchanged their affidavits and thereafter the

application was rejected on contest by the order impugned in

the present appeal.

3. He submits that inspite of the order of status quo,

the said respondents in violation of the said directives

continued to raise construction. Such conduct itself reveals

that the said respondents were intending to complete the

construction and to create third party interest in the suit

property.

4. He argues that the allegations and counter

allegations levelled by the parties ought to have been

examined with reference to evidence but a perusal of the

order impugned would reveal that the issues involved in the

lis have been finally decided by the learned Court at the

interim stage.

5. He contends that both the appellant and said

respondents had admitted the ownership of one

Torimunnecha Bibi, who was the original C.S. recorded

owner. Torimunnecha Bibi executed oral heba in favour of

Amir Hossain, the predecessor-in-interest of the appellant

and such fact stands corroborated by the deed of

relinquishment being no.9268 of 1974 executed in favour of

Amir Hossain by Torimunnecha Bibi. However, the learned

Court below erroneously proceeded on the basis that the

number of the said relinquishment deed was 4268 of 1974

and refused to pass the interim order as prayed for.

6. Mr. Ray contends that without considering the

heirship certificate, the contents of the relinquishment deed,

the record of rights and the decree passed in (Civil) Suit no.

180 of 1951, the learned Court below expressed its doubt

about the identity of the appellant and refused the interim

order on the basis of surmises and conjectures.

7. He argues that the learned Court erred in law in

observing that an oral heba is not permissible in West

Bengal without ascertaining as to whether the essential

requisites of a gift under Mohammadan law stand satisfied

moreso when its form is immaterial. In support of such

contention reliance has been placed upon the judgments

delivered in the cases of Hafeeza Bibi & Ors. Vs. Shaikh

Farid (dead) by LRS. & Ors., reported in AIR 2011 SC 1695

and Asgar Ali Vs. Tahir Ali & Another, reported in AIR 2013

MP 151.

8. According to Mr. Ray, the learned Court below had

also not considered the fact that the land in question is

'Aman' and without obtaining appropriate order for

conversion, as required under Section 4C of the West Bengal

Land Reforms Act, no construction can be raised by the

respondents.

9. Mr. Debasish Ray, learned advocate appearing for

the respondent nos. 54 to 58 in the present appeal submits

that the arguments advanced on behalf of the appellant are

not restricted to the averments made in the plaint and in the

injunction application. The plaintiff/appellant has in fact

admitted the title of the said respondents in the suit property

and has accordingly impleaded them in the partition suit

and as such the appellant is estopped from raising any

dispute as regards the title of the said respondents. The deed

from which the said respondents derives title has also not

been challenged and there is no prayer towards cancellation

of the deed.

10. According to Mr. Ray, no prima facie case has been

made out by the appellant warranting issuance of an interim

order. The interim order, as prayed for, is not supported by

the averments made in the plaint or in the injunction

application. The glaring inconsistencies debar the appellant

from availing any equitable relief. In support of such

contention reliance has been placed upon judgments

delivered in the cases of Ece Industries Limited (2) Vs. S.P.

Real Estate Developers (P) Ltd. & Anr., reported in (2009) 12

SCC 776 and Mandali Ranganna & Ors. etc. Vs. T.

Ramachandra & Ors., reported in AIR 2008 SC 2291.

11. He argues that the prayer for interim order has

been rightly refused by giving cogent reasons and there is no

infirmity in the order impugned warranting interference of

this Court.

12. Heard the learned advocates appearing for the

respective parties and considered the materials on record.

13. While granting an interim order of temporary

injunction, the Court is required to see whether there exists

a prima facie case or whether the balance of convenience and

inconvenience tilts in favour of the party seeking interim

order or whether denial of the interim protection would

cause irreparable loss and injury which cannot be

compensated by payment of money.

14. A perusal of the judgment would reveal that the

Court came to a prima facie finding that 'both the plaintiffs

and defendants are admitting the ownership of

Torimunneccha Bibi who was the original recorded owner'.

The learned Court was also not in a position to finally decide

as to whether Torimunneccha and Kamini Bibi were the

same and identical person and as regards the identity of

Torimunneccha. There are serious disputed questions to be

tried in the suit and the same require thorough examination

with reference to evidence. The suit is for partition and we

do not think that grant of the interim order, as prayed for

will cause a greater loss and prejudice to the respondent

nos. 54 to 58 than the loss and prejudice in the absence

thereof is likely to cause to the appellant.

15. We are unable to accept the contention of Mr.

Debasish Ray that no prima facie case has been made out by

the appellant to obtain the interim order. It is also not a case

that the appellant has suppressed material facts or had slept

over his rights. The conduct of the appellant does not debar

him from availing the interim protection and the denial of

the same may lead to alteration of nature and character of

the suit property and multiplicity of proceedings.

16. It is well known that a decision is an authority for

what it decides and not what can logically be deduced

therefrom. Even a slight distinction in fact or an additional

fact may make a lot of difference in decision making process.

The judgment is a precedent for the issue of law that is

raised and decided and not observations made in the facts of

any particular case. There is no dispute as regards the

proposition of law as laid down in the judgments upon which

reliance has been placed by the respondents, however, the

same are distinguishable on facts.

17. For the reasons, discussed above, the order dated

28th March, 2022 passed by the learned Civil Judge (Senior

Division), Kandi, Murshidabad in Partition Suit No.273 of

2021, is set aside and the parties are directed to maintain

status quo as regards the nature, character and possession

of the suit property as on date till the disposal of the suit.

The parties are also restrained from creating any third party

interest over the suit property till the disposal of the suit.

18. The learned Court below is requested to take all

necessary steps towards expeditious disposal of the suit,

without granting any unnecessary adjournment to either of

the parties.

19. With the above observations and directions the

appeal and the connected application are disposed of.

20. There shall, however, be no order as to costs.

21. Urgent photostat certified copy of this order, if

applied for, be given to the learned advocates for the parties.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)