Md. Jalaluddin & Ors. v. Md. Okaish & Ors.

plaintiffs/appellants under Order XXXIX Rule 1 & 2 and Section 151 of the C.P.C. has been rejected Short fact of the case is that plaintiffs /appellants filed a suit vide Title Suit No. 716 of 2010 for a declaration that plaintiffs/appellants had got right, title, interest and possession over Schedule - III property (hereinafter referred to as “suit Patna High Court MA No.821 of 2011 (9) dt. 8-02-2013 property”) and defendants / respondents be temporarily restrained from dispossessing the plaintiffs / appellants during the pendency of the suit. As per the appellants, appellants and respondents are descendants of common ancestor namely, Late Wajid Hussain. Wajid Hussain had four sons namely, Zahid Hussain, Abid Hussain, Hamid Hussain and Zasimuddin. Appellants no. 1 and 2 are son and daughter of Noor Jahan Khatoon (daughter of Zahid Hussain) whereas, respondent no. 1 is son of Abid Hussain and respondent no. 2 is the grand son of Abid Hussain. Similarly, respondent no. 3 is the great grand son of Sk. Hamid in view of genealogical table A & B to the plaint. The further case of appellants is that Zahid Hussain [maternal grandfather (Nana) of appellant no. 1 and 2] had purchased several land measuring an area of 3.25 acres by registered sale deed before cadestral survey and came in exclusive actual physical possession. However, in cadestral survey, by mistake, the aforesaid lands were recorded in the joint name of Zahid Hussain and his three brothers along with one Jassimullah. However, in the survey record some of the property was recorded in the name of Wajid Hussain. After the death of Wajid Hussain dispute arose between four brothers which include maternal grand father of appellant no. 1 and 2. Subsequently, said four brothers privately partitioned the entire Patna High Court MA No.821 of 2011 (9) dt. 8-02-2013 property of Schedule – I and II before 13.3.1942. Purchased property of Zahid Hussain, as per the case of the appellants, was wrongly recorded in the survey khatian in the name of three brothers of Zahid Hussain, who were not owners and possessors of Schedule – I property, and thereafter, Abid Hussain , son of Late Wajid Hussain executed an agreement (deed of Ladavi) in favour of Sadarul Haque and Badrul Haque, sons of Zahid Hussain maternal uncle (Mama) of appellant no. 1 and 2. The appellants claimed that they were cultivating and in possession over the land since more than 70 years. On 18.5.2009 the Mutation Appeal No. 22 of 2006, which was preferred by the respondent no. 2 against Mutation Case No. 139/2 of 2005-06, was allowed, though it was time barred. Thereafter dispute regarding the title arose and as such suit i.e. T.S. No. 716 of 2010 was filed for reliefs, as mentioned hereinabove. Subsequently, the appellants filed a petition under Order 39 Rule 1 & 2 and Section 151 of the C.P.C. to restrain the respondents from dispossessing the plaintiffs / appellants and also not to alienate / sale the disputed property to anyone till final disposal of the suit. However, by the impugned order the learned Sub Judge has rejected the same, which has been assailed in the present case. Mr. Md. Anis Akhtar, learned counsel for the appellants Patna High Court MA No.821 of 2011 (9) dt. 8-02-2013 submits that it was a fit case for grant of injunction but without any plausible ground the learned court below has rejected the same, which requires interference. In this case, Mr. Tejendra Sinha, had appeared on behalf of respondent no. 2 and 3. Despite valid service of notice, the respondent no. 1 had not appeared, and after hearing, order was reserved. Sri Tejendra Sinha, learned counsel for the respondents has argued that basic ingredients for grant of injunction was not shown by the appellants. It is admitted case that both the parties are descendants of a common ancestor namely Wajid Hussain. He further submits that the maternal grandfather of the appellants had predeceased Wajid Hussain long back, and as such, the plea of the appellants that after the death of Wajid Hussain his four sons had partitioned the property is itself untrue. In any event, there is no prima facie case in favour of the appellants besides non availability of other ingredients for grant of injunction, and as such, the learned Sub Judge has rightly rejected the same. Besides hearing learned counsel for the parties, I have also perused the materials available on record. The Annexure - 2 to the present appeal is a copy of written statement filed on behalf of defendant /respondent no. 2 Patna High Court MA No.821 of 2011 (9) dt. 8-02-2013 and 3 before the court below in Title Suit No. 716 of 2010. It has specifically been stated in paragraph no. 15 of the written statement that out of four sons of Wajid Hussain, Zahid Hussain ( maternal grandfather of appellants ) and Jasimuddin had predeceased their father so there was no question of dispute between four brothers of Zahid Hussain. In support of the said plea, in the same paragraph of the W.S. fact regarding deed of gift dated 3.8.1931 executed by Wajid Hussain has been mentioned. It has further been indicated in the W.S. that Zahid Hussain and Jasimuddin predeceased their father prior to

3.8.1931 so there is no question of partition of property among themselves and heirs on 13.3.1942. Moreover, the ground which was taken in the injunction petition appears to be not sufficient for grant of injunction, and accordingly, this court is of the opinion that learned Sub Judge II has rightly rejected the injunction petition which requires no interference. Accordingly, the appeal stands dismissed. Praful/- (Rakesh Kumar, J)