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2012 DIGILAW 308 (JK)

Mohd. Ayoub Khan & Ors. v. Aijaz Ahmad & Ors.

2012-06-02

HASNAIN MASSODI

body2012
1. The Civil First Miscellaneous Appeal on hand is directed against the order of Learned Additional District Judge, Baramulla dated 01.09.2009 in an application for grant of temporary injunction and appointment of receiver in a Civil Suit titled Mst. Hajra Begum (deceased) through her legal representatives v. Gulla Shah (deceased) through his legal representatives. 2. The background facts are as under:- Mst. Hajra (now deceased) on 20.07.1979, brought a Civil Suit against her brother, Gulla shah (also deceased) for a decree of partition, possession, mense profits and permanent prohibitory injunction. Alongside the suit the plaintiffs on 20.07.1979, filed two applications for grant of temporary injunction and appointment of receiver for the suit property. Though the plaintiff succeeded in getting an ad- interim order on the date applications were filed, yet the applications were not prosecuted, but allowed to proceed along with main suit. However, on 7th February 2009, the legal representatives of the plaintiff, brought on record after demise of the plaintiff, filed an application urging disposal of the two applications — filed on 20.07.1979 — for grant of temporary injunction and appointment of receiver for the suit property. 3. The plaintiff's case before the Trial Court was that late Ali Shah father of the original parties to the suit, left behind moveable and immoveable properties, detailed in the plaint; that the plaintiff was appointed as Dukhtar Khana-nisheen by her father and in terms of the custom governing the parties in the matter of inheritance, she was entitled to one half of the share of moveable and immoveable property left by her deceased father. The plaintiff complained that her brother -defendant in the suit despite repeated requests and demands avoided to partition the suit property and to put the plaintiff in possession of her one half share of the property, constraining the plaintiff to institute a suit for partition. The defendants are also said to have refused to account for the profits/usufructs generated by the suit property. The defendant in his written statement took the stand that the suit property was his self acquired property and late Ali Shah father of the parties on his death did not leave any moveable or immoveable property, liable for partition. The defendants are also said to have refused to account for the profits/usufructs generated by the suit property. The defendant in his written statement took the stand that the suit property was his self acquired property and late Ali Shah father of the parties on his death did not leave any moveable or immoveable property, liable for partition. The defendant also denied that the parties in the matter of inheritance were governed by a custom whereunder Dukhtar Khana-nisheen was to inherit the property left by her father like a son or that the plaintiff was at any point of time appointed as Dukhtar Khana-nisheen by her father. The other objections to the applications for temporary injunction and for appointment of receiver for the suit property were that the plaintiff was not in possession of any part of the suit property and that the suit was time barred. The defendant claimed that as he as owner of the suit property, had every right to deal with the property the way he liked and that the plaintiff had no right to ask for temporary injunction and appointment of receiver for the suit property. 4. Learned Trial Judge on scanning the material available on the file, found "no definite statements submitted by the plaintiffs in support of the application for appointment of receiver regarding the waste and damage to the suit property, which was sought to be partitioned" In view of rival claims to the suit property put forward by the parties, the learned Trial Judge avoided to frame any opinion as regards merits of the stand taken by the parties. However, learned Trial Judge took the view that the defendant being admittedly in possession of the suit property, it would not be convenient to dispossess a person who is there in his own right and being equally interested in preserving the property from damage or waste. 5. Learned Trial Judge worked on the assumption that as the defendant admittedly was not a stranger to the suit property but according to the plaintiff entitled to one half of the suit property, it would not be just and convenient to appoint a receiver for the suit property. The Trial Court proceeding on the said reasoning, also held the plaintiff not entitled to temporary injunction. The Trial Court proceeding on the said reasoning, also held the plaintiff not entitled to temporary injunction. Learned Trial Court opining that as any alienation of the suit property made by the defendant during pendence of the suit was, because of the doctrine of lis pendence subject to outcome of the suit, temporary injunction was not required to be granted to restrain the defendants from alienating the suit property or any part thereof till disposal of the suit. 6. The appellant — plaintiff before the Trial Court questions the order of the Trial Court dated 01.09.2009 on the grounds set out in the memorandum of appeal. 7. I have gone through the memorandum of appeal, record received from the Trial Court and have heard learned counsel for the parties at length. 8. The parties to the litigation admittedly are siblings and as descendants of late Ali Shah are entitled to inherit moveable and immoveable property left by him in accordance with their personal law. The original plaintiff can be excluded from such inheritance only after the defendant and his successors are able to prove that the moveable and immoveable property claimed by the original plaintiff to have been left by her father on his demise, was personal property of the defendant or that by operation of law, the plaintiff even if the property was found to have been left by her father, was disentitled from the property. In any case having regard to the relationship between the parties, the onus would lie on the defendant to prove the aforesaid defences to the plaintiff's suit. 9. Viewed thus, the plaintiff has a prima facie case in her favour to be dislodged by the defendant during the trial of the main suit. However, there is no scope for disagreement with learned Trial Judge that the receiver cannot be appointed to dispossess a person who as per the admitted case of the plaintiff is in such possession. Such recourse may be available where there is a specific averment of waste, plunder and pilferage against the defendant supported by the material placed on the file. In the present case as pointed out by learned Trial Judge, there was no such averment. The trial Judge was right in its approach that as half of the property as per the admitted case of the plaintiff would fall to the share of the defendant. In the present case as pointed out by learned Trial Judge, there was no such averment. The trial Judge was right in its approach that as half of the property as per the admitted case of the plaintiff would fall to the share of the defendant. The defendant was to be taken equally interested in preserving the property. The appointment of receiver was, therefore, rightly declined by the trial Court and the order impugned to the extent does not call for any interference. 10. However, learned trial Judge ought to have considered, binding down the defendant to maintain accounts of the usufructs/produce of the suit property and submit such account after periodical intervals. Learned Trial Judge again was not right in rejecting the application for grant of temporary injunction, restraining the respondents from alienating the suit property on the ground that any third party interests as may be created would be subject to outcome of the suit. 11. The original plaintiff as already stated was admittedly a legal heir of deceased Ali Shah and as already pointed out would be entitled to inherit the estate left by her father Ali Shah, alongside her brother — defendant in the suit. The plaintiff was no stranger to the suit property and her relation with the defendant and the fact that both were descendants of late Ali Shah, enabled her to make out a prima facie case for partition and possession. 12. In view of the admitted possession of the parties, the onus as stated above to prove that the plaintiff was disentitled from inheriting from her father was a heavy one and placed on the defendant. The learned Trial Judge was not right in concluding that the plaintiff had not made out a prima facie case in her favour. It may be pointed out that if the parties of the suit would lead no evidence in support of their respective stands, the plaintiff was bound to succeed in the suit. What more could have been a reason for learned trial Judge to hold that the plaintiff had a strong prima facie case in her favour. It may be pointed out that if the parties of the suit would lead no evidence in support of their respective stands, the plaintiff was bound to succeed in the suit. What more could have been a reason for learned trial Judge to hold that the plaintiff had a strong prima facie case in her favour. The plaintiff claimed to be a co-sharer of the suit property and only because she was not in actual physical possession of any part of the suit property ought to not have led the trial Judge to conclude that the balance of convenience tilted against her and that there was no likelihood her being visited irreparable injury, in the event grant of temporary injunction in her favour, was refused. The plaintiff was in a position to prove existence of three cardinals of principles, governing exercise of discretion under order 39 CPC in her favour. She was not to be left at the mercy of the doctrine of lis pendence and refused indulgence under order 39 CPC. Section 54 transfer of property Act, order 39 CPC are two different provisions and deal with different situations. There is no settled legal principle that temporary injunction restraining the opposite party from alienating, transferring or dealing with the suit property till disposal of the suit should be declined in all cases as such transaction is subject to the doctrine of lis pendence. The plaintiff notwithstanding the doctrine of lis pendence may be forced to cut swords with the strangers who may come up with a number of defences to plead that the doctrine was not applicable in their cases. However, in the circumstances Section 54 Transfer of Property Act, does not make order 39 CPC in operative where the plaintiff otherwise is in a position to make out a case for grant of temporary injunction as is the situation in the case in hand. 13. For the reasons discussed above, the Civil First Miscellaneous Appeal is disposed of as under:- 1. The defendants/respondents shall maintain accounts of produce/usufructs/income generated by the suit property and submit accounts after interval of six months i.e. 1st week of June and 1st week of December every year till disposal of the suit. 2. The defendants/respondents shall not alienate, transfer or otherwise dispose of any part of the suit property without permission of the Court. The defendants/respondents shall maintain accounts of produce/usufructs/income generated by the suit property and submit accounts after interval of six months i.e. 1st week of June and 1st week of December every year till disposal of the suit. 2. The defendants/respondents shall not alienate, transfer or otherwise dispose of any part of the suit property without permission of the Court. The trial Court is expected to be alive to the fact that the matter is awaiting disposal for last thirty three (33) years and is required to be expeditiously dealt with. Viewed thus, the Trial Court shall make every effort to finally dispose of the suit within six months from the date receipt of the order. The Trial Court having regard to the relation between the parties shall also make use of all tools under Alternate Dispute Resolution mechanism to help the parties to amicably settle the matter. Disposed of.