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2017 DIGILAW 290 (GAU)

GULENA BEGUM v. AKHTAR AHMED

2017-03-07

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. A.B. Choudhury, learned Senior counsel assisted by Mr. M.A. Choudhury, learned counsel for the petitioner. Also heard Mr. A. Biswas, learned counsel appearing for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 13.06.2016 passed by the learned Civil Judge No. 3, Kamrup (M), Guwahati in Misc.(J) Case No. 383/2015 arising out of the T.S. No. 351/2015. By the said order the learned Trial Court had directed the respondents No. 3 to 6 herein to deposit their respective monthly rent payable to the petitioners in the official bank account of the Court of Civil Judge No. 1, Kamrup (M), Guwahati. 3. Owing to the nature of challenge made in the present application, it is found that issuance of notice to the respondents No.3 to 6 is not necessary as they are not a necessary party in the present matter and, as such, they will not be prejudiced in any manner by any order that may be passed in their absence. Hence, notice upon them is dispensed with. 4. The respondents No 1 and 2 in the present application are the plaintiffs in T.S. No. 351/2015. The suit was filed for declaration, rendition of account and for partition. In the said suit, the prayer was made for declaration that the respondents No. 1 and 2 herein are the co-owners of the property described in the Schedule-A along with the two stored RCC building standing thereon and for a further declaration that the respondents No. 1 and 2 are each entitled to 2/3rd share (residual) of the said Schedule-A property along with the two stored RCC building standing thereon as well as for relief of partition and for permanent injunction. 5. Together with the suit, a separate petition was filed under Section 151 of the CPC which was registered as Misc. (J) Case No. 383/2015. In the said application it was stated that the property in dispute was the self required property of Late Riyazuddin Ahmed and after his death the said property had jointly devolved on the petitioners as well as respondents No. 1 and 2 herein. (J) Case No. 383/2015. In the said application it was stated that the property in dispute was the self required property of Late Riyazuddin Ahmed and after his death the said property had jointly devolved on the petitioners as well as respondents No. 1 and 2 herein. The tenants in the said building are the tenants- in- common under the petitioners as well as respondent No. 1 and 2 herein and not only the parties were entitled to share in accordance with the Hanifi Law of Inheritance under the Mohammedan Personal Law, but also the monthly rent which would accrue in respect of the said property is also required to be shared and/or apportioned in accordance with the said personal law. In the said application, it was alleged that till the month of March, 2015, the rent was being shared by all the legal heirs of Late Riyazuddin Ahmed. However, after that since the month of April, 2016, the respondents No. 1 and 2 herein had deprived of their share from the rent which was being collected by the petitioners from the respondents No. 3 to 6. The respondents No. 1 and 2, accordingly, prayed to restrain the petitioners and their men, agents and/or any one claiming for realizing and/or collecting the monthly rent and/or any money from the respondents No. 3 to 6 herein with a further prayer to direct the respondents No. 3 to 6 herein to deposit their respective monthly rent before the Court. On the basis of the said prayer made in Misc. (J) Case No. 383/2015, the leaned Civil Judge No. 3 by passing the impugned order dated 13.06.2016, inter-alia, directed the respondents No. 3 to 6 herein to deposit their monthly rents henceforth before the Court by way of demand draft/ banker cheques in favour of Civil Judge No. 1, Kamrup (M), Guwahati in the SBI, Panbazar, Guwahati until further orders. The aforesaid order is challenged in this present revision. The aforesaid order is challenged in this present revision. The respondents No. 1 and 2 have filed their affidavit-in-opposition and have taken a stand that prior to the institution of the said suit, the respondents No. 1 and 2 had not aware about the extent of rent being collected by the petitioners as the same was not correctly disclosed by the petitioners and that only after such rent came to be deposited in court, they have now come to know that the rent which is now been deposited is in excess what was being hitherto projected by the petitioners before the suit was filed. In their affidavit-in-opposition, the respondents No. 1 and 2 have narrated their side of the case and have also disclosed their current financial status, the occupation which the respondents No. 1 and 2 are now doing and the alleged deprivation that they are suffering from the hands of the petitioners. 6. The petitioners, by filing an additional affidavit today have brought on record some additional documents to project that there were certain adjustments to be made in respect of the monthly rent to be shared with the respondent No. 2. 7. The learned Senior counsel appearing for the petitioners have projected as the monthly rents are now been deposited before the Court, they are facing serious financial problems and moreover, if the said order is allowed to stand, it may cause a change in the status of the relationship of the petitioners as landlord and respondents No. 3 to 6 as tenant. It is projected that the petitioner No. 1 is the mother of the petitioners No. 2 to 5 and respondent No. 1 and 2 and Proforma respondent No. 7 and that although she unconnected with the dispute between the siblings, by the sudden stopping of the rent, as she was solely dependent on her share of the monthly rent, her meager resources has dried up and being an old lady without any other source of income, she is the worst sufferer. 8. 8. Per-contra, the learned counsel appearing for the respondents No. 1 and 2 has submitted that as the right to the property described in Schedule-A of the plaint follows from the predecessor-in- interest of the parties, namely, Late Riyazuddin Ahmed, de-hors any right claimed to the contrary by any party, the question of inheritance would only be governed by the Hanifi Law of Inheritance and therefore, even if the parties to the present may like it or not, the law in respect of inheritance will have to be strictly applied in the present dispute in hand. It is further submitted that it would be evident from the impugned order dated 13.06.2016 that the learned Court had passed the said order only after arriving at a conclusion that as it was not known what was the actual amount being collected by the rent from the tenants it was for the interest of justice that the petitioners as well as the Proforma respondent No. 7 be restrained from the collecting the rent from the tenants by directing the respondents No. 3 to 6 to deposit the rent in the account of the learned Court and moreover, it is also stated therein that unless the matter is dispute gets resolve finally, at present, each of the legal heirs of Late Riyazuddin Ahmed were entitled to get the due share of rent. 9. Although various other grounds of challenge against the impugned order was mentioned in the revision and also urged by the learned counsel for the petitioners and countered by the learned counsel for the respondent, in view of the nature of order which is proposed to be passed, this court is not inclined to enter into all those aspects or to adjudicate the same as this stage, because of anything is decided on merit, the parties to this lis would be deprived of arguing their respective case before the learned Trial Court as well in appeal, if any party is aggrieved thereby. 10. However, it is found that if the monthly rent continues to be deposited before the learned Trial Court, the money would be blocked till the entire matter is finally adjudicated. 10. However, it is found that if the monthly rent continues to be deposited before the learned Trial Court, the money would be blocked till the entire matter is finally adjudicated. From the statements made by both the parties, i.e. petitioners and respondents No.1 and 2, it appears that all the family members i.e. petitioners, respondents No. 1 and 2 and Proforma respondent No. 7 are all people of modest means. It is not disputed that the petitioner No.1 is an old lady without no other source of livelihood and it is also not disputed that the respondent No. 1 and 2 are Auto- Rikshaw drivers and none of the other petitioners has any other known permanent source of livelihood. Moreover, it is not in dispute that at present the petitioners No. 3 and 4 are paying the common electricity bills, municipal tax, maintenance, municipal tax on property and land revenue. Under the circumstances, this Court is of the view that the parties be relegated back to the court of learned Civil Judge No. 3, Kamrup (M), Guwahati with a direction to hear the parties afresh and to take into the consideration the relevant provisions of Hanifi Law of Inheritance to direct an ad-interim appropriation or sharing of the rent in accordance with the said personal law of the parties. It would be open to the parties to file appropriate petition before the learned trial court to apprise the court as to the estimated cost incurred on that account common electricity bills, municipal tax, maintenance, municipal tax on property and land revenue so that the learned Trial Court would make provisions and or estimate on that account before permitting the parties appropriate or share the monthly rents. The parties are also permitted to submit in form of a petition supported by affidavit to disclose the particulars of the monthly rent payable by the respondents No.3 to 6, as well as adjustments, if any to be made from such rent as well as their respective perception of the sharing such rent after making provisions for hereinbefore mentioned expenditures so to enable the learned Trial Court to adjudicate the matter. In doing so, if deemed appropriate, it would be open to the learned Trial Court to take recourse to the provisions of Order XXVI Rule 13 and 14 of the Civil Procedure Code to appoint a Commission to make a rough calculation in terms of above. 11. This Court is of the further view that as the relationship between the petitioners as landlord and the respondents No.3 to 6 as tenants have already been created by virtue of the practice being followed so far, after the ad-interim issue is decided by the learned Trial Court, it would be open for the court to allow the petitioners to collect the rent from the tenants i.e. respondent No. 3 to 6, with appropriate rider to the petitioner to appropriate their share of monthly rent only after handing over the respective share of the respondents No. 1 and 2 as determined by the learned trial Court. 12. Hence, without finding any infirmity in the impugned order dated 13.06.2016 passed by the court of learned Civil Judge No. 3, Kamrup (M), Guwahati in Misc. (J) Case No. 383/2015, in view of the order passed herein, the said order stands modified to the extent as indicated above. 13. Accordingly, the present revision stands disposed of. The parties are left to bear their own cost.