Samshad Begum and Others vs Rizwaan and Others

Manoj Kumar Gupta, J—The petitioners instituted Original Suit No. 225 of 2014 against the defendant-respondents for permanent prohibitory injunction, restraining them from interfering in the possession of the petitioners over the suit property, which is a residential house described at the foot of the plaint. A further injunction has been sought against the defendants restraining them from demolishing any portion of the suit property or from raising any new constructions. According to the plaint case, suit property was purchased by Munshi Sayeed Ahmad on 17.2.1972. However, defendant-respondent No. 3, who was his first wife was also shown as a co-vendee. According to the petitioners, the sale deed in respect of half share in favour of the defendant No. 3 was a benami transaction, the real owner being Munshi Sayeed Ahmad. It has further been pleaded that on 21.3.1983, Munshi Sayeed Ahmad divorced his first wife, defendant No. 3 and remarried, plaintiff No. 1. Plaintiff No. 2 to 8 are the issues born out of the wedlock between Munshi Sayeed Ahmad and plaintiff No. 1. It is alleged that the plaintiffs are in possession of the suit property but the defendants are wrongly interfering in the possession of the petitioners, and hence the suit.

The suit was contested by defendant-respondents contending that infact, suit property belonged to Mst. Hazzan Rashidan, mother of defendant No. 3. On account of marriage of defendant No. 3 with Munshi Sayeed Ahmad, she executed a sale deed dated 17.2.1972 in favour of her daughter and also included the name of Munshi Sayeed Ahmad being her husband. It was further claimed that infact it was the defendant No. 3 who was the real owner of the entire property. It was denied that any divorce had taken place between the third defendant and Munshi Sayeed Ahmad. It was further pleaded that he also married plaintiff No. 1 and on request of her husband, the third defendant permitted plaintiff No. 1 and her children to occupy the western portion of the house, which has a separate entrance. It was claimed that the eastern half portion of the suit property was transferred by the defendant No. 3 in favour of defendants 1 and 2 by registered sale deed dated 30.6.2014 and actual physical possession over the said portion was also delivered to them. The suit for injunction simplicitor has been filed by concealment of material facts.

In the suit, plaintiffs also filed an application for temporary injunction. The trial court by an order dated 30.9.2015 held that according to the sale deed dated 17.2.1972, the sale consideration was paid by defendant No. 3 and possession was also delivered to her. Thus, prima facie the real owner was defendant No. 3 and the name of her husband Munshi Sayeed Ahmad was included merely on account of the fact that he was her husband. The trial court held that the possession of Munshi Sayeed Ahmad has not been proved and thus, no injunction can be granted in favour of the plaintiffs, as they claim title only through Munshi Sayeed Ahmad. Consequently, the trial court rejected the application for temporary injunction.

Aggrieved by the said order, the petitioners preferred Misc. Appeal No. 44 of 2015, which has been allowed partly by the District Judge, Saharanpur by order dated 7.9.2015 and the defendants have been restrained from interfering in the possession of the petitioners over the western half portion of the suit property.

Learned counsel for the petitioners contended that even if the sale deed executed by the mother of the defendant No. 3 in her favour and late Munshi Sayeed Ahmad, is taken on its face value, it is evident that they were co-owners of the suit property. It is contended that after death of Munshi Sayeed Ahmad, petitioners, who are the second wife and sons and daughters born out of the second marriage being in possession of the suit property, were entitled to injunction, until the partition takes place. On the other hand, Sri Atul Dayal, learned counsel appearing on behalf of the defendants 1 and 2 submitted that the defendant No. 3 was found to be in possession of the suit property and since she had delivered possession of eastern portion of the suit property to defendants 1 and 2 and thus, they are entitled to protect their possession.

A perusal of the order of the lower appellate court dated 7.9.2015, reveals that the appellate court has accepted the claim of the petitioners for grant of injunction in respect of half share of the suit property by taking the conveyance deed dated 17.2.1972 on its face value. The appellate court has held that admittedly, thereby, the suit property had been conveyed jointly in favour of Munshi Sayeed Ahmad and his wife, the third defendant herein. It has observed that even before the death of Munshi Sayeed Ahmad on 31.1.2001, he had given divorce to the third defendant on 21.3.1983. In such circumstances, after his death, his share in the suit property has been inherited by the petitioners and not by defendant No. 3. The appellate court further held that since the defendants themselves admits that the plaintiffs are in possession over the western portion of the house and thus they are entitled to protect their possession in respect thereof. It has been further held that in case they are dispossessed from the suit property, it will cause irreparable loss and injury to them.

Concededly, despite the petitioners being fully aware of the nature of the conveyance deed dated 17.2.1972 as well as the sale deed dated 30.6.2014 executed by the defendant No. 3 in favour of defendants 1 and 2, they have not claimed any relief for cancellation of these sale deeds or for declaration that they are owners of the entire suit property. It is yet to be examined by the trial court as to whether the suit as framed is maintainable or is hit by Section 41 of the Specific Relief Act, 1963. Moreover, there is no evidence that the petitioners are in possession over the entire suit property. The lower appellate court, therefore, rightly refused to grant injunction to the petitioners in respect of the entire house and confined the same only in respect of the share of late Munshi Sayeed Ahmad. In the opinion of the Court, no illegality has been committed by the lower appellate court in refusing to grant injunction in respect of the entire house, so as to warrant interference in exercise of supervisory power under Article 227 of the Constitution.

The petition lacks merit and is dismissed.