District Ajmer v. Smt. Zamila Bibi Wife Of Late Saiyad Ali Zaki, Aged About

Smt. Rehana Bibi Daughter Of Saiyad Nadir Hussain, Aged About 35 Years, Resident Of - Taragarh District Ajmer.through Power Of Attorney Saiyad Aamad Hussain Son Of Saiyad Nadir Hussain, Age-37 Years Resident Of Taragarh District Ajmer. Saiyad Kamal Hussain Son Of Saiyad Nadir Hussain, Age-44 Years, Resident Of Taragarh District Ajmer.

5. Smt. Rukhasana Bibi Daughter Of Saiyad Nadir Hussain, Aged About 33 Years, Resident Of - Taragarh District Ajmer. Through Power Of Attorney Saiyad Aamad Hussain Son Of Saiyad Nadir Hussain, Age-37 Years Resident Of Taragarh District Ajmer. Saiyad Kamal Hussain Son Of Saiyad Nadir Hussain, Age-44 Years, Resident Of Taragarh District Ajmer. ----Appellants Versus

1. Smt. Zamila Bibi Wife Of Late Saiyad Ali Zaki, Aged About 73 Years, Resident Of Taragarh District Ajmer.

2. Smt. Kaneez Fatima Wife Of Mohammad Yunus, Aged About 44 Years, Resident Of Taragarh District Ajmer.

3. Saiyad Mohammad Dawaud Son Of Mohammad Yunus, Aged About 29 Years, Resident Of Taragarh District Ajmer.

4. Saiyad Mohammad Danish Son Of Mohammad Yunus, Aged About 26 Years, Resident Of Taragarh District Ajmer. [2025:RJ-JP:6373] (2 of 4) [CMA-230/2024]

5. Saiyad Sartaj Son Of Mohammed Yunus, Aged About 24 Years, Resident Of Taragarh District Ajmer.

6. Khushnuma Daughter Of Mohammad Yunus, Aged About 22 Years, Resident Of Taragarh District Ajmer. ----Respondents For Appellant(s) : Mr. Abhay Nath Deora for Mr. Rajat Ranjan For Respondent(s) : Mr. Gajender Singh Rathore HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 07/02/2025 Order

1. Instant Civil Misc. Appeal is preferred by appellants plaintiffs aggrieved from dismissal of TI appliation no. 9/2020 (5/2020) by learned Additional District Judge no.5, Ajmer on 09.11.2023.

2. Learned counsel for appellants submits that the appellants plaintiffs have filed a suit for partition of suit property by metes and bounds but prayed for injunction to protect the property during pendency of civil suit. He further submitted that as per avernment made in plaint and asserted by way of affidavit, the plaintiffs have established that they have a prima facie case to secure property during pendency of civil suit. He further submitted that the learned trial court has failed to consider that Meharnama dated 02.11.1962, gift deed dated 27.12.2019 and will dated

05.05.2017 is not binding upon the plaintiffs as they were executed against personal law without any authority.

3. Aforesaid contentions were opposed by learned counsel for respondent(s) on the ground that the petitioners are not entitled for any partition as they have filed a frivolous suit for seeking [2025:RJ-JP:6373] (3 of 4) [CMA-230/2024] partition, on a property not in possession of plaintiffs. He further submitted that the suit property claimed by plaintiffs was transferred by way of registered gift deed in 1959 by Saiyad Dayam Ali to Syed Ali Zaki and Syed Ali Zaki has executed a registered Meharnama in 1962 in favour of Zamila Bibi at the time of their marriage which was further transferred by Zamila Bibi by way of registered gift deed in the year 2019 in favour of Fatima. He further submitted that Syed Ali Zaki has also executed a will in 2017 in favour of respondent nos. 3 to 5 regarding right of Baridari. He further submitted that the plaintiffs have no right to file a suit for partition on metes and bounds and also ask for protection of the suit property. At last, he submitted that in case the suit is decided expeditiously then they will co-operate in early disposal of civil suit.

4. Heard learned counsel for parties and perused the material placed on record.

5. A civil suit was filed by legal heirs of Samima Bibi who was daughter of Sekul Bibi for partition of property of husband of Sekul Bibi, Late Syed Dayam Ali. The trial court after considering the documents and avernment on record has found that the plaintiffs were not in possession and they have no prima facie case in their favour. Ultimately, the trial court has dismissed the TI application.

6. A perusal of pedigree mentioned by plaintiff in para no. 1 of plaint indicate that Syed Dayam Ali has two wives first Jano Bibi and second Sekul Bibi and the plaintiffs are children of Samima Bibi (daughter of Sekul Bibi) whereas respondents are related to Jano Bibi. Herein, the facts mentioned by trial court indicate that [2025:RJ-JP:6373] (4 of 4) [CMA-230/2024] Syed Dayam Ali (owner of property) has executed a registered gift deed in favour of Syed Ali Zaki (son) on 21.10.1959. At the time of marriage of Syed Ali Zaki, the property was assigned as property of Meharnama in 1962, thereafter two two gift deeds firstly by Syed Ali in 2017 and second by Zamila Bibi in 2019 were executed. A perusal of aforesaid clearly indicate that the trial court has drawn a conclusion that the plaintiffs were not in possession of suit property and prima facie they were not able to establish their prima facie case.

7. Considering the entirety of facts and circumstances of the case, we cannot express our opinion on any of the transaction as mentioned hereinabove in defence by the respondents defendants before the trial court or this court but the instant suit is for partition, on basis of pedigree mentioned in plaint.

8. After considering the arguments, we are also the opinion that there is no prima facie case to restrain defendants respondents from use and enjoyment of suit property in any manner, therefore, the appellants plaintiffs are not entitled for any injunction. The trial court has rightly dismissed the TI application.

9. In view of aforesaid, the instant civil misc. appeal is hereby dismissed but the trial court is directed to expedite the trial of civil suit and should make all endeavour to dispose of at the earliest.

10. Misc. application, if any, stands disposed of. CHETNA BEHRANI /50 (ASHOK KUMAR JAIN),J