Shaikh Ali Hossain & Ors vs Sk. Showkat Ali & Anr

5. The predecessor-in-interest of the respondents namely Ujir Ali Mistry and Bahar Ali Mistry were originally the owners of Dag No.129 under Khatian No.943 of Mouza Kasba being holding No.108, Dr. Girindra Sekhar Basu Road, Calcutta comprising 37 decimals of land. The predecessor-in-interest of the respondents sold 33 decimals of land out of 37 decimals to Late Shaikh Anwar Hossain ("S.A. Hossain" for short), the predecessor-in-interest of the appellants 1 to 7, by a registered deed of sale dated 27th February, 1948. The 33 decimals, as aforesaid, was identified as holding No.108A, Dr. Girindra Sekhar Basu Road, Calcutta 700

039. Subsequently, disputes and differences cropped up between the predecessor-in-interest of the parties with respect to the validity of the sale deed and title and possession of the respective parties in connection with the premises No.108A, Dr. Girindra Sekhar Basu Road, Calcutta. Three suits were filed by the predecessor-in- interest of the parties against each other concerning the aforesaid 33 decimals of land. However, the dispute that had arisen in respect of the aforesaid 33 decimals was resolved by this court by an order passed in SLP [C] No.4263-65 of 5 1992 [Satkari Bibi @ Mata Bibi and Ors. Vs. Sk. Anwar Hossain and Ors.] in the following manner:

2. The facts are given in detail in the Judgment of Brother Chatterjee J. Let me consider the undisputed facts. Premises No. 108 measuring 37 decimals, belonged to Ujir Ali Mistri (father of plaintiffs) and his brother 26 Bahar Ali Mistri. They sold 33 decimals out of the said property to their nephew S. A. Hossain (of whom defendants 1 to 7 are the LRs.) under registered sale-deed dated 27.2.1948. On the application of S. A. Hossain, the portion (33 decimals) purchased by him was bifurcated and assigned a separate number identified as Premises No. 108A. More than a decade later, Title Suit No. 143/1961 was filed by Ujir Ali and LRs. of Bahar Ali for a declaration that the sale-deed dated 27.2.1948 in favour of S.A.Hossain was obtained by fraud and misrepresentation and therefore invalid. The said suit was dismissed and title of S.A.Hossain was upheld. That decision attained finality in view of dismissal of the appeal and second appeal. Thereafter, S. A. Hossain filed Title Suit No.67/1971 asserting his title and possession in respect of premises No.108A measuring 33 decimals and sought permanent injunction to restrain the legal heirs of Ujir Ali and Bahar Ali from interfering with his possession. Counter suits were filed in Suit Nos. 189/1971 (for permanent injunction) and Title Suit No.421/1979 (for declaration of title by adverse possession) by the Legal heirs of Ujir Ali (widow, son and daughter). In Title Suit No.421/1979, S. A. Hossain was arrayed as the first defendant and the LRs. of Bahar Ali as defendants 2 and 3 as by then they supported S. A. Hossain. By common judgment dated 26.8.1982 S.A.Hossain's suit for injunction was decreed and the suits filed 27 by LRs of Ujir Ali were dismissed. The trial court held that S.A.Hossain had proved his possession of 33 decimals in Premises No.108A and LRs of Ujir Ali had miserably failed to prove that they were in possession of Premises No.108A. The said judgment was affirmed in appeal by the Addl. District Judge, Alipur by common judgment dated 18.5.1984. The Second appeals filed by the LRs namely Ujir Ali were dismissed by the High Court by a common judgment dated 14.3.1991. The said common judgment was challenged by the LRs of Ujir Ali in Civil Appeal No.3983-85/1995 (arising out of SLP (C) No. 4263-65/1992). This Court disposed of the said appeals by judgment dated 24.3.1995, recording the submissions on both sides. LRs of Ujir Ali (appellants therein) admitted that S.A. Hossain (first respondent therein) had purchased 33 decimals from Ujir Ali and Bahar Ali. S. A. Hossain and other respondents in the said appeals confirmed that the LRs. of Ujir Ali (the appellants therein), were in possession of 6.5 decimals of land and that they were the owners of the said 6.5 decimals of land. The LRs of Ujir Ali (appellants therein) admitted that S. A. Hossain was in possession of the remaining land. This Court having recorded the said submissions disposed of the appeals with a direction that each party shall not disturb the possession of the other.

17.For the reasons aforesaid, we are not inclined to interfere with the impugned order of the High Court directing maintenance of status quo in respect of the suit properties. However, we make it clear that the observations that have been made by us or the High Court shall not come in the way of the parties agitating before the trial Court at the time of disposal of the suit after evidence from both the sides is 24 adduced. In the event the written statement in the suit has not yet been filed by the Appellants, the same shall be filed within 8 weeks from the date of production of a copy of this order in the trial court. The Trial court is directed to dispose of the suit within one year from the date of filing of the written statement positively without granting any unnecessary adjournment to either of the parties.

18.The appeal thus fails and is hereby dismissed without any order as to costs.

(b) The parties had assumed that the total extent was 37 decimals.

13. I would therefore allow this appeal and set aside the order of the High Court, and restore the order of the trial court, as confirmed by appellate court rejecting the application for temporary injunction.

..........................J [R. V. Raveendran] New Delhi;

May 14, 2008.

______________________________________________________ 39 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELATE JURISDICTION CIVIL APPEAL NO._3650_OF 2008 (arising out of SLP(C)NO.16346 of 2005) SHAIKH ALI HOSSAIN & ORS. ....PETITIONERS/ APPELLANTS VERSUS SK. SHOWKAT ALI & ANR. ....

RESPONDENTS ORDER In view of difference of opinion, the Registry is directed to place this matter before Hon'ble the Chief Justice of India for appropriate orders.