Miscellaneous Appeal No. 122 of 2012 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.122 of 2012 ====================================================== 1. Saiyad Abdullah S/O Saiyad Abdool Bankey Mohalla- Telpa Police Line Quary No. 115-B, Perg. Chirand, P.O- Chapra, P.S- Chapra Town, District- Saran. 2. Saiyad Zafrullah S/O Saiyad Abdool Bankey Mohalla- Telpa Police Line Quary No. 115-B, Perg Chirand, P.O- Chapra, P.S- Chapra Town, District- Saran. 3. Saiyad Kalimullah S/O Saiyad Abdool Bankey Mohalla- Telpa Police Line Quary No. 115-B, Perg Chirand, P.O- Chapra, P.S- Chapra Town, District- Saran. 4. Saiyad Nasib Mullah S/O Saiyad Abdool Bankey Mohalla- Telpa Police Line Quary No. 115-B, Perg Chirand, P.O- Chapra, P.S- Chapra Town, District- Saran. 5. Saiyad Sami Mullah S/O Saiyad Abdool Bankey Mohalla- Telpa Police Line Quary No. 115-B, Perg Chirand, P.O- Chapra, P.S- Chapra Town, District- Saran. 6. Vakil Ahamad S/O Md. Amin, deceased, Mohalla- Sahwajchak, Tinkonia, Perg. Manjhi, P.O- Chapra, P.S- Chapra Town, District- Saran. .... .... Appellant/s Versus 1. Saiyad Nasir Hasan @ Nasir Hassan S/O Nabi Hassan, deceased Mohalla- Rahat Road Karimchak, P.O- Chapra, P.S- Chapra, District- Saran. 2. Faizal Hassan S/O Nasir Hassan, Mohalla- Rahat Road Karimchak, P.O- Chapra, P.S- Chapra, District- Saran. 3. Saiyad Hassn Raja S/O Saiyad Ekbal Raja Saheb, deceased, Mohalla- Dahiyawa, West of Mahmood Chauk, P.O- Chapra, P.S- Chapta Town, District- Saran. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Parijat Saurav, Adv. Mr. Ram Binod Singh, Adv. For the Respondent/s : …………………. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 7 11-09-2013 I.A.No.5371 of 2012 This interlocutory application has been filed for condonation of delay. 2
Legal Reasoning
Patna High Court MA No.122 of 2012 (7) dt.11-09-2013 2 / 5 It is stated by learned counsel that on wrong legal advice initially an appeal was filed before the District Judge which was subsequently withdrawn and the present appeal was filed but the same has resulted in the delay. Having heard learned counsel for the appellant and having perused the reasons assigned, this Court is satisfied therewith and the delay is condoned.
Decision
Interlocutory application stands disposed of. M.A. No. 122 of 2012 Heard Mr. Parijat Saurav, learned counsel for the appellants. This appeal is directed against the order dated 26.7.2011 passed by the Subordinate Judge-I, Saran at Chapra in Title Suit No.624 of 2009 whereby the petition filed by the appellant as plaintiffs in the suit under Order 39 Rules 1 and 2 of the Code of Civil Procedure, has been rejected. The suit in question was filed by the plaintiffs for declaration of their right, title and interest over the suit property which is a plot bearing Khesra No. 11342 having an area of 2 kathas 2 dhurs and a plot bearing Khesra No. 11334 having an area of 1 katha and 8 dhurs in Mohalla- Karimchak, town and P.S. Chapra, District Saran. The suit property belonged to one Syed Jauwad Hussian who had by an oral hibba gifted Plot No. 11342 3 Patna High Court MA No.122 of 2012 (7) dt.11-09-2013 3 / 5 to one Md. Amin who happens to be the father of the plaintiff Vakil Ahmad in the year 1950. The said Md. Amin had gifted the property to the plaintiff Vakil Ahmad by a registered deed of gift dated 16.5.1987. It is the case of the plaintiffs that in view of the circumstances setforth, the name of Md. Amin was entered in Register-2 and he was also paying rent for the said purpose. It is further the case of the plaintiffs that when their possession was being disturbed at the hands of the defendants, it led to a proceedings under Section 144 of the Code of Criminal Procedure and in which the possession of the plaintiffs were found on the suit land and the defendants were restrained from disturbing the possession of the plaintiffs. It is in the circumstances aforementioned that the suit came to be filed for the reliefs setforth. The defendants appeared and filed a written statement in which it was stated with reference to a decree passed in Title Suit No. 243 of 1918 and Title Suit No. 99 of 1919 that Syed Jauwad Hussain had died in the year 1920 and thus the story of oral gift in favour of Md. Amin the father of the plaintiff Vakil Ahmad in the year 1950 does not arise. The defendants also relied upon the documents pertaining to Execution Case No. 1407 of 1944. The trial Court taking note of the judgment passed in the Money Suit 4 Patna High Court MA No.122 of 2012 (7) dt.11-09-2013 4 / 5 Nos. 243 of 1918 and 99 of 1919 and the Execution Case No. 1407 of 1944 which reflected that Syed Jauwar Hussain had deceased in 1920 itself did not find a prima facie case in favour of the plaintiffs for grant of injunction. Mr. Parijat Saurav has appeared for the appellants to question the order impugned and with reference to the observations of the trial Court has submitted that the judgment passed in the Money Suit Nos. 243 of 1918 and 99 of 1919 itself appears doubtful since the said suit was filed by the wife of Syed Jauwad Hussain who was alive on the said date and is stated to have died subsequently in year 1920. He further submits that even when the possession of the plaintiffs have been found on the said property in the proceeding under Section 144 of the Code of Criminal Procedure, the defendants merely to create disturbance have executed one sale deed and are in process of making further transactions and which would only multiply the litigations. I have heard learned counsel for the appellants and I have perused the materials on records. Whether the decree in the money suit holds good, is a matter open for discussion before the trial Court and thus this Court would refrain from expressing any opinion. Suffice it to say that since the trial Court by rejecting the prayer has relied upon the 5 Patna High Court MA No.122 of 2012 (7) dt.11-09-2013 5 / 5 decree passed in the said suits and which yet holds good and is a matter of record, the opinion drawn by the trial Court cannot be faulted with. Having heard learned counsel for the appellants and not finding any legal infirmity in the order impugned, this appeal is disposed of. It goes without saying that any transaction with the suit property by any of the parties to the suit shall be governed by the final outcome of the suit. Bibhash/- (Jyoti Saran, J)