Ali Hussain v. Md. Safiullah

Siwan, Pergana- Bara, P.S.- Siwan Town, P.O. and District- Siwan. ……Defendant….?Respondent 2nd Set.

24. Md. Sabbir Khan, S/o late Baboo Jaan Khan. By faith Islam, R/o Purani Bazazi Siwan, P.S.- Siwan Town, P.O. and District- Siwan. ……Defendant……Respondent 3rd Set.

25. Shah Nawaz Serajul, S/o late Serajul Haque. By faith Islam, R/o Siwan Town, Mohalla- Naya Bazar, Durbar Hata, P.S.- Siwan Town, P.O. and District- Siwan. .... Defendant .... Respondent 4th Set. ====================================================== Appearance : For the Appellant/s : Mr. Ranjan Kumar Dubey For the Respondent/s : Mr. Jitendra Prasad Singh. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 14 11-07-2013 Heard Mr. Ranjan Kumar Dubey, learned counsel appearing for the appellants and Mr. Jitendra Prasad Singh, learned counsel appearing for respondent nos.1 to 3, 5, 6, 8 to 18 and 20 to 24. This appeal is directed against the order dated Patna High Court MA No.585 of 2011 (14) dt.11-07-2013 3

23.6.2011 passed by the learned Sub-Judge 3rd, Siwan in Title Suit No.526 of 2010, whereby the learned trial court has rejected the petition filed by appellants who are plaintiffs in the court below under Order 39 rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) read with section 151 thereof praying for temporary injunction restraining the defendants from alienating the suit property. The suit in question has been filed by the plaintiffs seeking declaration of title of the plaintiffs and defendant no.25 over the suit land as also for restraining the defendants from alienating or transferring the suit land during the pendency of the suit by an order of temporary injunction. Whereas it is the case of the plaintiffs that by virtue of a judgment and decree passed in Title Suit No. 189 of 1999 and Title Suit No.188 of 2009 they have title over the suit property, this position is being controverted by the contesting defendants who claim their title over the suit land by virtue of a sale deed dated 30.10.1929. It is not in dispute that following the preliminary decree passed in Title Suit No.189 of 1999, whereas 7/8 of the joint family property fell in the share of the branch of Jhingur Mian, the remaining 1/8 share came in the share of late Maula Mian, husband of Most. Bhagwano. Both the parties have their lineage Patna High Court MA No.585 of 2011 (14) dt.11-07-2013 4 from a common ancestor Khairu Mian. It is the case of the plaintiffs that Most Bhagwano was issueless and had adopted her sister’s daughter, namely, Habiban Khatoon who remained with her until her death and thus by an oral Hibba the property of Most. Bhagwano passed on Habiban Khatoon. The plaintiffs claimed their descendancy from Habiban Khatoon and thus claimed title over the suit property. On the other hand, the case of the contesting defendants is that Most. Bhagwano did not die issueless rather was survived by a daughter Bibi Unmul Fatma who was married to Shah Safiullah. It is the case of the defendants that by an oral Hibba the suit property was given by Most. Bhagwano to her son-in-law Safiullah and consequent upon his death the property devolved on his wife Unmul Fatima who, by a registered sale deed dated 30.10.1929, had sold the suit property in favour of the ancestors of the contesting defendants. The trial court taking into consideration the rival contentions and the documents relied upon by the parties in support of their contentions did not find a prima-facie case in favour of the plaintiffs nor found any irreparable loss being caused to them by refusal of injunction and holding as such has rejected the prayer and hence this appeal. Patna High Court MA No.585 of 2011 (14) dt.11-07-2013 5 Mr. Dubey has appeared for the appellants and in support of the prayer for injunction has submitted that it has been a general practice that in a dispute of such nature the parties are directed to maintain status-quo and refrain from any alienation so as not prejudice the affected parties. Relying upon a judgment passed in Title Suit No.189 of 1999 and Title Suit No.188 of 2009 he submits that the title of the plaintiffs is no more in question rather is further fortified by an order dated

7.10.2010 passed in a proceeding under section 144 of the Code of Criminal Procedure upholding the claim of possession of the plaintiffs over the suit property. Although learned counsel has relied upon the said order but reference thereof is neither found in the petition for injunction filed on behalf of the plaintiffs in the court below nor is the same referred to in the impugned order. Learned counsel in support his prayer for stay has relied upon a judgment of the Supreme Court reported in (2004) 8 SCC 488 (Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass). It has further been submitted by Mr. Dubey that the apprehension of the plaintiffs is substantiated by the fact that no sooner the prayer was rejected by the trial court by impugned order passed on 23.6.2011 that the defendants have executed a sale-deed on 11.7.2011, a copy whereof is part of the Patna High Court MA No.585 of 2011 (14) dt.11-07-2013 6 interlocutory application (I.A. No.5568 of 2011). The arguments of Mr. Dubey has been contested by Mr. Singh, learned counsel appearing for the defendants who submits that the judgment and decree passed in the two suits in no manner affects the title of the defendants over the suit property. It is stated that Title Suit No.189 of 1999 was filed for partition and in which a preliminary decree was passed upholding the shares of the parties but the plaintiffs never bothered to move for final decree proceedings in furtherance of the preliminary decree. He submits that the subsequent suit filed by some of the defendants giving rise to Title Suit No.188 of 2009 was also filed for partition and was dismissed under Order 7 rule 11 of the Code upon objections being raised by the plaintiffs but as against that the parties have moved in appeal though stands dismissed for non-prosecution. He, however, submits that the verdict in the suit relied upon by the plaintiffs in any manner affects the status of the matter in so far as the case in hand is concerned. I have heard learned counsel for the parties and have perused the materials on record. There is no confusion in the factual aspect of the matter regarding the claim of the parties over the suit property based upon the lineage. It is again not in Patna High Court MA No.585 of 2011 (14) dt.11-07-2013 7 dispute that whereas the plaintiffs claim descendancy from the adopted daughter of Most. Bhagwano, the contesting defendants claim to be the purchaser from the daughter of Most. Bhagwano. Whether or not Most. Bhagwano was survived by a child is an issue open for the trial court and thus this Court would refrain from expressing any opinion thereon. Suffice it to say that the registered sale deed dated 30.10.1929 forms the basis for the contesting defendants for claiming title over the suit property and which is a matter of record. Whether the plaintiffs are able to shift this basis during the course of the suit would again depend upon the final outcome of the suit but until such time definitely the balance of convenience tilts in favour of the defendants. The alienation, if any, made by the defendants would again not affect the interest of the plaintiffs inasmuch as any such alienation during the pendency of the suit would obviously be governed by the final outcome of the suit. Having held as such, I find no necessity to interfere with the order impugned. This appeal is accordingly disposed of. SKPathak/- (Jyoti Saran, J)