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2023 DIGILAW 1368 (ALL)

Saquibullah Khan v. Vishwamitra Pachnanda

2023-05-19

J.J.MUNIR

body2023
JUDGMENT : 1. This appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (for short, 'the Code') is directed against an order of Mr. Mohd. Firoz, Civil Judge (Sr. Div.), Aligarh dated 30.09.2022, partly allowing the plaintiffs' temporary injunction application and ordering parties to maintain status quo pending suit with regard to the suit property as detailed at the foot of the plaint. 2. The plaintiff-appellants (for short, 'the plaintiffs') have moved this appeal because they think that their partial success before the learned Civil Judge is not commensurate to their case. They pray that modifying the order passed by the learned Civil Judge directing parties to maintain status quo, an interim injunction be issued to restrain the defendants, acting by themselves or through their agents from interfering in the plaintiffs' peaceful possession in the suit property. The plaintiffs, therefore, in substance seek an injunction to be granted in clearer terms than the order made by the learned Civil Judge. 3. The facts giving rise to this appeal impel this Court to think that the plaintiffs' case prima facie stands not on very firm ground. The dispute involved in the suit is about the half part of a certain house, called Amar Bhawan, bearing No. 4/1486, situate at Medical Road, Dodhpur, Aligarh. The original owner of this property, long ago and before India was partitioned, was one Zahir Haider, who migrated to Pakistan in the year 1947. The property, therefore, vested in the custodian of evacuee and mutated as such in the records of the Aligarh Nagar Nigam, as the plaintiffs say, during the period 01.04.1955 to 31.03.1962. It was then assigned House No.1/36-AB. This Court would think, at that time, there would be no Nagar Nigam in the city of Aligarh, but a Municipality. 4. The custodian of evacuee property sold it in an auction to the late Amar Nath Pachnanda and declared him the purchaser of the aforesaid property w.e.f. 01.02.1957. The declaration was issued by the Managing Officer, Government of India, Ministry of Rehabilitation, District Aligarh. A sale certificate was issued on 10.04.1958 and registered as Document No.922 in the office of the Sub-Registrar, Aligarh on 14.04.1958. The name of the late Amar Nath Pachnanda was mutated in the House Tax Assessment Register for the period 01.04.1962 to 31.03.1975. The declaration was issued by the Managing Officer, Government of India, Ministry of Rehabilitation, District Aligarh. A sale certificate was issued on 10.04.1958 and registered as Document No.922 in the office of the Sub-Registrar, Aligarh on 14.04.1958. The name of the late Amar Nath Pachnanda was mutated in the House Tax Assessment Register for the period 01.04.1962 to 31.03.1975. The property aforesaid came to be inherited by Dharmpal Pachnanda, his son, by intestate succession. The name of Dharmpal Pachnanda was mutated in the municipal records for the period 01.04.1962 to 31.03.1975 by an order of the competent Authority of the Municipality dated 24.04.1970. The property then bore Premises No.3/60. It was subsequently changed to 4/717 in the House Tax Assessment Register for the period 01.04.1975 to 31.03.1987. It was lastly changed to 4/1486 in the House Tax Assessment Register, current from 01.04.1987. So much of the case is admitted to the two plaintiffs, Saquibullah Khan and Rehan Azim. The property, hereinabove described, with all its changing premises numbers shall hereinafter be called 'the suit property'. 5. It is the plaintiffs' case about their title and ownership that one Mohd. Aslam was the owner in possession of the suit property, on the basis of a will dated 08.02.1996, executed by Dharmpal Pachnanda in favour of Mohd. Aslam. Dharmpal Pachnanda is said to have expired on 24.11.1996 and Mohd. Aslam claims that succession opened out in his favour in terms of Pachnanda's will dated 08.02.1996. The will is an unregistered document. Nevertheless, the plaintiffs say that the will received affirmation because a decree dated 24.05.2019 was passed in Suit No.904 of 2018 between Mohd. Aslam and one Azad, besides another defendant to that suit. The suit was decided in terms of a compromise in favour of Mohd. Aslam. 6. It is also pleaded that prior to the said suit, Mohd. Azad had filed O.S. No.2193 of 2012, Mohd. Azad and others vs. Mohd. Aslam, seeking a mandatory injunction to dispossess Mohd. Aslam. The said suit was withdrawn on 25.05.2019 by Mohd. Azad and the other plaintiffs on account of the supervening compromise recorded in O.S. No.904 of 2018. Later on, another Suit No.18 of 2018, Mohd. Aslam vs. Hafsa Muqeet and others, was filed by Mohd. Aslam, which too was decided in terms of a compromise on 07.05.2019 in favour of Mohd. Aslam. 7. Azad and the other plaintiffs on account of the supervening compromise recorded in O.S. No.904 of 2018. Later on, another Suit No.18 of 2018, Mohd. Aslam vs. Hafsa Muqeet and others, was filed by Mohd. Aslam, which too was decided in terms of a compromise on 07.05.2019 in favour of Mohd. Aslam. 7. So far as the plaintiffs are concerned, they allege that Mohd. Aslam executed an oral gift in their favour on 29.12.2018 and a memorandum of oral gift was, later on, recorded on 05.03.2019. The said oral gift by Mohd. Aslam in favour of the plaintiffs was declared by the Civil Judge (Sr. Div.) to be binding and valid in terms of a decree dated 29.05.2019 passed in O.S. No.220 of 2019, Saquibullah Khan and another vs. Mohd. Aslam. This decree too was passed on the basis of a compromise. 8. The plaintiffs, therefore, seek an injunction in the present suit against the defendants, who are the sons of the late Dharmpal Pachnanda, to the effect that the defendants be restrained from interfering with their possession or demolishing the suit property, personally or through their agents and servants. 9. Through this injunction, the plaintiffs seek to assert their title and possession to the suit property. The plaintiffs' title to the suit property is traceable to the unregistered will dated 08.02.1996 executed by Dharmpal Pachnanda in favour of Mohd. Aslam and the subsequent oral gift made on 29.12.2018, relating whereto a memorandum of oral gift was drawn up later, on 05.03.2019. They claim affirmation of the aforesaid oral gift in terms of the compromise decree passed by the learned Civil Judge (Sr. Div.), Aligarh in O.S. No.220 of 2019. 10. The learned Civil Judge has, more or less, accepted the plaintiffs' prima facie case, entered a mixed up finding that both parties have alleged their title to the suit property. He has then remarked that looking to the facts and circumstances prima facie, it is necessary to keep the suit property safe and preserved. It has, therefore, been opined that an order directing parties to maintain status quo regarding the suit property pending suit is necessary, which the learned Judge has granted. 11. Heard Mr. Anil Kumar Aditya, learned Counsel for the plaintiffs in support of the motion to admit this appeal to hearing, Mr. Raghav Arora, learned Counsel appearing on behalf of defendant-respondent No.1 and Mr. 11. Heard Mr. Anil Kumar Aditya, learned Counsel for the plaintiffs in support of the motion to admit this appeal to hearing, Mr. Raghav Arora, learned Counsel appearing on behalf of defendant-respondent No.1 and Mr. Ashish Kumar Singh, learned Counsel on behalf of defendant-respondent No.2. 12. Defendant-respondent No.1 is Vishwamitra Pachnanda, a son of Dharmpal Pachnanda and Vinod Kumar, defendant-respondent No.2 is another son of the late Dharmpal Pachnanda. Defendant-respondent No.1, Vishwamitra Pachnanda and defendant-respondent No.2, Vinod Kumar Pachnanda shall hereinafter be referred to as 'defendant No.1' and 'defendant No.2', respectively. 13. Mr. Anil Kumar Aditya, learned Counsel for the plaintiffs has urged before this Court that the Trial Court has failed to consider that they are in possession of the suit property, whereon they have raised constructions, which are complete. A grievance has been made on behalf of the plaintiffs that the defendants have moved the Administrative Authorities to take forcible possession of the suit property. The Trial Court, on the other hand, has not at all considered the plaintiffs' case or the evidence adduced to establish their right prima facie. The learned Counsel has harped much on the Amin's report dated 31.03.1982, which he says, clearly shows that construction of buildings on the suit property is complete and now awaiting finishing touches besides furnishing. 14. The Trial Judge has ignored the fact that a huge sum of money has been spent in raising constructions on the suit property and all of it would go to waste and become immobilized by the order of status quo. It is argued that the defendants have not proved their title over the suit property and yet the Trial Judge has given a finding about possession, all mixed up, to pass an order of status quo. It has been repetitively argued before this Court that a six storey building, comprising flats is complete, but all condemned to waste because of the Trial Court's order of status quo. 15. Mr. Ashish Kumar Singh and Mr. Raghav Arora, learned Counsel appearing for the defendants, on the other hand, say that the entire basis of the plaintiffs' claim to title and possession is the result of a fraud and the plaintiffs possess no title in law. They emphasize that possession never passed from the late Dharmpal Pachnanda to Mohd. Aslam. It is submitted that the unregistered will propounded in the first place by Mohd. They emphasize that possession never passed from the late Dharmpal Pachnanda to Mohd. Aslam. It is submitted that the unregistered will propounded in the first place by Mohd. Aslam and now by the plaintiffs is a forged document, that neither bears the signatures nor the thumb mark of the late Dharmpal Pachnanda. Once Mohd. Aslam never had title, he could not have made any oral gift in favour of the plaintiffs, or later on drawn up a memorandum of oral gift. It is argued that the various suits, that were filed by Mohd. Aslam and against Mohd. Aslam by different third parties, are all sham and a facade to create title, where none exist. There was a submission made midway during hearing that the late Dharmpal Pachnanda's will in favour of Mohd. Aslam was never sought cancellation of by the defendants. Mr. Ashish Kumar Singh says that it was not necessary for him to ask for the cancellation of an unregistered bogus document. In substance, the submission of the learned Counsel for the defendants is that title never passed from Dharmpal Pachnand to Mohd. Aslam and thence to various third parties, including the plaintiffs, who now assert possession of the suit property. It is said that the plaintiffs are local land mafiosi, who have attempted to grab the defendants' ancestral property through the device of making a false document and then employment of muscle power, coupled with abuse of process of Court, to validate their title and possession, to which there is no basis. 16. Upon hearing learned Counsel for the parties, this Court must say, as remarked at the beginning of this judgment, that the plaintiffs' title, including that of their transferor Mohd. Aslam, appears to be far from what the proof of a prima facie case founded on title would require. The unregistered will said to have been executed by Dharmpal Pachnanda on 08.02.1996, does not seem to be even a slightly logical or remotely natural disposition of his property by Pachnanda. Admittedly, the property was purchased from the custodian of evacuee property by Amar Nath Pachnanda in an auction, which was given effect to through a sale certificate executed by competent Authority of the Government of India. It was duly admitted to registration way back in the year 1958. Admittedly, the property was purchased from the custodian of evacuee property by Amar Nath Pachnanda in an auction, which was given effect to through a sale certificate executed by competent Authority of the Government of India. It was duly admitted to registration way back in the year 1958. Amar Nath Pachnanda remained the recorded owner in his lifetime and upon his demise, the property devolved upon his son Dharmpal Pachnanda, who too came to be recorded in the municipal records. 17. Dharmpal Pachnanda was survived by his widow Smt. Sumitra Devi and three sons, to wit, Sarvamitra Pachnanda, Vishwamitra Pachnanda and Vinod Kumar Pachnanda. There is no earthly reason prima facie why ignoring his natural heirs, Dharmpal Pachnanda would make the odd choice of Mohd. Aslam to confer his legacy upon through a bequest. It was Mohd. Aslam, who is propounding the will dated 08.02.1996 to the exclusion of Dharmpal Pachnanda's heirs and it is he who ought to prove the will, free from all blemish and doubt. There is prima facie no need for Dharmpal Pachnand's heirs to seek cancellation of an unregistered will of this kind. 18. The learned Trial Judge has noticed, and, in any case, this Court takes notice of the fact that O.S. No.113 of 2009 was filed by Mohd. Aslam in the Court of the Civil Judge (Sr. Div.) against the heirs of Dharmpal Pachnanda, to wit, Sarvamitra Pachnanda and others. This suit was brought to claim a permanent prohibitory injunction to safeguard his title and possession to the suit property against the heirs of Dharmapal Pachnanda. It appears that this suit was withdrawn by Mohd. Aslam through an application dated 10.07.2019. In any case, there is nothing on record to show that it was decreed. Nevertheless, Mohd. Aslam filed a host of suits against third parties in whose favour he appears to have executed oral gifts or done some assignment out of the suit property, all of which he compromised before the Court in order to confer title upon the transferees. 19. In the present case, in favour of the plaintiffs an oral gift is said to have been executed on 29.12.2018, of which a memorandum was lateron written on 05.03.2019 to record what was orally done. A suit was then filed by the plaintiffs against Mohd. Aslam and again decreed through a compromise. 19. In the present case, in favour of the plaintiffs an oral gift is said to have been executed on 29.12.2018, of which a memorandum was lateron written on 05.03.2019 to record what was orally done. A suit was then filed by the plaintiffs against Mohd. Aslam and again decreed through a compromise. It is on this basis that the plaintiffs claim title, and, a fortiori, possession from Dharmpal Pachnanda through Mohd. Aslam unto themselves. The defendants have said that the will is an absolutely sham and bogus document and does not bear the signatures of Dharmpal Pachnanda. It would require discharge of a very heavy burden by the plaintiffs to prove the unregistered will, on the foot of which they claim through Mohd. Aslam. That proof has to come in a duly constituted suit, that is tried to judge the validity of Pachnanda's will. So far nothing of that kind has happened. All actions by Mohd. Aslam against third parties or by third parties against him have been suits that have terminated without a trial, in terms of compromises hard to come by in bona fide trials. 20. So far as the memorandum of oral gift dated 05.03.2019 recording the antecedent oral transaction of 29.12.2018 is concerned, its value would depend upon establishment of Mohd. Aslam's title, founded upon the unregistered will of Pachnanda’s. Unless the will in favour of Mohd. Aslam is proved, the oral gift by him, effected through a memorandum, would not be infused with life, capable of conferring any kind of title on the plaintiffs. 21. The way the disposition of the suit property has been claimed by the plaintiffs or their transferor Mohd. Aslam, prima facie leaves much to be desired. It is quite irrelevant in the background of title, as doubtful as this, that the plaintiffs have raised constructions on the suit property of immense value. If they have done it, they have done so at their peril. 22. There is no cross-appeal by the defendants, though this Court notices that they had moved a temporary injunction application in the suit, which the learned Civil Judge does not appear to have decided. There is, therefore, no option with this Court to interfere with in any other way with the impugned order passed by the Trial Court beyond affirming it. There is no cross-appeal by the defendants, though this Court notices that they had moved a temporary injunction application in the suit, which the learned Civil Judge does not appear to have decided. There is, therefore, no option with this Court to interfere with in any other way with the impugned order passed by the Trial Court beyond affirming it. However, in the circumstances, this Court is of opinion that the trial of this suit ought to be expedited and the controversy set at rest. 23. The appeal fails and is dismissed with costs. 24. The trial of the suit shall be expedited in the manner that if issues have not been framed, the same shall be framed within fifteen days from the date of receipt of a copy of this order. The trial shall proceed fixing two dates of effective hearing every week. It will not be adjourned because of any resolution of the Bar asking its members to abstain from discharging their professional duties. The Trial Court shall endeavour to conclude the trial within six months hence. 25. Let a copy of this order be communicated to the Civil Judge (Sr. Div.), Aligarh through the learned District Judge, Aligarh by the Registrar (Compliance).