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Rajasthan High Court · body

2016 DIGILAW 160 (RAJ)

Asmat Nazeer v. Mohd. Umar

2016-01-27

MOHAMMAD RAFIQ

body2016
JUDGMENT : Mohammad Rafiq, J. This appeal has been filed by the appellants-defendant No. 1 and 5 to 10 assailing the order dated 10.02.2014 passed by Additional District Judge, Tonk (for short ‘the trial court’) whereby application filed by Respondent No.1-plaintiff seeking temporary injunction has been allowed. Briefly stated the facts of the case are that the Respondent No.1/plaintiff (hereinafter referred to as ‘the plaintiff’) filed a suit for cancellation of sale deed dated 09.02.1989 and permanent injunction against the defendants-appellants, wherein it was pleaded that the plaintiff and defendant No. 3 and 4 are the sons of Late Mohd. Shafeeq. Mohd. Shakeel was also son of Mohd. Shafeeq. The defendant No. 2 is the widow and defendant No. 5 to 10 are children of Mohd. Shafeeq. Late Mohd. Shafeeq have three houses situated in Tonk, The plaintiffs pleaded that Shakeela building, which is situated in Karigaron ka Mohalla, was given to him by way of will executed by his father Mohd Shafeeq on 25.08.1990. Thereafter, the plot, which is situated in west side of Shakeela building was also orally gifted (Hiba) to him on 21.04.1992 in presence of the witnesses. The demarcation of the land was also mentioned in the plaint. The defendant No, 4 Raeis Khan filed a suit for division before the District and Session Judge Tonk against the legal representatives of Mohd. Shafeeq, which is still pending before the court. Late Mohd. Shakeel and defendant No. 1 prepared a false sale deed in respect of disputed plot, which is situated in west side of Shakeela building on 09.02.1989. Mohd. Shafeeq did not execute any sale deed in favour of defendant No. 1. Mohd. Raeis filed a suit no. 38/2011 before the Additional District Judge (Fast Track), Tonk for division of above mentioned disputed plot wherein the defendant No. 1 filed the written statement and mentioned in respect of the sale deed dated 09.02.1989, then the fact towards the sale deed came in knowledge of plaintiff. 2. The defendant No. 1 and 5 to 10-appellants filed written statement and denied the contents of the plaint and stated that the Mohd. Shafeeq sold the land to defendant No. 1 for consideration of Rs.5,000/- on 09.02.1989 and handed over the possession of the land. Mohd. Shafeeq put his signatures in Urdu and Hindi languages on the sale deed. 2. The defendant No. 1 and 5 to 10-appellants filed written statement and denied the contents of the plaint and stated that the Mohd. Shafeeq sold the land to defendant No. 1 for consideration of Rs.5,000/- on 09.02.1989 and handed over the possession of the land. Mohd. Shafeeq put his signatures in Urdu and Hindi languages on the sale deed. The sale deed was drafted by Advocate Abdul Kadir and he also put his signature on the sale deed. The defendant no. 1 has the possession on the land since the date of sale deed 09.02.1989. The plaintiff Mohd. Umar executed a registered gift (Hliba) on dated 19.11.2004 in favour of his wife for Shakila building on the basis of the will dated 25.08.1990, which was executed by Mohd. Shafeeq. It is mentioned in the map which is enclosed with the registered gift (Hiba) dated 19.11.2004 that the disputed land belongs to his father Mohd. Shafeeq. The map did not disclose that the land belongs to the plaintiff. It was further pleaded that the Mohd. Raeis also filed a suit no. 26/2005 (Mohd. Raeis v. Mohd. Shakeel) wherein the disputed property was not shown with the plaintiff. It was further pleaded that the Municipality also had given permission to Defendant no. 1 for construction on disputed land on 26.01.2002. Mohd. Raeis also filed a suit no. 38/2011 (Mohd. Raeis v. Mohd. Shakeel) wherein the defendant no. 3 Mohd. Aarif filed a reply on 21.07.2011 and admitted that his father Late Mohd. Shafeeq sold the land to defendant No. 1. Mohd. Raeis defendant No. 4 filed an application for withdrawal of suit no. 38/ 2011, wherein it was mentioned that his father Late Mohd. Shafeeq sold the land to defendant no. 1 for consideration of Rs.5,000/- on 09.02.1989. It was further pleaded that the plaintiff lodged an F.I.R. No. 372/2012 for the offence under Sections 420, 468 I.P.C. against the defendant No.1 and other persons in respect of the sale deed dated 09.02.1989, wherein the police during the investigation found that the plaintiff lodged the false F.I.R. and submitted the F.R. before the concerning Court. 3. The trial court, after the hearing the parties, allowed application for temporary injunction filed by the Respondent No.1-plaintiff and directed both the parties to maintain the status quo in respect of disputed plot vide order dated 10.02.2014. 3. The trial court, after the hearing the parties, allowed application for temporary injunction filed by the Respondent No.1-plaintiff and directed both the parties to maintain the status quo in respect of disputed plot vide order dated 10.02.2014. Hence, the appellants-Defendants No. 1 and 5 to 10 have preferred instant appeal. 4. Learned counsel for the appellants argued that the trial court failed to consider the material available on record. It is submitted that Mohd. Shafeeq sold the disputed plot to the defendant No. 1 for consideration of Rs.5,000/- by way of registered sale deed on 09.02.1989. Mohd. Shafeeq put his signatures in Urdu and Hindi languages on every page of the sale deed. The sale deed was drafted by the Advocate Mohd. Kadir. Mohd. Shafeeq handed over the possession of the land to defendant No. 1 and thereafter, she constructed a boundary wall on the land and she has the possession as owner since the date of the execution of sale deed. Mohd. Shafeeq did not challenge the execution of sale deed during his lifetime. Mohd. Shafeeq died on 20.01.1995. Thereafter, the plaintiff filed a suit for cancellation of sale deed in the year 2013. It is submitted that the sale deed executed in favour of defendant No. 1 on 09.02.1989 and plaintiff filed a suit for cancellation of sale deed on 27.02.2013. The suit was filed after laps of 24 years from the execution of the sale deed. The plaintiff was knowing about the sale deed dated 09.02.1989 along with the other brothers defendant No. 3 and 4. The plaintiff filed a suit after the death of Mohd. Shakeel, who is the brother of plaintiff and husband of defendant No. 1 for harassment of the legal representatives of Mohd. Shakeel. Therefore, the impugned order is liable to be quashed and set aside. 5. Learned counsel for the appellants further argued that the plaintiff pleaded in the plaint that his father Mohd. Shfeeq gave Shakeela building to him on dated 25.08.1990 by way of will and thereafter, he orally gifted (Hiba) the disputed land to him on 21.04.1992 in presence of the witnesses. It is submitted that the plaintiff executed a registered gift deed on 19.11.2004 in favour of his wife in respect of Shakeela Building on the basis of the will dated 25.08.1990. It is submitted that the plaintiff executed a registered gift deed on 19.11.2004 in favour of his wife in respect of Shakeela Building on the basis of the will dated 25.08.1990. The map which was attached with the registered gift deed dated 19.11.2004 shows that the disputed land belongs to Mohd. Shafeeq. It is clear from fact that if Mohd. Shafeeq had gifted the disputed land to the plaintiff on 21.04.1992 then why he mentioned in the map attached with the registered gift dated 19.11.2004 that the disputed land belongs to Mohd. Shafeeq. Thus, it is clear that the plaintiff filed a false suit for harassment of defendants No. 1 and 5 to 10. It is argued that defendant No. 4, Mohd. Raeis filed a suit no. 2/1999 for division of the property (except the disputed land) of Mohd. Shafeeq against the other legal representatives. The plaintiff, defendant No. 3, Mohd. Aarif and Mohd. Shakeel, husband of defendant No. 1, filed the reply in that suit but, they did not claim division of the disputed land. The trial court partially decreed that suit, but did not accept the execution of will dated 25.08,1990 in favour of plaintiff. It is, thus, clear that the plaintiff and the other defendants had full knowledge about the execution of sale deed dated 09.02.1989 in favour of the defendant No. 1. Defendant no. 4 Mohd. Raeis filed another suit no. 38/2011 for division and temporary injunction in respect of the disputed plot on 20.01.2010 against the legal representatives of Mohd. Shfeeq. In the aforesaid suit the defendant no. 3 Mohd. Aarif filed written statement wherein it was admitted that the disputed plot was sold by his father Mohd. Shafeeq to defendant no. 1 by way of registered sale deed on 09.02.1989. In aforesaid suit, Mohd. Raeis, who was the plaintiff, filed an application to withdraw the suit on the ground that his father Mohd. Shafeeq sold the disputed plot to defendant no. 1 by way of registered sale deed on 09.02.1989. In the aforesaid suit, Mohd. Umar also filed an application under Order 2, Rule 2 CPC, but he did not file the written statement and did not take plea that the disputed plot was orally gifted by Mohd. Shafeeq in his favour. Every legal representative of Mohd. Shafeeq Khan had knowledge that the defendant no. In the aforesaid suit, Mohd. Umar also filed an application under Order 2, Rule 2 CPC, but he did not file the written statement and did not take plea that the disputed plot was orally gifted by Mohd. Shafeeq in his favour. Every legal representative of Mohd. Shafeeq Khan had knowledge that the defendant no. 1 is the sole owner of the disputed plot and she had the possession on it. Plaintiff Mohd. Umar lodged an F.I.R. against the defendant no. 1 and other persons for the offence under Sections 420 and 468 I.P.C. in respect of the execution of sale deed dated 09.02.1989. The police started investigation and recorded statement of the witnesses and thereafter found that the defendant no. 1 has the possession on the disputed plot since the execution of the sale deed dated 09.02.1989 and submitted F.R. The police also mentioned in the F.R. that the plaintiff Mohd. Umar lodged a false F.I.R. to obtain the disputed plot. It is further argued that the Mohd. Shafeeq executed a registered sale deed in favour of defendant No.1 on 09.02.1989. Thereafter, the defendant no. 2 filed an application for construction on the disputed plot before the Municipality. The Municipality gave permission for construction on 26.01.2002. Learned counsel for the appellants submitted that defendant no.1 has possession on the disputed plot since 09.02.1989. Sons of Mehmood Hussain reside in west side of the disputed plot and opened an illegal door to set up a way. So, the dispute arose between the sons of Mehmood Hussain and defendant no. 1. Thereafter, a compromise took place between the parties on 18.10.2004 and 50 members of the locality put their signatures on compromise. Thus, it is clear that the defendant no. 1 has the possession on the disputed plot since 09.02.1989. 6. Learned counsel for the Respondent No.1-plaintiff opposed the appeal and submitted that the trial court has rightly required the parties to maintain status quo with regard to the disputed land because it found the prima facie case in favour of the Respondent No.1-plaintiff. The disputed land was gifted (Hiba) to the Respondent No.1-plaintiff by his father Mohd. Shafeeq on 21.04.1992 in presence of two witnesses Mohd. Anees and Tofiq. The plaintiff was making use of the land in dispute. The disputed land was gifted (Hiba) to the Respondent No.1-plaintiff by his father Mohd. Shafeeq on 21.04.1992 in presence of two witnesses Mohd. Anees and Tofiq. The plaintiff was making use of the land in dispute. On the eastern side was Shakeela Building and on the western side was house of Mehmood Hussain and a well and on northern side there was Madarsa and on southern side there was public way. It is argued that while the plaintiff claimed his possession on the dispute land, the defendants were also claiming their possession, therefore, this issue can only be decided only when the evidence is adduced. Learned counsel argued that the respondent No.1-plaintiff had also filed an FIR against the defendants about the sale deed dated 09.02.1989 allegedly executed by his father Mohd. Shafeeq in favour of the defendants. The sale deed was got prepared by cheating and forgery. It is therefore, prayed that the appeal be dismissed. I have heard learned counsel for the parties and perused the material on record. 7. The appellants-defendants have placed on record various documents with Application No. 23375/2014 under Order 41, Rule 27 CPC. These documents indicate that initially a suit was filed by Mohd. Raeis Khan, one of the sons of Mohd. Shafeeq and brother of the plaintiff-respondent. In that suit, Mohd. Arif, yet another son of Mohd. Shafeeq had filed written statement and admitted that the disputed land was sold by his father, Mohd. Shafeeq to the defendant Smt. Asmat Nazeer, during his lifetime by registered sale deed. Smt. Asmat Nazeer in the written statement filed in that suit categorically maintained that she has purchased this land by registered sale deed from Mohd. Shafeeq, father of the plaintiff. Mohd. Raeis Khan, eventually withdrew that suit by filing application before the trial court on 25.10.2012. Copy of the sale deed executed by Mohd. Shafeeq in favour of defendant Smt. Asmat Nazeer has also been produced on record. Shafeeq, father of the plaintiff. Mohd. Raeis Khan, eventually withdrew that suit by filing application before the trial court on 25.10.2012. Copy of the sale deed executed by Mohd. Shafeeq in favour of defendant Smt. Asmat Nazeer has also been produced on record. An agreement of compromise executed between Aarif Mehmood, Mujjafar Hussain, Mukhtar Ahmed, Smt. Aarifa Begum, sons and widow of Hamid Hussain and Javed Hussain; Sajjad Hussain, Shahnawaj Hussain, Smt. Nargis Phatma, son and widow of Jahid Hussain; Rashid Hussain and Smt. Asmat Nazeer has also been placed on record wherein they have acknowledged the disputed plot to be that of the defendant-appellant and they have agreed not to pass through the way which was going through the disputed plot, to access Shakeela Building. While, there is registered sale deed in favour of the defendant-appellant by Mohd. Shafeeq dated 09.02.1989, which was drafted by Advocate Abdul Kadir and possession of the disputed land has been handed over to the defendant-appellant. The plaintiff-Respondent No. 1 filed a suit for cancellation of sale deed after lapse of 24 years on 27.02.2013 whereas earlier, about the same land, there was litigation between the parties. In the present suit, the plaintiff-Respondent No.1 has come out with a very week plea that his father orally gifted (Hiba) disputed land to him on 21.04.1992, that too three years after execution of the sale deed dated 09.02.1989. The kind of case set up by Respondent No. 1-plaintiff cannot be said to make out prima facie case in his favour rather it shows that case of the defendants-appellants stands on better footings and balance of convenience also lies in their favour. The impugned, therefore, cannot be sustained. In the result, the appeal is partly allowed. Impugned order dated 10.02.2014 passed by the trial court is modified in the terms that the defendants-appellants shall be at liberty to carry on any construction or repair work, however, they shall not alienate the property in dispute in favour of any third party. Stay application stands disposed of.