Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 282 (RAJ)

HABIBUNISSA v. SADDAM HUSSAIN

2018-01-22

DINESH MEHTA

body2018
JUDGMENT : Dinesh Mehta, J. The present leave to appeal has been filed by the petitioners seeking leave to file appeal against the judgment and decree dated 29.04.2014, passed by learned Additional District & Sessions Judge, Nimbahera, District Chittorgarh in a Civil Original Suit No. 111/2013 (Saddam Hussain & Anr. v. Manjoor Alam & Anr.). 2. The petitioners have filed the present leave to appeal, inter alia, contending that having purchased the subject property from the respondents, they have right, interest and title in the property; yet the respondents (plaintiffs and defendants) have obtained a decree of partition of the property, behind their back, despite having sold the property and knowing it well that their interest would be jeopardized on account of such decree. 3. Mr. Sarupariya, learned counsel for the petitioners, narrating the voluminous facts in brief, apprised that Jakir, Manjoor Alam and Nasiban Bano, all descendants of Ahmed Hussain, who died on 16.08.1995, had executed a registered sale deed dated 31.03.2000 in petitioners' favour and transferred a part of the property known as "Noor Mahal Building", situated in Nimbahera, District Chittorgarh. He submitted that respondents No. 1 and 2 have filed a suit for cancellation of the aforesaid sale deed dated 31.03.2000, which is pending before the competent Court. Meanwhile, the respondent No. 2 has filed a suit for permanent injunction against the petitioners, so as to restrain them from raising construction on the property purchased vide above referred sale deed. He went on to state that Manjoor Alam - respondent No. 3 and defendant No. 1 has also executed a sale deed in favour of petitioner No. 2 in respect of the entire suit property on 26.05.2016. 4. While the parties have locked horns in the forensic fight, the plaintiffs Saddam Hussain and Smt. Nilofar have silently filed a suit for partition and procured a preliminary decree, getting a declaration that each of the plaintiffs and the respondent No. 1 have 1/3rd share in the property. 5. Arguing his leave to appeal, Mr. Sarupariya contended that era of the parties to the suit were well aware that the property has been conveyed to the petitioners, yet ignoring their rights, they have filed the present suit for partition and collusively obtained a decree, which is bound to affect their rights. 6. 5. Arguing his leave to appeal, Mr. Sarupariya contended that era of the parties to the suit were well aware that the property has been conveyed to the petitioners, yet ignoring their rights, they have filed the present suit for partition and collusively obtained a decree, which is bound to affect their rights. 6. On the question posed by the Court, as to how, the petitioners simply having acquired or purchased some interest in the property can claim themselves to be a necessary party or aggrieved party, so as to call in question a preliminary decree passed pursuant to a suit for partition, which otherwise is a determination of inter se rights amongst the legal heirs/joint owners of the property. 7. Responding to such query, Mr. Sarupariya contended that petitioners have purchased part of the said property from Nasiban Bano, Jakir Hussain and Manjoor Alam-defendant No. 1 and vide another registered sale deed, he has purchased remaining part of the property, on which Saddam Hussain-the plaintiff No. 1 has given his consent. Showing his concern towards the decree, he contended that the learned Trial Court has passed a preliminary decree dated 29.04.2014 and held each of the parties namely, Saddam Hussain, Smt. Nilofar and Manjoor Alam entitled to 1/3rd share each, which is per se contrary to 'Shariat Law' inasmuch as, under the Muslim Law, a female heir is entitled to only half of the share, to which each male member is entitled. He contended that petitioner No. 2 has purchased undivided share from Manjoor Alam, keeping in view his undivided share as per the Shariat Law whereas, by virtue of the preliminary decree dated 29.04.2014, share of Manjoor Alam and Saddam Hussain has been substantially reduced, as Smt. Nilofar would get 1/3rd of the property, i.e., 33.3%, while her share, as per 'Shariat' can be only 20%. 8. In support of his argument that being a person aggrieved, petitioners can maintain the present leave to appeal, Mr. Sarupariya cited following judgments of Hon'ble Supreme Court :- 1. AIR 1958 (SC) 394 , 2. (2008) 14 SCC 642 , 3. (2003) 9 SCC 646 and 4. (2003) 1 SCC 34 . 9. Mr. 8. In support of his argument that being a person aggrieved, petitioners can maintain the present leave to appeal, Mr. Sarupariya cited following judgments of Hon'ble Supreme Court :- 1. AIR 1958 (SC) 394 , 2. (2008) 14 SCC 642 , 3. (2003) 9 SCC 646 and 4. (2003) 1 SCC 34 . 9. Mr. Shaitan Singh, learned counsel appearing for the respondent No. 2 - plaintiff No. 2 (Smt. Nilofar), vehemently opposed grant of such leave to the petitioners and contended that the petitioners despite having purchased the property are absolutely strangers to the lis, which is essentially, rather only between the descendants or co-sharers of the ancestral property. He contended that the division of shares, which has been determined by the learned Court below does concern the petitioners at all. The quantum of share to which, each of the legal representatives is entitled has been determined by the learned Court below and the same is final and binding. The petitioners cannot seek to alter such determination. 10. Learned counsel for the respondent pointed out to the Court that the suit in question was only in relation to a part of the "Noor Mahal Building", particulars whereof have been given in para No. 1 of the plaint which, reads thus :- **uwj egy fcfYMa+x ds mrj if'pe dksus dk uhps dk Hkkx Hkwry dk ,d cM+k dksBk ,oa blls yxk ,d dejk vkSj buds iwohZ rjQ dk cjkenk ,oa pkSd fLFkr gSA** 11. Thereafter, he invited attention of the Court towards the sale deed, Annexure-1 executed by Nasiban Bano, Jakir Hussain and Manjoor Alam-defendant No. 1 and contended that the same is for 'Taliya' (open chowk) ad-measuring 13 x 18.10 ft. = 243.7 sq.ft., having no nexus with the suit property, and added that such position is fortified from a look at the map, enclosed with the sale deed Annexure-8 (page 46 of the paper book). 12. = 243.7 sq.ft., having no nexus with the suit property, and added that such position is fortified from a look at the map, enclosed with the sale deed Annexure-8 (page 46 of the paper book). 12. Learned counsel for the respondents argued that the petitioners have based their case on an agreement to sell dated 02.11.2012 whereby, Manjoor Alam has agreed to sell the property namely, **,d cM+k dksBk o blls yxk dejk rFkk bl cM+s dksBs ds iwoZ esa cjkenk o mlls vkxs ,d dejk o pkSd fLFkr gSA** and averred that the disputed property have been purchased by him whereas for the same property, plaintiffs have filed suit for partition and sought an injunction qua the defendant No. 1-Manjoor Alam so that he does alienate such part, as it was allegedly undivided ancestral property. 13. Learned counsel for the respondents further submitted that the decree sought to be challenged came to be passed on 29.04.2014 and in furtherance whereof, the respondents had got a public notice issued in the daily newspaper on 04.05.2014, informing all concerned about such decree and also about attempt/intention of Manjoor Alam to sell this property to Habbibuddin (petitioner No. 2) or any other person and cautioned them that the same would be illegal and nullity vis-a-vis their rights. As such, if despite the decree dated 29.04.2014 and public notice dated 04.05.2014, if the petitioner No. 2 has purchased the contentious property, vide sale deed dated 26.05.2016 (Annexures-7 and 8), the petitioner is to thank himself. 14. In backdrop of these facts, learned counsel for the respondent argued that firstly, the petitioners had purchased the disputed property before or during the pendency of the suit and the same has been purchased by them, two years after passing of the decree in question and secondly the defendant No. 1 Manjoor Alam having only 1/3rd share, has transferred the entire property, without any authority of law. In such situation it is clear that the petitioner No. 2 has purchased the dispute itself, instead of purchasing the property, with his eyes wide open. In the facts obtaining in the present case, petitioner cannot be permitted to assail the preliminary decree dated 29.04.2014; Mr. Shaitan Singh rested his arguments. 15. First of all, coming to the maintainability of the present leave to appeal in light of the judgment cited by Mr. In the facts obtaining in the present case, petitioner cannot be permitted to assail the preliminary decree dated 29.04.2014; Mr. Shaitan Singh rested his arguments. 15. First of all, coming to the maintainability of the present leave to appeal in light of the judgment cited by Mr. Sarupariya, the position of law, as held by Hon'ble Supreme Court is crystal clear, that a person having right, interest and title in the property or an aggrieved party, without being a party in the suit proceedings, can challenge such judgment and decree, albeit by taking leave from the Court. 16. The core question which crops up for determination in the extant facts is, as to whether, the petitioners before the Court, seeking such leave, can be said to be persons aggrieved or concerned with the decree under consideration, being a decree of partition dated 24.09.2014? If the law enunciated by the Hon'ble Supreme Court is applied in the factual matrix of the case at hands, this Court is of the considered opinion that the petitioners cannot be even termed as concerned parties much less aggrieved parties. They are rather party to the collusion/connivance of the defendant No. 2-Manjoor Alam, for which they have purchased the disputed property. 17. A perusal of the facts on record clearly evince that the petitioner No. 2 had purchased only a 'Taliya' (open chown) admeasuring 243.75 sq. ft., a part of the "Noor Mahal Building", which has absolutely no nexus with the part of the property, for which, the suit for partition had been filed and preliminary decree had been passed, as noticed above. 18. As far as the contentious property is concerned, namely, **uwj egy fcfYM+ax ds mrj if'pe dksus dk uhps dk Hkkx Hkwry dk ,d cM+k dksBk ,oa blls yxk ,d dejk vkSj buds iwohZ rjQ dk cjkenk ,oa pkSd fLFkr gSA** , had been purchased by the petitioner No. 2, before or during the pendency of the suit. 19. It is true that the petitioners have placed on record, an agreement to sell dated 02.11.2012 executed by Manjoor Alam-defendant No. 1, whereby the said property **,d cM+k dksBk o blls yxk dejk rFkk bl cM+s dksBs ds iwoZ esa cjkenk o mlls vkxs ,d dejk o pkSd fLFkr gSA** has been agreed to be sold to the petitioner No. 2 for a sum of Rs. 10,000/-. 20. 10,000/-. 20. Much can be commented about such agreement to sell, but suffice it to observe that the said agreement to sell, in relation to an immovable property, which is neither registered, nor appropriately stamped, having been executed only on a stamp of Rs. 100/-, does confer any title in the property, so as to hold the petitioner No. 2, as a person having right, interest and title in the property, for which, the suit for partition had been filed. 21. Adverting to sale deed dated 26.05.2016 (Annexure-8) whereby Manjoor Alam-defendant No. 1 has sold the subject property to petitioner No. 2, vide registered sale deed, it is to be noted that the same has been transferred by defendant No. 1, in clear contravention of the preliminary decree dated 29.04.2014, as said Manjoor Alam-defendant No. 1 was and has been declared owner of only 1/3rd share of such property; which too was un demarcated. It is thus held that the sale deed dated 26.05.2016 itself is illegal and a nullity. 22. Apart from the above, the sale deed came to be executed after more than two years of the decree and that too, after publication of the public notice dated 04.05.2014. Hence, it cannot be said that the petitioner No. 2 was ignorant of such preliminary decree of partition and if that be so, at least the seller Manjoor Alam, very much being part of the decree, cannot claim ignorance and immunity. Be that as it may, on the basis of the aforesaid illegal purchase, subsequent to the decree, the petitioner No. 2 cannot claim himself to be a person aggrieved so as to frustrate or even question the decree of partition. 23. In considered opinion of this Court, the present leave to appeal filed by the petitioners is nothing, but an attempt to harass the parties, by opening another front of litigation. The petitioners, being strangers to the lis, have no locus or right to challenge the preliminary decree dated 29.04.2014, that too after two years, for which, their leave to appeal is rejected.