Nisar Ahmed Sheikh vs Riaz Jan Mast & Ors

Dhiraj Singh Thakur, J

This is a Civil Ist Miscellaneous Appeal against the judgment and order dated 12th of September, 2017 passed by the learned Additional District Judge, Srinagar.

Briefly stated the material facts are as under:

A civil suit for possession and injunction came to be filed by the plaintiff in regard to the property consisting of a house and two kanals of land underneath and appurtenant thereto situate at Gogji Bagh, Srinagar. The case set up by the plaintiff in the suit was that the aforementioned property belonged to his uncle Noor Mohd., which had fallen to his share as per the settlement arrived at in court proceedings. It was stated that after the death of Noor Mohd., he was survived by his wife, namely, Mst. Khalida Begum. It was further stated that the couple was issueless.

The case set up is that after the death of Noor Mohd., the plaintiff looked after his aunt- Mst Khalida Begum obediently and in view of his love and affection, she executed a Licence Deed as also a Gift Deed in favour of the plaintiff in regard to the suit property. It was, thus, stated that the plaintiff became the absolute owner and was in possession of the suit property. It was further stated that because of the flood in September, 2014 the property in question was totally inundated and consequently got damaged. In those circumstances, it was alleged that the defendant No. 1-appellant herein illegally took possession of the property in question behind the back of the plaintiff and tried to affect repairs and renovation in the property in question, thus, giving a cause of action to the plaintiff to file the suit.

A detailed written statement came to be filed by the defendant No. 1-appellant herein in which a stand was taken that the defendant-appellant had been living with Mst. Khalida Begum and Noor Mohd and had even got married while living with them as he was the son of the real brother of Mst Khalida Begum. It was stated that in view of the love and affection of the defendant-appellant, Mst. Khalida Begum had made an oral gift of the property in question in his favour on 1.11.2009, which was accepted by him and possession taken thereto. It was thus stated that the possession and occupation of the premises in question was peaceful and without any interference or interruption ever since. With regard to the documents on which the plaintiff placed reliance, it was stated that the Will Deed dated 26.11.2002 had been revoked by Mst. Khalida Begum vide Revocation Deed dated 22.10.2003. The Licence Deed also was questioned as manipulated and forged inasmuch as the said Licence Deed purportedly reflected the plaintiff as a licensor and Mst. Khalida Begum as a licensee of the property in question.

Notwithstanding the aforementioned documents, the plaintiff claimed a share in the property in question as per the law of inheritance being the nephew of Noor Mohd on the ground that after his death, his widow Mst. Khalida Begum could not have willed away property more than what had actually fallen to her share.

The trial court having considered the matter, directed the maintenance of status quo on spot till the final disposal of the main suit. It was made clear in the order that status quo would be construed to mean that parties would not create third party interest by way of sale, gift, mortgage, tenancy etc. What was, however, allowed was that 'the parties would have a right to affect the necessary habitable repairs/renovation so as to make the suit property habitable but only after permission for such repairs/renovation was granted by the municipal authorities or any other authority created under law'. It was further ordered that while affecting repairs, no structural change would be made in the existing structure.

Counsel for the appellant urged that the court below committed an error in allowing the plaintiff a right to affect necessary repairs and renovation even when admittedly the plaintiff was out of possession. There is considerable weight in the argument of the learned counsel for the appellant in this regard. The suit is admittedly a suit for possession filed by the plaintiff, which itself suggests that the possession was with the defendant-appellant herein. In that view of the matter, there was no occasion indeed for the trial court to concede to the plaintiff a right to affect repairs in addition to such a right having been granted in favour of the defendant-appellant herein. Such an order, as rightly stated by learned counsel for the appellant, would have the potential of compounding problems and confusion. In my opinion, the right to affect repairs would vest only in the defendant-appellant and not in the plaintiff. In addition to this, it is held that no permission would be obtained by the appellant if it was not otherwise necessary to be obtained from the municipal authorities.

Learned counsel for the appellant also contended that while considering the issue of grant of interim relief, pending the final disposal of the suit, the court below had proceeded to hold a mini trial and made observations with regard to the rights of the parties and the documents relied upon in support of their respective cases, which were totally unnecessary and would affect the final outcome of the suit and the stand taken by the appellant. There is considerable weight in this argument also as it has been seen that at some places in the order impugned, the court below has proceeded actually to decide certain issues, which the trial court ought not to have touched at that stage. To cite an example, the court below proceeded to hold that on the death of Noor Mohd., Mst. Khalida Begum inherited the property left behind by her husband to the extent of 1/6th of the property and that the remaining property had to be inherited by his other legal heirs i.e., the plaintiff and defendants 2 to 4. Now, this finding, in my opinion, was not necessary as it prematurely determined that Mst. Khalida Begum was not the exclusive owner of the property in question and that the true owner was none else than Noor Mohd., who according to the plaintiff, had become the owner on the basis of a settlement arrived at in court proceedings. This, I say so, on the basis of the stand taken by the defendant-appellant herein in the written statement where the exclusive ownership of Noor Mohd. was denied in regard to the property in question.

In view of the above, it is held that any such observation made by the trial court in the order impugned, which touches upon any of the substantive rights of the parties would not have any bearing on the final decision of the case. The present appeal is thus partially allowed. Order dated 12th of September, 2017, therefore, shall stand modified accordingly.

Disposed of accordingly.