Jamiluddin v. Kazim Ali Khan
Case Details
Neutral Citation No. - 2024:AHC:166094 1 Court No. - 36 Case :- FIRST APPEAL FROM ORDER No. - 1016 of 2024 Appellant :- Jamiluddin Respondent :- Kazim Ali Khan @ Naved Miya And Another Counsel for Appellant :- Krishna Mohan Tripathi,Sharad Sharma Counsel for Respondent :- Syed Fahim Ahmed Hon'ble Kshitij Shailendra,J. 1. Heard Shri P. K. Singh, learned counsel for the appellant and Shri Syed Fahim Ahmed, learned counsel for the respondents. 2. The instant appeal has been filed under Order XLIII Rule 1(r) of Civil Procedure Code, 1908 challenging the order dated 26.02.2024 whereby the learned Additional Chief Judicial Magistrate, Court No.2/Additional Civil Judge (Senior Division), Rampur has rejected the injunction application filed by the plaintiff-appellant on the ground that matter is pending before the Hon'ble Supreme Court and, therefore, at this stage, it is not appropriate to grant any injunction. 3. Learned counsel for the appellant submits that in the year 1949, Nawab Rampur Sayed Raza Ali Khan executed a registered sale deed dated 15.02.1949 in favour of appellant's father Shamshuddin who sold the property to the appellant by another registered sale deed dated 15.06.1949 and delivered possession of the property to him. The appellant is carrying out motor repairing activity in a garage in the name and style of Star Engineering Workshop. In 1972, a suit for partition of property was filed by the co-sharers of huge property including the property in dispute. The 2 suit was dismissed by the High Court, against which decision, the aggrieved party approached the Hon'ble Supreme Court. The Supreme Court, by a detailed judgment dated 31.07.2019 allowed the appeal, set aside the High Court's judgment and decreed the partition suit. It issued certain directions to the District Judge, Rampur as regards
Facts
convincing the parties to make actual division of properties
Legal Reasoning
There is no dispute about the fact that the property purchased by the appellant also forms subject matter of partition scheme although Shri Singh contends that the District Judge has excluded the property from the partition scheme and, therefore, the claim for injunction is unaffected by the proceedings which are pending before the Hon'ble Supreme Court. 8. At this stage, no final opinion can be formed by this Court as to whether the property purchased by the appellant has been excluded by the District Judge. What the Court finds from the order dated 06.12.2021 passed by the District Judge is that it was only the contention advanced by the plaintiff- appellant which has been noted in the order and it cannot be treated as a finding at this stage. Nevertheless, whether the appellant has an independent right over the property or his right, title, interest or possession is to be ultimately affected by partition scheme, would depend upon adjudication made by the Hon'ble Supreme Court but, in the mean time, if the 5 garage is dismantled or possession of the possessor is disturbed, certainly it would run contrary to the partition scheme, would also create complications and may give rise to multiplicity of proceedings both of civil and criminal nature. 9. As far as contention of Shri Syed Fahim Ahmed based upon order dated 23.11.2020 is concerned, the Court finds that said order was passed in a Misc. Case when the present appellant filed objections against the Amin Commissioner's report dated 20.11.2020. Objections were rejected on the ground that the District Judge had no jurisdiction to decide the right and title of the applicant in that matter. The District Judge specifically observed that the applicant may file suit to declare right and title in the alleged land before the competent court and, therefore, it cannot be said that claim for injunction was rejected by the District Judge under order dated 23.11.2020. 10. It is necessary to quote the directions issued by the Hon'ble Supreme Court in its order dated 31.07.2019 as regards partition scheme to be drawn by the District Judge. Paragraph 47 of the judgment is reproduced as under:-
Arguments
by settlement and determine the shares. It is contended that pursuant to the order of Hon'ble Supreme Court, the District Judge, Rampur has drawn a partition scheme dated 06.12.2021 and has sent the same to Hon'ble Supreme Court. 4. The instant appeal arises out of another Original Suit No.366 of 2020 (Jamiluddin vs. Kazim Ali Khan @ Naved Miyan and others) filed by the appellant claiming a decree for injunction against the defendant-respondents not to cause interference in possession and running of the workshop by the plaintiff-appellant. Submission is that the matter which is pending before the Hon'ble Supreme Court pursuant to the partition scheme sent by the District Judge has no direct bearing on the claim for injunction. In any case, since the property in dispute is included in the partition scheme, naturally, the parties shall be bound by the final decree to be drawn by the Hon'ble Supreme Court or by any other Court as per the directions issued by the Hon'ble Supreme Court. 5. Per contra, learned counsel for the respondents submits that once the property in dispute is included in the partition scheme and matter has been referred to the Larger Bench of the Apex Court under the order dated 17.10.2023, the trial 3 court was justified in rejecting application for injunction. Placing reliance upon the judgment of Hon'ble Supreme Court in the case of Chhavi Mehrotra vs. Director General, Health Services, 1995 Supp (3) SCC 434, it is contended that judicial discipline would require that in a hierarchical system, it is imperative that conflicting exercise of jurisdiction should be avoided. In sum and substance, the contention is that so long as the matter is not finally decided by the Larger Bench of the Hon'ble Supreme Court, no injunction can be granted in favour of the appellant. He further submits that the District Judge, Rampur has also rejected the claim of appellants by order dated 23.11.2020 passed in Civil Misc. Case No.147 of 2019 (Mrs. Talat Fatima Hasan & Ors. vs. Mohd. Ali Khan & Ors.). He has placed copy of this order before the Court which is taken on record. He also submits that name of the appellant was not recorded in the revenue records. 7. Refuting the said submissions, Shri P.K. Singh submits in rejoinder that he is not disputing the pendency of proceedings before the Hon'ble Supreme Court and undertakes that the appellant would be bound by the final decree to be drawn in the partition proceedings but presses his claim for injunction by contending that, in case, his possession is disturbed or the garage is dismantled, it will also run contrary to the partition scheme already drawn by the District Judge which has to be given a seal of approval by the Hon'ble Supreme Court either way. As regards recording the name in the revenue records, Shri Singh submits that 4 appellant is paying municipal taxes and other government dues and is in actual and physical possession since 1949. 7. Having heard learned counsel for the parties, I find that there are two proceedings in the instant case; one in the nature of partition suit which was instituted by the co-sharers and ultimate partition scheme is pending consideration before the Hon'ble Supreme Court. The other proceedings are in the nature of simpliciter suit for injunction filed by the appellant on the basis of title vested in him by virtue of registered sale deed of 1949, in which, plea of possession was set up by him.
Decision
“47. In view of the above discussions, we allow the appeals, set aside the judgments of learned Single Judge and Division Bench of the High Court of Judicature at Allahabad, and determine the shares of the properties in terms of Para 9-F of the plaint. The appeals are accepted and a decree is passed in the following terms:- (1) The parties shall be entitled to succeed to the properties of late Nawab Raza Ali Khan, set out in 6 Schedules A and B to the plaint, as per personal law and in the shares set out in para 9-F of the amended plaint. (2) The first effort shall be to divide the immovable properties (set out in Schedule A to the plaint) as per the respective shares, by metes and bounds and for this purpose the Trial Court may appoint a Commissioner to assist it. (3) In case the division of the immovable properties (set out in Schedule A to the plaint) is not feasible by metes and bounds the Trial Court shall fix the owelty money and follow the procedure prescribed by law so that at the first instance efforts are made to keep the properties within the family. (4) To evaluate the value of moveable properties left behind by Nawab Raza Ali Khan (set out in Schedule B to the plaint), we direct the Trial Court to appoint a Commissioner. Properties shall also be divided as per the shares and if that is not feasible owelty money will be fixed. (5) Prayer for decree of mesne profits is rejected since no evidence has been led in this regard. (6) The defendant no.1/2 and defendant no. 1/3 shall render accounts in respect of the incomes, profits, usufructs and benefits inherited by them or enjoyed by deceased defendant no.1 and deceased defendant no. 1/1. These shall be adjusted while determining the value of the properties falling to their shares and also the owelty money. (7) The Trial Court shall also determine whether the defendant no.1 (since deceased), defendant no.1/1 (since deceased), defendant no.1/2 or defendant no.1/3 have 7 sold or transferred any movable property or immovable property during the pendency of these proceedings. The value of such immovable property or movable property sold or transferred shall obviously be deducted from the shares of defendant no.1 /2 and defendant no.1/3. (8) We direct all the parties to appear before the District Judge, Rampur on 02.09.2019 and request the District Judge, Rampur to keep the case on his docket and proceed further. The District Judge may first try to impress upon the parties to make the actual division of the properties by settlement by mutual agreement since the main dispute with regard to the rule of succession and the shares has been determined. (9) As the suit has been pending for almost half a century and the parties have been litigating for more than 5 decades and some of the parties are at an advanced age, we direct the trial court to dispose of the matter in terms of our directions above at the earliest but, in any case, not later than 31.12.2020. “ 11. In view of the above discussion, without recording any finding as regards independent right of the plaintiff-appellant based upon sale deed of 1949, the instant appeal is disposed off in the following terms:- (i). The order dated 26.02.2024 passed by the learned Additional Chief Judicial Magistrate, Court No.2/ Civil Judge (Senior Division), Rampur, impugned in the instant appeal, is hereby set aside; (ii). The parties to the Original Suit No.366 of 2020 (Jamiluddin vs. Kazim Ali Khan @ Naved Miyan and others) are directed to maintain status quo till 8 disposal of the suit with regard to the property forming subject matter of the suit in relation to its nature and possession; (iii). This order shall remain subject to final order to be passed by the Hon'ble Supreme Court in the pending proceedings and parties shall be bound by the ultimate partition scheme to be finalized under the order of the Apex Court. Order Date :- 18.10.2024 Jyotsana