Abdul Ahad Bhat & Ors vs Mst Mehtaba & Ors

Sanjeev Kumar, J

This Civil 2nd Appeal arises out of judgment and decree dated 21.10.2019 passed by the court of 2nd Additional District Judge, Srinagar (hereinafter for short 'the 1st Appellate Court') in an appeal titled Mst Azizi and Ors vs. Abdul Ahad Bhat and Ors., whereby the 1st Appellate Court has reversed the judgment and decree dated 29.06.2017 passed by the court of 3rd Additional Munsiff Srinagar (hereinafter for short 'the trial court') in a suit titled Abdul Ahad Bat and Ors vs. Mst Azizi and Ors.

Before this Court proceeds to appreciate as to whether any substantial question of law involves for determination in this appeal, it would be necessary to notice few contextual facts.

The appellants herein filed a suit against the respondents seeking a decree for permanent injunction to restrain the respondents herein from interfering with the peaceful possession and occupation of the land measuring 21 kanals under khasra No.397, 388, 410 and 395 situated at Batapora Srinagar (hereinafter 'the suit property'). In the plaint, the appellants claimed that the respondent no.1, Mst. Mehtaba was their mother and she had orally gifted away the suit property in their favour in equal shares about 20 years back. It was claimed that ever since, the appellants have been enjoying the peaceful possession of said property and were also receiving the usufructs thereof. It was pleaded that a year before filing of the suit, the respondent no.1, Mst Mehtaba had started interfering with the peaceful possession of the appellants over the suit property and, as such, they were forced to knock the portals of the court by way of filing a civil suit for declaration and permanent injunction. It was further pleaded that the court of 4th Additional Munsiff, Srinagar decreed the suit on 29.03.2003 and declared the appellants as owners and in possession of the suit property. It was, however, claimed that the other respondents thereafter started interfering with the peaceful possession and occupation of the suit property, therefore, they were once again constrained to file a suit, this time against the aforesaid respondents as well. The respondent no.1, Mst Mehtaba, who was defendant no.4 in the suit, in her written statement filed before the trial court did not dispute the averments made in the plaint and prayed that decree of permanent injunction as prayed for by the appellants with respect to the suit property be passed. It was claimed by the respondents that the appellants had no right or cause to maintain the suit property, in as much as, it was the mother of the appellants who could be said to have some locus in the matter. The decree relied upon by the appellants against their mother was also disputed on the ground that the same was collusive and without prejudice to the rights of the respondents. It was specifically pleaded by the respondents in their written statement that the suit property was owned and possessed by the common ancestor and, therefore, the position of respondent no.1, the mother of the appellants was that of a co-sharer holding suit property on behalf of all and not to the exclusion of the respondents. On the basis of pleadings of the parties, the trial court framed as many as eight issues and after permitting the parties to lead their evidence and hearing the rival arguments decreed the suit of the appellants and restrained the respondents/defendants from causing any sort of interference in their peaceful possession in the suit land. The suit was decreed primarily on the ground that the appellants were found to have been in peaceful possession of the property for long and, therefore, entitled to continue in possession and enjoy the property without interference from the respondents.

Aggrieved, the respondents challenged the judgment and decree of the trial court before the 1st Appellate Court, which upon consideration of the matter reversed the judgment of the trial court vide its judgment and decree dated 21.10.2019, impugned in the 2nd Appeal. First Appeal was allowed by the trial court primarily for the reason that though the mother of the appellants and thereafter the appellants may have been in possession of the suit property but the said possession was that of a co-sharer and if that be so, one co-sharer i.e, appellants and their mother were holding the property for and on behalf of other co-sharers. In short, the 1st Appellate Court found the appellants and respondents in joint possession and, therefore, refused to grant permanent injunction. The judgment and decree, impugned herein, in essence is the judgment and decree of reversal which is assailed by the appellants on several grounds enumerated in memo of appeal. Learned counsel for the petitioner has proposed in as many as eleven questions of law for adjudication.

Having heard learned counsel for the parties and perused the record, I am of the view that this appeal does not involve any substantial question of law which would warrant admission of this appeal. It is very evident on record and it is amply clear that mother of the appellants i.e, respondent no.1from whom the appellants have derived so called title and possession and respondents inherited the suit property from the common ancestor. It is also not in dispute that the common ancestor had not gifted this property to one co-sharer (respondent no.1) to the exclusion of other legal heirs (respondents). The common ancestor died intestate. Respondent no.1 claiming to be the khana-nisheen daughter of the common ancestor got the mutation of inheritance attested to the exclusion of other sisters. This mutation was challenged by the respondents before the revenue authorities and the same was set aside. The appellants brought the matter to this Court but lateron withdrew the writ petition by seeking liberty to establish their rights in a civil suit. Even the civil suit was filed by the respondent no.1 to seek a declaration that she was khana-nisheen daughter of her father and entitled to whole of his property but the same was also not pursued and was ultimately dismissed for non-prosecution.

From the aforesaid narration of events, it is abundantly clear that there is no proof brought on record to demonstrate that respondent no.1, the mother of appellants was a khana-nisheen daughter of her father and, thus, entitled to suit property to the exclusion of the other respondents. The mutation of interference attested in favour of the respondent no.1 too has been set aside. If that be the position, the 1st Appellate Court is correct in arriving at a conclusion that the property is joint and, therefore, the possession of respondent no.1 being one of the co-sharers would be deemed to be the possession of other co-sharers. There is nothing wrong in the conclusion arrived at by the 1st Appellate Court that once the parties are said to be in joint possession, no decree of permanent injunction by one co-sharer against the others would be maintainable. The 1st Appellate Court was, thus, correct in reversing the judgment and decree passed by the trial court. The questions of law proposed by the appellants therefore do not arise out of pleadings and evidence of the parties led before the trial court.

In the aforesaid back drop, I do not find that any question of law of public importance is involved for adjudication in this appeal. The judgment of the 1st Appellate Court is perfectly in consonance with law and does not call for any interference.

For the foregoing reasons, this civil 2nd Appeal is found not maintainable and the same is, accordingly, dismissed.