Noor Mohammad Bhat vs State & Ors.

The dispute between the parties to this Civil Revision Petition pertains to a single storied shop situated at Wazir Bagh, Srinagar, which is pleaded by the petitioner to have been gifted to him by his father, as also to the other shops for which respondent nos. 7 and 8 are alleged to have obtained gift from his father taking benefit of his ignorance.

The petitioner filed a suit seeking declaration that he is the absolute and exclusive owner of a single storied shop, and entitled to one third share of the compensation and other benefits likely to be awarded to the respondents by the Collector PWD Circular Road Project, Srinagar, in respect of the property left behind by his father, besides a declaration that the Gift Deed executed by his father in favour of respondent nos.7 and 8, on 31.03.1987 and registered on 15.06.1987, was a nullity, in the eyes of law.

The respondent nos. 7 to 9 contested the petitioner's suit claiming rights in the property in question on the basis of the Gift Deed, questioned in the suit.

An application seeking injunctive directions against the respondents too was filed by the petitioner along with the suit.

The Trial Court disposed of the petitioner's application vide its order of September 30, 2004, providing as follows:

In the instant case action of the nonapplicant which is contended by the applicant is violative on his right is the disbursement of the compensation.

However, the disbursement if permitted subject to the certain conditions in favour of the persons whom nonapplicants 2 to 5 have found entitle, same in my opinion, would not subject the applicant to an injury of such a nature which cannot be remedied by way of money and destruction of the lis legigating before cannot take place. The applicant in substance seeks the compensation to be paid in his favour which he can seek even without any restrain to be put on nonapplicant 7 to 9 from obtaining it from the nonapplicants 2 to 5. In view of this, I am of the opinion that balance of convenience does not swings in favour of the applicant for restraining the nonapplicants 2 to 5 permanently from making disbursement of compensation. The court has already on 53.2003 expressed its tentative opinion that nonapplicant 2 to 5 can proceed further with regard to the allotment of the shop. In the written statement it is pleaded that alternate of the shop has already provided to the nonapplicants, only the restrain had been asked to be placed on the nonapplicants 2 to 5 from alienating shop and not the disbursement of the compensation in the motion for grant of interim relief, Accordingly restraint put on nonapplicants 2 to 5 on 5.3.2003 from disbursing the compensation needs to be discharged.

However for safe guarding the interest of the applicant pending disposal of the suit, it is ordered that compensation if any disbursed in favour of the nonapplicants 7 to 9 same shall be subject to the outcome of the suit. Nonapplicants shall file an undertaking before the court that in case the applicant succeeds at trial, the nonapplicant 7 to 9 would reimburse in lump of the amount of compensation, if any found due to the applicant at culmination of the suit.

Petitioner's appeal against the trial court's order aforementioned has been dismissed by the learned 3rd Additional District Judge, Srinagar vide his order of September 30, 2008.

Questioning the findings of the two courts, the petitioner's learned counsel, Mr. A. Haqani, submitted that both the courts below have erred in holding that there was no primafacie case in favour of the petitioner, warranting issuance of injunctive directions against the respondent nos. 7 to 9 to get the benefits on the basis of the Gift Deed which had been questioned by him in the suit, in that, the petitioner's pleadings did make out a primafacie case justifying issuance of interim directions. Learned counsel further submitted that the expression "primafacie case" requisite for issuance of interim directions has been misconstrued by the two courts and the orders impugned, based on such misconstruction were liable to be set aside.

Learned counsel for the respondents, on the other hand supported the judgment, saying that the orders impugned being well reasoned and in accordance with law, no interference, was called for, in revision.

I have considered the submissions and gone through the pleadings of the parties.

Barring bald statement in paragraph nos.5 and 6 of the plaint that respondent no.7 had taken undue advantage of the petitioner's ignorance and innocence in turning his tenant hostile to him and fabricating a Gift Deed, purported to have been executed by their father on 31.03.1987, there is nothing in the petitioner's pleadings, on the basis whereof it may be said that he had succeeded in making out a primafacie case justifying putting a restraint on the respondent nos. 7 to 9 to derive benefits arising out of a registered Gift Deed which came to be executed and registered about twenty two years ago. It is not indicated in the plaint as to on what basis the petitioner has questions the registered Gift Deed as fabricated.

In order to demonstrate a primafacie case of fabrication of registered document(s), comprehensive pleadings, inter alia, indicating the facts and circumstances, which, if proved, would result in annulment of the questioned document(s), are required to be set up by a suitor, justifying issuance of adinterim directions, pending proof of such fabrication.

Mere bald plea that the questioned document was fabricated, without spelling out the reasons and circumstances in support thereof, would not satisfy the requirement of law to demonstrate the existence of a primafacie case.

The findings returned by the two courts that the petitioner had failed to make out a primafacie case, are well reasoned, which do not call for any interference, in view of the deficient pleadings of the petitioner to primafacie support his case of fabrication of the registered Gift Deed.

The trial court has, in the circumstances, issued requisite directions to protect the interests of the petitioner by haying an undertaking from the respondents, that in case the petitioner succeeds in the suit, they would reimburse the acquisition compensation payable to them on the strength of the questioned Gift Deed.

There is, thus no merit in this Revision Petition which is, accordingly, dismissed.