Abdul Wajid vs M/s. Jumma Masjid (Charminar) and Others

A.S. Bopanna, J.—The petitioner is before this Court assailing the judgment and decree dated 06.12.2007 passed in O.S. No. 4/2005. The suit in question was filed seeking injunction against the defendants impleaded therein, more particularly defendants No. 1 and 2 seeking for the relief of permanent injunction in respect of the suit schedule property.

The petitioner contends that as on the date of filing of the suit on 16.04.2005, the petitioner was the owner of the property inasmuch as he had purchased the property under a sale deed dated 15.01.2005 which in fact had been marked as Ex-P11 before the Court below. The said document is at Annexure-B to the petition.

The learned counsel for the respondent No. 5 would contend that the instant petition is not maintainable at the instance of the petitioner. With regard to the sale deed relied upon by the petitioner, it is contended that enquiry had been conducted and it is found that the transaction including change of entries itself is fraudulent. It is also contended that the suit being one for permanent injunction, the injunction would be in personal against defendants No. 1 and 2 therein and when the petitioner is not affected by the said judgment and decree, the instant petition would not be entertained.

Having considered the contentions put forth, what is necessary to be noticed is that the sale deed which had been marked as Ex-P11 (Annexure-B to the instant petition) would disclose that the same has been executed by the defendants No. 1 and 2 in O.S. No. 4/2005 in favour of the petitioner herein on 15.01.2005. It is seen that the suit was instituted on 16.04.2005. As on the said date, the sale deed which had been executed was subsisting in favour of the petitioner in respect of the very same suit schedule property. It is also contended that pursuant to the sale deed being executed, the revenue entries had also been changed in favour of the petitioner. If this aspect of the matter it kept in view, as on the date of institution of the suit itself, the defendants No. 1 and 2 had lost interest in the property and therefore the petitioner could not have instituted the suit against the persons who had lost interest in the property by alleging interference by them and seeking injunction against them when the petitioner was claiming to be the owner.

Even assuming for a moment that the defendants had any contention to put forth with regard to the validity or otherwise of the sale deed and the entries in the records, the same could have been assailed only after impleading the petitioner herein in the said suit and thereafter ask for appropriate reliefs instead of filing a suit for bare injunction against the persons who have admittedly lost interest in the property as on the date of filing the suit. Therefore, if these aspects are kept in view, the judgment and decree passed in O.S. No. 4/2005 on 06.12.2007 is against the person who has lost interest in the property, but to indirectly effect the rights of the petitioner herein. Therefore, I am of the opinion that the judgment and decree is liable to be set aside. Accordingly, the same is set aside. The matter is remitted to the Tribunal to restore O.S. No. 4/2005 on record, permit the plaintiffs to implead the proper and necessary parties and thereafter proceed with the matter in accordance with law. In terms of the above, the petition stands disposed of.