Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 736 (PAT)

Zakir Hussain v. Naushad Ali

2007-04-12

REKHA KUMARI

body2007
Judgment 1. I.A. No. 1341/2005 at Flag 20 has been filed under Order 39 Rules 1 and 2, C.P.C. on behalf of respondents no. 9 and 10 praying therein to restrain the parties from transferring the suit land in any manner specially the self acquired land of the mother of these respondents. 2. It has been stated in the petition that these respondents and their mother Bibi Makhbulan are pardanasin and illiterate ladies, so they were defrauded by the plaintiffs. At the instance of plaintiff no. 1, his Advocates, on misrepresentation of facts obtained the L.T.I, of these respondents and filed written statement on their behalf supporting the case of the plaintiff and included the self acquired properties of Bibi Makhbulan in the suit. As against professional conduct of those lawyers, the respondents have already filed a petition for disciplinary action against them before the Bihar State Bar Council. 3. I.A. No. 101/2006 at Flag 21 has been filed on behalf of the appellants seeking permission to sell some portion of the suit lands specified in the petition at Flag D allotted to them in course of preparation of final decree. The above permission has been sought for legal necessities, such as marriage of a daughter and for treatment of one of the appellants Zakir Hussain, who has been referred to AllMs, New Delhi for further treatment. 4. I.A. No 1192/2006 has also been filed on behalf of respondents no. 1 to 3 for permission to sell certain portions of suit lands allotted to the share of these respondents in the final decree on the ground they are in urgent need of money for daughters marriage of respondent no. 1 and for treatment of respondent No. 3 Amna Khatoon who is aged about 86 years and has been referred to AIIMs, New Delhi for further treatment. 5. A rejoinder on behalf of the appellants at Flag 17 to I.A. No. 1341/2005 has been filed alleging therein that the father of respondents no. 9 and 10 died in the life time of his father Mauli Mian. So, these respondents and respondent no. 5 (since dead) cannot have any share in the property of Mauli Mian. 5. A rejoinder on behalf of the appellants at Flag 17 to I.A. No. 1341/2005 has been filed alleging therein that the father of respondents no. 9 and 10 died in the life time of his father Mauli Mian. So, these respondents and respondent no. 5 (since dead) cannot have any share in the property of Mauli Mian. They in their written statement have also supported the plaintiffs case and now by making allegations of fraud against the plaintiffs and their lawyer want to create a new case, and are claiming certain properties to be the self acquired property of their mother. 6. Vide counter affidavit dated 15.2.2006 at Flag 19, respondents no. 1 to 3 have opposed I.A. No. 101/2006 alleging therein that the petition is malafide, the grounds taken for permission to sell the properties are based on wrong facts of illness of Zakir Hussain and the marriage of the daughter of appellant no. 4 Md. Samsuddin. The prescription of the doctor fabricated and the daughter of respondent no. 4 has not attained the age of marriage. It has been further stated that the Advocate Commissioner has carved out 8 annas share in all the plots and the northern portions of each plot have been allotted to the respondents. The plot for which permission for sale has been sought for are valuable lands and the decree is under challenge. The petitioners-appellants have already sold considerable portion of the suit property by executing several sale deeds during the pendency of this appeal and misappropriated all the consideration amount. They also received Rs. 5.5 lacs from the Land Acquisition Officer, Hajipur in a L.A. Case in which these respondents admittedly had half share but the appellants have misappropriated the entire amount received from the lahds acquired. 7. Reply dated 5.7.2006 at Flag 18 as to the above counter affidavit has been filed on behalf of appellant no. 4 Md. Samsuddin alleging therein that the portion which the appellants intend to sell are not the subject matter of this appeal and also not in the share of the respondents, who have already sold their share without permission of this Court and they have been injuncted by this Court on several occasions, but they are still disposing of, further lands. Details of such sales have been given at page 3 to 8 of the reply. Details of such sales have been given at page 3 to 8 of the reply. So far the compensation amount in L.A. case is concerned, the learned L.A. court found that the appellants had full share in the suit property and the said order was affirmed in C.W.J.C. No. 2305/91. It has been further stated that prayer for selling some properties on the ground of daughters marriage filed by respondents has been earlier rejected. Further they recently sold the suit properties and the share of the appellants to one Sumitra Devi and Ekma Devi on 7.6.2006. A copy of the sale deed has been annexed as Annexure 3. 8. A counter reply dated 3.8.2006 at Flag 16 to the reply at Flag 18 has been filed by respondents no. 1 to 3 alleging, inter alia, that the appellants and the respondents both have sold portions of the suit lands due to misunderstanding, on account of earlier orders passed in this appeal. Most of the lands as have been referred to in the reply at Flag 18 have been sold by the appellants, but these respondents do not have details of those transactions. It was reiterated that the compensation amount was wrongly received by the appellants in collusion with the staff of the Land Acquisition Department and the writ petition is still pending for disposal. 9. A petition has been filed on behalf of the purchasers Jubaida Khatoon and Seikh Praveen regarding 1/3rd share of respondent no. 8 alleging therein that they have already been made party in F.A. No. 615/87, against the preliminary decree and F.A. No. 391/93 against the final decree vide order dated 18.11.1998 and 14.12.1998 passed on I.A. No. 6292/98 and 6293/98 respectively. Prayer in the said petition has been made for rejecting the prayer made in I.A. No. 1192/2006 (Flag 22). Counter affidavit to the above petition has also been filed on behalf of respondents no. 1 to 3. 10. Learned counsel for all the parties were heard on the abovementioned petitions, counter affidavits and the replies. 11. After perusal of the above petitions, counter affidavits, replies and hearing the parties it appears that the prayer on behalf of respondents no. 8, 9 and 10 is to restrain the parties from transferring/ alienating the suit property. 1 to 3. 10. Learned counsel for all the parties were heard on the abovementioned petitions, counter affidavits and the replies. 11. After perusal of the above petitions, counter affidavits, replies and hearing the parties it appears that the prayer on behalf of respondents no. 8, 9 and 10 is to restrain the parties from transferring/ alienating the suit property. Some of the appellants have prayed for permission to sell some of the properties on the ground of marriage of daughter of one of the appellants and treatment of another appellant. Similar prayer has been made by respondents no. 1 to 3 also seeking permission to sell certain properties for marriage of the daughter of one of the respondents as also for treatment of respondent no. 4. 12. While narrating the cases of respective parties (except respondent no. 9 and 10) it has already been noticed that several transactions during the pendency of this appeal have been made by both the parties i.e. appellants and respondents no. 1 to 3. Apart from this, an amount to the tune of 5.5 lac have also been received by the appellants earlier in a L.A. case. From the perusal of the order sheets of this appeal and the other appeals arising out of decrees passed in the same suit, it further appears that all the parties have been restrained time to time from alienating the suit properties during the pendency of this appeal. 13. In the above facts and circumstances of the case, particularly the fact that the parties have already entered into several transactions, I do not find it fit and proper to allow the appellants or respondents no. 1 to 3 to enter into further transactions. They should meet their expenses out of the funds they have already received by selling the suit properties up till now. Hence, both the I.As. i.e. 1192 and 101 of 2006 are rejected. 14. So far prayer made by respondents no. 9 and 10 are concerned, for injunction, according to them, they have filed cross objection in this appeal and in course of submissions learned counsel for the appellants and respondents also submitted that they do not intend to sell the particular land, i.e. lands of Khata No. 42 which is being claimed by these respondents (respondent nos. 9 and 10) to be the self acquired properties of their mother. 9 and 10) to be the self acquired properties of their mother. Hence, in view of submissions of the parties, there appears no necessity for passing any order of injunction restraining the parties from alienating the properties. 15. All the petitions thus stand disposed of being dismissed.