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2014 DIGILAW 409 (JK)

Taja Begum (Mst. ) v. Ab. Gani Khanday

2014-10-20

MOHAMMAD YAQOOB MIR

body2014
1. This appeal is directed against the order dated 22.05.2014 passed by the Court of Principal District Judge, Baramulla. 2. Appellant has filed suit for declaration and injunction alleging therein that she lost her parents at a very young age, so was taken care of by the elder brother of the respondent. Execution of gift deed has been allegedly manipulated which is shown to have been registered on 6th April, 1968 with respect to land measuring 18 kanals 06 marlas which was inherited by her from her mother. She has sought declaration of the said gift deed to be void ab initio on the ground of having been shown executed at a time and date when she was minor. Furthermore, there was no reason or cause for her to gift said land in favour of the respondent. She gained knowledge of the said gift deed when a suit was filed before the Court of Munsiff, Tangmarg by the respondent. It is also alleged that 06 kanals and 11 marlas were reverted back to her in terms of compromise deed dated 25.11.1971. 3. In the writ petition (OWP) No.1674/2012 was filed wherein directions were issued to SP, Vigilance Organization and SP, Crime Branch for initiating action. Preliminary report was submitted to the Deputy Commissioner Baramulla by the said organizations on 13.08.2013 confirming the said gift deed to be fake and forged as the fingerprints affixed thereon did not tally with the fingerprints of the appellant. Further, it is stated that the consent decree wherein reference to gift deed is made, is also doubtful. The suit property continues to be in her possession. That being so, the gift deed is a simple piece of paper. 4. An application for grant of temporary injunction along with suit as filed has been rejected by the learned trial court vide order impugned dated 22.05.2014. Aggrieved thereof, instant appeal has been filed. 5. Learned trial court, after detailed discussions, has observed that the appellant challenged the gift deed executed on 6th April, 1968 after a period of more than forty-five years contending that she had no knowledge about the same until suit was filed by the respondent before the Court of Munsiff, Tangmarg. Learned trial court has observed that the period of limitation would run from the date appellant gained knowledge. Learned trial court has observed that the period of limitation would run from the date appellant gained knowledge. The earlier suit before the Court of Munsiff, Tangmarg has been filed on 7th March, 1998. In terms of Article 62 of the Limitation Act, the appellant had three years' time from the date of acquiring knowledge for challenging the said gift deed. The suit on hand has been filed on 26th October, 2013 i.e. 15 years after acquiring knowledge. 6. The observation and opinion framed by the trial court owes its origin to the records. The question of limitation under such circumstances, no doubt, raises an issue involving mixed question of fact and law but, prima-facie, on such count it has been rightly observed that the appellant has no prima facie case. 7. Learned trial court has considered another aspect i.e. applicability of doctrine of res judicata noticing that there have been two rounds of litigation between the parties before presentation of present pending suit which have been finally disposed of and the compromise orders passed therein have not been questioned. 8. What had happened is that against the order of injunction passed in an application filed along with earlier suit, a miscellaneous appeal was filed and it is during pendency of that appeal, allegedly parties had entered into a compromise which compromise deed had been forwarded to the trial court but thereafter proceedings of the suit were not pursued, as a result whereof the suit was dismissed in default on 29.06.2000. On said basis learned trial court has observed that the order of dismissal of the suit would attract applicability of Section 11 of CPC as the said dismissal would operate as a bar for filing fresh suit in view of Order 9 Rule 9 of CPC. 9. The said observation and opinion recorded by the learned trial court is not correct because simply a compromise deed is alleged to have been submitted before the appellate court, which had been forwarded to the trial court. The trial court has not passed any order based on such compromise. Trial court has simply dismissed the suit for non-appearance. Records would show that the suit had been dismissed in default when both the parties had remained absent. 10. The trial court has not passed any order based on such compromise. Trial court has simply dismissed the suit for non-appearance. Records would show that the suit had been dismissed in default when both the parties had remained absent. 10. The order of dismissal of the earlier suit dated 29th June, 2000, is covered by Order 9 Rule 3 of CPC because both the parties on the date of dismissal were absent. In case dismissal order would fall within the ambit of Order 9 Rule 8, only then Order 9 Rule 9 would operate. The requirement of Rule 8 is that in case defendant would have appeared and suit dismissed, there would be preclusion for filing fresh suit, as is clear from Rule 9 but since dismissal would fall within the ambit of Order 9 Rule 3 of CPC, therefore, there would be no preclusion so as to attract operation of Order 9 Rule 9 of CPC. Furthermore, res judicata would apply only when there would have been determination of the issue inter se the parties. Earlier suit was not decided, there was no determination of the issues as is a requirement in terms of Section 11 of CPC. Such observations prima facie have been recorded in an arbitrary manner, as such, are unsustainable. 11. Learned trial court has further observed that the gift deed has been executed 30 years ago so it carries presumption in terms of provisions of Section 90 of the Evidence Act. The opinion framed is correct. The presumption, no doubt, is rebuttable but at this stage, prima facie, it will advance the cause of the respondent (defendant). 12. Prima-facie on the strength of documents/record and the law coupled with the observations made by the learned trial court except for the observations as above held to be unsustainable, appellant had no prima-facie case nor her case for grant of ad-interim relief satisfies the celebrated cardinal principles governing grant or otherwise of the interim injunction. Learned trial court has also rightly recorded that the observations made in the order disposing of the application for grant of temporary injunction shall not be taken as an expression on the ultimate outcome of the suit neither shall have bearing on the outcome of the main suit. 13. For the foregoing reasons and circumstances, no case is made out for interference except for the observations as above held to be unsustainable. 13. For the foregoing reasons and circumstances, no case is made out for interference except for the observations as above held to be unsustainable. Trial court shall proceed with the trial of the suit with promptitude by scheduling its proceedings fortnightly. Learned counsel for the parties shall ensure appearance of the parties before the trial court on 3rd November, 2014. Appeal shall, accordingly, stand disposed of. 14. Copy of the order be certified to the trial court. Trial court record be sent back forthwith so as to reach trial court well before the date fixed for appearance of the parties.