Mohiddin Khan vs K. Abdulla Khan

Budihal R.B., J.—1. Heard the learned counsel appearing for the writ petitioner and also the learned counsel appearing for the respondent herein. Learned counsel for the writ petitioner made a submission that father who is the respondent in this writ petition was the owner of the suit schedule property.

The brief facts leading to the case of the plaintiff to file suit before trial court is that respondent plaintiff filed suit in O.S. No. 42/14 seeking cancellation of Gift deed dated 10.11.2004 executed in favour of petitioner � defendant and he has also sought for other reliefs and along with the suit he has filed application I.A. No. 1 seeking temporary injunction from alienating the property bearing new assessment No. 277/A/266/A. After hearing the said application, the same was allowed and the trial court granted the interim injunction on 5.11.2014 as against the writ petitioner herein. The further facts also go to show that the writ petitioner herein preferred M.A. No. 19/14 before the II Additional District and Sessions Judge, Tumkur and the said Appellate Court dismissed the appeal by its order dated 24.1.2015 and the order passed by the trial court was confirmed. Aggrieved by the said order of the courts below, the writ petitioner is before this Court.

Learned counsel appearing for the writ petitioner during the course of the argument made submission that though the gift deed was in the year 2004, but the suit was filed in the year 2014 i.e., after lapse of 10 years. Learned counsel submitted that the suit is barred by law of limitation. Hence it is his main contention that the main suit itself is barred by law of limitation, the trial court ought not to have considered interim application for grant of temporary order in favour of the writ petitioner. The learned counsel made submission that being absolute owner under the gift deed, the writ petitioner entered into agreement of sale with the intending purchaser. Out of the money received from the intending purchaser under the agreement, he has paid the amount to his family members and to his father also by way of cheque and cash. Hence it is his contention that under these circumstances, the trial court is not correct in granting an interim order not to alienate the suit schedule property so also the first Appellate Court in confirming injunction order granted by the trial court. Hence the learned counsel submitted to set aside the orders of the courts below by allowing the Writ Petition.

Per contra learned counsel appearing for the respondent/plaintiff during the course of the argument made submission that the transaction of gift though it is claimed by the defendant but the father has filed the suit seeking cancellation of the Gift deed on the ground as mentioned in the suit. He also made the submission that during the pendency of the said suit father also made application under Order 39 Rules 1 and 2 of CPC seeking injunction order to restrain the writ petitioner herein from alienating the suit schedule property. Counsel submitted that said application was rightly allowed by the trial court and the writ petitioner was restrained from alienating the same. He also made submission that the said order and its legality and validity has been challenged before the First Appellate Court by the writ petitioner herein and the said miscellaneous appeal was also dismissed by District & Sessions Judge, Tumakuru confirming the order passed by the trial court. Hence he made submission that when there are concurrent findings of the courts below, in this Writ Petition wherein scope is limited, it is not permissible for the writ petitioner to claim such reliefs and hence he submitted that no merit in writ petition and the same is to be dismissed.

I have perused the grounds urged in the Writ Petition and also the orders passed by the courts below i.e., the trial court as well as First Appellate Court on the application filed by the respondent/plaintiff. It is no doubt true that there is Gift deed in favour of the writ petitioner herein but he has filed a suit seeking cancellation of the Gift deed and said suit is pending before the trial court. An application under Order 39 Rules 1 and 2 of CPC in I.A.I. was filed before the trial court. The trial court considering that if the injunction order restraining the defendant from alienating suit property is not passed then it leads to multiplicity of the proceedings during the pendency of the suit. Therefore the trial court granted the injunction order. Even if there is an issue with regard to limitation aspect, it cannot be said that the said issue is also a pure question of law and limitation is a mixed question of law and facts which has to be ascertained by the trial court and has to be considered at the time of considering the main suit itself. Keeping this point in mind, the trial court allowed the application and granted interim order. The First Appellate Court also re-appreciated the materials placed on record and after that by assigning cogent reasons the first Appellate Court passed the present order. Therefore when there are concurrent findings of the courts below with regard to factual aspect of the matter now petitioner in this Writ Petition has not made out a case to allow the petition and set aside the order passed by the courts below. Accordingly, I do not find any merit in the Writ Petition.

Hence the Writ Petition is rejected. However as requested by the learned counsel for the writ petitioner in view of the pendency of the matter since 2014, the trial court is hereby directed to take up the matter on priority basis and dispose of the case as early as possible.