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2008 DIGILAW 472 (JK)

Durga Dass v. Ganesh Dutt

2008-12-04

SUNIL HALI

body2008
1. The respondent-1 has filed suit for declaration that the gift deed dated 5-10-1962 registered by the Sub Registrar, Samba, executed by Kukan son of Mathra (deceased) in favour of the appellant with respect to the land comprising Khasra Nos., the detail of which is given in the appeal is null and void . His contention in the suit is that he has common ancestor with defendant -5 and the ancestral property is jointly owned by them. The said Kukan has executed a gift deed in favour of petitioner--defendant-1 on 5-10-1962. He states that being ancestral and joint undivided property, the same could not have been gifted by the said Kukan . He has sought cancellation of the gift deed dated 5-10-1962 and also a direction restraining defendant -1 from receiving any compensation with regard to the land requisitioned by the concerned authority. Defendant -1 on the other hand, took a plea that during his life time, Kukan and his brother Dina Nath had divided the property. The property which has fallen to the share of Kukan was gifted to defendant -1 on 5-10-1962. Ever since the defendants were in possession of the property to exclusion of the plaintiff and other persons claiming it as coparcenery and ancestral property. The other contention raised by the defendant-appellant is that the plaintiff/ respondent had no right to question the gift deed, which was executed in the year 1962, when admittedly he was not born on that date. Before he could acquire any right in the said property, it was already transferred by a gift deed to the present appellant. 2. An application under order 39 Rules 1 and 2 was also filed before the court below and the court below vide its order dated 24-12-2002 had directed that 1/4th compensation be not distributed to the appellant herein. It is this order, which is the subject matter of challenge in this appeal. 3. I have heard the learned counsel for the parties. 4. The respondents 2 to 5 were served but did not appear despite service and accordingly vide order dated 19-11-2003, the said respondents have been set ex parte . Respondent -1 was represented by Mr. C. M. Gupta, Advocate. 5. It is admitted by the plaintiff that the defendant is in possession of the property. The appellant is also receiving rent from the authorities regarding the property, which has been acquired. Respondent -1 was represented by Mr. C. M. Gupta, Advocate. 5. It is admitted by the plaintiff that the defendant is in possession of the property. The appellant is also receiving rent from the authorities regarding the property, which has been acquired. It is also not in dispute that that the gift deed has been challenged after more than thirty years. The natural father of the plaintiff is also alive and has been arrayed as defendant in the suit. The locus of the plaintiff to challenge this gift deed would be the subject matter of the final trial but the fact of the matter is that the appellant is undoubtedly in possession of the property on the basis of gift deed. For the purpose of granting injunction, prima facie case is required to be shown by the parties claiming injunction. The plaintiff/respondent has not been able to show anything, which entitles him to seek an order of injunction much less prima facie case. On his own admission, he states that the appellant is in possession of the property on the basis of gift deed. It cannot be at this stage concluded that the possession of the defendant has no source or title. 6. I do not feel that the order passed by the trial court is justified. The appellant has been receiving rent from the authority to the exclusion of the plaintiff and to his knowledge. I accordingly set aside the order of the trial court whereby 1/4th compensation has been withheld. I direct that the compensation be paid to the appellant, subject to furnishing of security and surety that he will pay this amount in case the plaintiff succeeds in the suit as and when directed by the court. 7. The appeal is accordingly allowed. Let file be sent to the trial court. Parties to appear before the trial court on 24-12-2008.