Mohd. Siddique and Others vs Maqbool Begum and Others

V.K. Shrivastava, J.—Heard on M.(C.) P.No. 1462/2005 under Order 41 Rule 22 of the CPC filed by Respondents No. 2 to 6, M.(C.) P.No. 1033/2005 filed by Respondent No. 1 under Order 39 Rules 1 and 2 read with Section 151 of the CPC for grant of temporary injunction, M.(C.) P.No. 1463/2005, an application filed by Respondents No. 2 to 6 under Order 39 Rules 1 and 2 read with Section 151 of the CPC for grant of temporary injunction, I.A. No. 2599/2005 filed by the applicants Sajeeda Riyashat Seikh and Sahara Begum for impleading them in the appeal as necessary parties.

It is not disputed that cross-objection has been filed within one month from the date of service of notice on the Respondents. The cross-objection filed by Respondents No. 2 to 6 shall be heard along with the appeal.

Undisputedly Karim Baksh and Mohammed Akhtar are the sons of Maula Baksh. Maula Baksh, Karim Baksh and Mohammed Akhtar are no more. The Appellants are the sons of Karim. Baksh and the Respondents are the legal heirs of Mohammed Akhtar. The Appellants filed a suit for declaration and possession on the strength of a registered gift-deed dated 4-10-1948 executed by their grandfather Maula Baksh. The Respondents filed separate suit for partition of the same property on the ground that the suit property is joint property of both the parties. Both the suits bearing No. 33-A/96 and 26-A/96 have been decided by a common judgment on 8-8-1997. Learned Court below held that the suit house is owned by Maula Baksh. The giftdeed executed by Maula Baksh is legal. Maula Baksh handed over possession of a part of the suit house to the Appellants on 14-10-1948. Learned Court also held that except a portion of the suit house which is described by red colour in the map, the Respondents have no right over rest of the house. Vide impugned judgment and decree, learned Court below dismissed the suit for partition and instead granted a decree for declaration and possession for part of the suit house in favour of the Appellants.

The Appellants aggrieved by the judgment and decree filed this appeal. Admittedly Respondent No. 1 also filed an appeal against dismissed of her suit which she has preferred for partition and Respondents No. 2 to 5 have filed cross-objection before this Court.

Sajeeda Riyashat Seikh and Sahara Begum were not parties in both the suits. They for the first time have come forward with this application for affording themselves an opportunity of hearing in this appeal on the ground that they are real sisters of the Appellants. The judgment and decree passed by Court below does not bind these applicants. If they have any interest/right in the suit property, that right still lies with them. Order 1 Rule 3A of the CPC empowers the Court in cases where delay may be caused to order separate trials or other orders expedient in the interest of justice. In the instant case, at this juncture, if applicants are allowed to join as parties in the appeal, the same will unnecessarily cause delay in disposal of the long pending lis. If they have any right, they can file separate suit to enforce the same. With these observations, I.A. No. 2599/2005 stands disposed of.

Admittedly the Appellants and the Respondents are heirs of Maula Baksh and the vital dispute has been raised with respect to gift-deed executed by Maula Baksh in favour of the Appellants disentitling the Respondents from the suit property. The validity of the gift-deed is to be determined. The principles of balance of convenience and irreparable loss are in favour of the Respondents. Therefore, to protect the interest involved in the property of the Respondents, it is necessary that injunction restraining the Appellants from alienating the property be made not only to avoid multiplicity of the cases but also to protect the risk of irreparable loss which may cause to them.

The Appellants are restrained from alienating the suit property till decision of the appeal. Accordingly, M.(C.) P.No. 1033/2005 and M.(C.) P.No. 1463/ 2005 stand disposed of.

List the case for final hearing in its due course.

Temporary Injunction Granted.