Delhi High Court
Mohd Ashraf & Ors vs Abdul Wahid Siddique on 14 December, 2020
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$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14th December, 2020
+ C.R.P. 89/2016
MOHD ASHRAF & ORS. ..... Petitioners
Through: Mr. Arpit Bhargava and Ms. Hina
Bhargava, Advocates.
(M: 9871316969)
versus
ABDUL WAHID SIDDIQUE ..... Respondent
Through: Mr. Rajiv Bajaj, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
CM APPL. 3822/2019
2. This application has been filed by the Petitioners seeking condonation
of 25 days' delay in re-filing the application for stay of the trial court
proceedings till the disposal of the present petition. Delay is condoned.
Application is disposed of.
CM APPL. 54975/2018
3. This application has been filed by the Petitioners for exemption from
filing certified copies of the annexures and fair typed copies of dim
annexures. Allowed, subject to all just exceptions. Application is disposed of.
C.R.P. 89/2016 & CM APPLs. 54974/2018, 3821/2019
4. Two short issues arise in this petition:
i. Firstly, whether the judgment of the Trial Court dismissing the
application under Order XII Rule 6 CPC, after nearly one and a
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half years of arguments being heard and the order being
reserved, is sustainable?
ii. Whether rights in an immovable property can be legally and
validly derived on the basis of a fatwa issued by a maulvi and its
binding nature on a third party?
5. A suit for possession and recovery of damages was filed by three
Plaintiffs i.e., Mr. Mohd Ashraf, Ms. Sadia Saad Yusuf and Mr. Javed Iqbal,
who are the Petitioners in the present petition, against Mr. Abdul Wahid
Siddique i.e., the Respondent/Defendant (hereinafter, "Defendant"). The
case of the Plaintiff's/Petitioners (hereinafter, "Plaintiff's") is that they are
the owners of the suit property, being property bearing no 1525-27, Begum
Manzil, Pataudi House, Darya Ganj, New Delhi-110002 (hereinafter, "suit
property") and they trace back their title to one Mst. Musharraf Begum
through six registered sale deeds and a fatwa, which are as under:
i. Fatwa dated 6th November, 1971 issued by Mufti Musharraf Ahmed,
Jamia, Fatehpuri, Delhi which, as per the Plaintiff's, vested rights in
Mr. Mohammad Salim Hussain.
ii. Sale Deed dated 18th February, 1999 executed by Mr. Asmat Saleem,
son of Late Mr. K.M. Salim Hussain in favour of Mr. Arshad Zarabi
and Mr. Zahid Hussain.
iii. Sale Deed dated 26th June, 2002 executed by Mr. Arshad Zarabi and
Mr. Zahid Hussain in favour of Mr. Mohd. Ashraf by which Mr. Mohd.
Ashraf is stated to have acquired 75% of the suit property.
iv. Sale Deed dated 7th February, 2011 executed by Mr.Zahid Hussain in
favour of Mr. Javed Iqbal by which Mr. Javed Iqbal is stated to have
acquired 25% share in the suit property.
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v. Sale Deed dated 7th February, 2011 executed by Mr. Mohd. Ashraf
favour of Mr. Javed Iqbal by which Mr. Javed Iqbal is stated to have
acquired 9% share in the suit property i.e a total of 34% share in the suit
property.
vi. Sale Deed dated 7th February, 2011 executed by Mr. Mohd. Ashraf in
favour of Ms. Sadia Saad Yusuf, by which Ms. Sadia Saad Yusuf is
stated to have acquired 33% share in the suit property.
Thus, the foundation of all the Sale Deeds is the fatwa dated 6th November,
1971.
6. Further, the case of the Plaintiffs is that the Defendant was a tenant of
Mst. Musharraf Begum and has no right in the suit property. Purchase of the
suit property was made by the Plaintiffs by registered sale deed in the year
2002 and 2011, pursuant to which notice demanding arrears of rent and
vacation of premises was issued in May, 2011 to the Defendant. The
Defendant challenged the ownership of the Plaintiffs on various grounds
leading to the filing of the suit for possession.
7. The Defendant's defence is that the original owner had made a
declaration, transferring ownership in favour of the Tenants. The Defendant's
case in the written statement is as follows:
i. That if the rent is Rs.375/- per month then the provisions of the Delhi
Rent Control Act, 1958 would apply.
ii. The Plaintiff's own case is that the Defendant is in possession since 32
years or more and no rent has been paid by the Defendant over this
entire period. Thus, the Defendant is the owner of the suit property by
means of adverse possession.
iii. The Plaintiff does not disclose the chain of documents by which the
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Plaintiff became the exclusive owner of the suit property and if the said
chain is disclosed it would be clear that the ownership is claimed on the
basis of forged and fabricated documents.
iv. No person has demanded the rent from the Defendant since 1971.
There is no rent agreement or rent receipt in favour of the Plaintiff or
even the original owner Mst. Mussharaf Begum.
v. Since Mst. Mussharaf Begum had no children and no close relatives
during her lifetime she had declared that the tenants/occupants of the
property would become owners upon her death.
vi. The intention of the Plaintiff is to grab the suit property on the basis of
forged and fabricated documents.
vii. That an unlawful attempt was made to disconnect the electricity supply
to the premises which was restored by an order of the ld. Civil Judge in
Suit No. 387/2011.
8. The following issues were framed in the suit on 23rd October, 2013:
"1. Whether the plaintiff is entitled to decree
for recovery of possession of suit property?
OPP
2. Whether the plaintiff is entitled to decree
for recovery of damages at the rate of
Rs.25,000/- p.m. from the date of filing of the
suit till the possession is handed over? OPP
3. Whether the plaintiff is entitled to decree of
permanent injunction restraining the
defendant from creating third party interest in
the suit property? OPP
4. Whether the defendant has become the
owner of the suit property by way of adverse
possession? OPD
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5. Relief."
9. After issues were framed, an application under Order XII Rule 6 CPC
was filed by the Plaintiffs. Arguments on the application were heard on 27th
September 2014 and the matter was fixed for orders/clarifications on 15th
October, 2014. Thereafter, on several dates, the order was not passed. Further,
without any direction from the Court, on two occasions the Defendant filed
case law. Finally, the Plaintiffs moved an application under Order XX Rule 1
CPC seeking pronouncement of judgment and finally, the impugned order
dismissing the Order XII Rule 6 CPC application was passed on 12th
February, 2016.
10. Mr. Bhargava, ld. counsel for the Plaintiffs submits on the first issue
that going by the judgment of this Court in Deepti Khera v. Siddharth Khera
[CM (M) 1637/2019, decided on 18th November, 2019], which relied on the
judgment by the Supreme Court in Anil Rai v. State of Bihar, (2001) 7 SCC
318, the order was passed very belatedly. On this very ground, it is argued that
the impugned order is liable to be set aside.
11. On this issue, Mr. Bajaj, ld. counsel for the Defendant does not dispute
the chronology of events leading to the pronouncement of the judgment.
12. A perusal of the order sheet of the Trial Court shows that the orders
passed on various dates after hearing in the Order XII Rule 6 CPC application
are as under:
Date of Order Contents of Order
7th August, 2014 Reply to the application under
Order 12 R 6 read with
Section 151 CPC filed on
behalf of the defendant. Copy
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supplied. Taken on record.
Put up for hearing arguments
on pending application on
27.9.2014.
27th September, 2014 Arguments on application u/o
12 R 6 read with Section 151
CPC heard.
Put up for order/clarifications
if any, on 15.10.2014.
Defendant is at liberty to file
case law in his support.
15th October, 2014 It is reported that defendant
has filed some case law in
support of his contention.
In view of this, put up for
order/clarification, if any, on
26.11.2014.
26th November, 2014 Put up for purpose fixed on
10.12.2014.
10th December, 2014 Lawyers are on strike today.
Put up for order/clarifications,
If any, on 29.01.2015.
29th January, 2015 Put up for order at 04.00 pm.
Matter called up again (04.00
pm): No time left for dictating
order as considerable time has
been devoted in recording
evidence in Suit No.209/14.
Put up for order on
16.02.2015.
16th February, 2015 No court time left for dictating
order.
Put up for order on 12.3.2015.
12th March, 2015 Put up for purpose already
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fixed for 10.04.15.
Ld. Presiding Officer is on 1st
half day leave today.
10th April, 2015 No court time left for dictating
order.
Put up for order on 05.05.2015
5th May, 2015 Put up for order on
23.05.2015.
23rd May, 2015 No court time left for dictating
order.
Put up for order on
06.06.2015.
6th June, 2015 No court time left for dictating
order.
Put up for order on
16.07.2015.
16th July, 2015 No court time left for dictating
order.
Put up for order on
22.08.2015.
22nd August, 2015 No court time left for dictating
orders.
Put up for order on
04.09.2015.
4th September, 2015 No court time left for dictating
order.
Put up for order on
24.09.2015.
24th September, 2015 Some case is filed on behalf of
defendant by the clerk of Ld.
counsel for defendant.
Put up for order on
13.10.2015.
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13. In view of the delay in pronouncement of orders in the application
under Order XII Rule 6, the Plaintiff filed an application under Order XX
seeking pronouncement of orders by the Court. On the said application, the
following order was passed by the Court on 13th October 2015.
"It is submitted by Ld. counsel for the plaintiff that
some case law has been filed by the defendant on
the last date of hearing without supplying copy to
him and without his knowledge as such he did not
get opportunity to respond. It is also submitted by
the Ld. counsel that his application under Order 20
read with Section 151 CPC was filed on
21.08.2015, ld. Counsel again submit that the
application was filed on 22.08.2015, however not
placed on record.
Ld. Counsel seeks to press his application and do
not wish to wait till 4.00 p.m.
Heard.
At the outset the submission as made by the Ld.
counsel for the plaintiff is misconceived and
contrary to record.
Ld. Counsel failed to substantiate his submission to
disentitle or stop the parties to file case law in
support of their case. The case law as filed by the
defendant is available on record and open for
inspection by the plaintiff on filing of appropriate
application, same has not been done by the plaintiff.
Even otherwise, vide order dated 27.09.2014 liberty
was granted to the defendant to file case law and
same was not objected by Ld. counsel for plaintiff.
Further, as per record, the application, as referred
by the Ld. counsel for the plaintiff is available on
record with necessary report by ahlmad and the
endorsement overleaf the application reflects date
of filing as 04.09.2015.
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It is the endeavour of this court to dispose of the
matter at the earliest within the limited working
hours although there is pendency of about 895
cases. Parties are also at liberty to inspect the
judicial record to keep track of their case. In view of
foregoing observations, application stands
disposed of.
Put up for order on 13.01.2016."
The order was finally pronounced dismissing the application on 12th
February, 2016. The said order of dismissal is impugned in the present
petition.
14. From the above table it is clear that the matter has been repeatedly
adjourned for orders over a period spanning more than one and a half years.
This would be contrary to the timelines prescribed by the Supreme Court in
Anil Rai (supra), which has been reiterated by this Court in Deepti Khera
(supra).
15. The broad guidelines to be followed by the Trial Court once arguments
are heard and orders are reserved is set out in Deepti Khera (supra) as
follows:
"9. While this Court is conscious of the fact that
there are pressures on the Trial Courts,
non-pronouncement of orders for more than a year
cannot be held to be justified. It has been observed
in several matters that trial courts keep matters
`FOR ORDERS' for months together and
sometimes orders are not pronounced for even 2-3
years. Thereafter the judicial officer is transferred
or posted in some other jurisdiction and the matter
has to be reargued. Such a practice puts enormous
burden on the system and on litigants/lawyers. The
usual practice ought to be to pronounce orders
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within the time schedule laid down in the CPC as
also the various judgements of the Supreme Court.
In civil cases maximum period of two months can be
taken for pronouncing orders, unless there are
exceptional cases or there are very complex issues
that are involved.
10. Accordingly, in respect of pronouncement of
orders, the following directions are issued:
When arguments are heard, the order sheet ought
to reflect that the matter is part-heard;
Upon conclusion of arguments, the order sheet
ought to clearly reflect that the arguments have
been heard and the matter is reserved for orders. If
the court is comfortable in giving a specific date for
pronouncing orders, specific date ought to be
given;
Orders ought to be pronounced in terms of the
judgment of the Supreme Court in Anil Rai (supra);
The order ought to specify the date when orders
were reserved and the date of pronouncement of the
order."
16. Recently the Supreme Court in Balaji Baliram Mupade and Anr. v.
State of Maharashtra and Ors., [Civil Appeal No. 3564/2020, decided on
29th October, 2020] has also observed as under:
"2. Judicial discipline requires promptness in
delivery of judgments - an aspect repeatedly
emphasized by this Court. The problem is
compounded where the result is known but not the
reasons. This deprives any aggrieved party of the
opportunity to seek further judicial redressal in the
next tier of judicial scrutiny.
3. A Constitution Bench of this Court as far back as
in the year 1983 in the State of Punjab v. Jagdev
Singh Talwandi - (1984) 1 SCC 596 drew the
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attention of the High Courts to the serious
difficulties which were caused on account of a
practice which was increasingly being adopted by
several High Courts, that of pronouncing the final
orders without a reasoned judgment. ...
4. Further, much later but still almost two decades
ago, this Court in Anil Rai v. State of Bihar - (2001)
7 SCC 318 deemed it appropriate to provide some
guidelines regarding the pronouncement of
judgments, expecting them to be followed by all
concerned under the mandate of this Court. It is not
necessary to reproduce the directions except to
state that normally the judgment is expected within
two months of the conclusion of the arguments, and
on expiry of three months any of the parties can file
an application in the High Court with prayer for
early judgment. If, for any reason, no judgment is
pronounced for six months, any of the parties is
entitled to move an application before the then
Chief Justice of the High Court with a prayer to
re-assign the case before another Bench for fresh
arguments.
5. The aforementioned principle has been forcefully
restated by this Court on several occasions
including in Zahira Habibulla H. Sheikh v. State of
Gujarat [(2004) 5 SCC 353 : AIR 2004 SC
3467 paras 80-82], Mangat Ram v. State of
Haryana (2008) 7 SCC 96 paras 5-10] and most
recently in Ajay Singh v. State of
Chhattisgarh, (2017) 3 SCC 330 : AIR 2017 SC
...
11. We must note with regret that the counsel
extended through various judicial pronouncements
including the one referred to aforesaid appear to
have been ignored, more importantly where oral
orders are pronounced. In case of such orders, it is
expected that they are either dictated in the Court
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or at least must follow immediately thereafter, to
facilitate any aggrieved party to seek redressal
from the higher Court. The delay in delivery of
judgments has been observed to be a violation of
Article 21 of the Constitution of India in Anil Rai's
case (supra) and as stated aforesaid, the problem
gets aggravated when the operative portion is made
available early and the reasons follow much later."
Thus, the Supreme Court has also recently reiterated the decision in Anil Rai
(supra). The Trial Court has to pronounce the order in terms of the timelines
laid down in Anil Rai (supra), which has been reiterated by this Court in
Deepti Khera (supra).
17. Thus, there can be no doubt that the impugned order would be liable to
be set aside on this very ground. However, since this is an application under
Order XII Rule 6 CPC, issues in the suit have already been framed and the suit
was filed way back in 2011, this Court proceeds to examine the application on
merits.
18. The second issue which arises is as under:
Whether rights in an immovable property can be legally and validly
derived on the basis of a fatwa issued by a maulvi and its binding
nature on a third party?
19. The submission of Mr. Bhargava, ld. counsel is that a fatwa is not
illegal as held in the judgment of the Supreme Court in Vishwa Lochan
Madan v. Union of India & Ors., (2014) 7 SCC 707. A fatwa, in fact,
binds as a whole and is a method of bringing about amicable settlement
between the parties. A fatwa per se is not illegal and the original owner, her
husband and her sister having passed away, issuance of the fatwa in favour of
the nephew of the original owner cannot be held to be illegal. He further relies
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upon a judgment of this Court in Hari Gopal Manu v. B.S. Ojha, [RFA
No.388/2015, decided on 10th February, 2016] to argue that once the
Defendant accepts that he is a tenant, he cannot challenge the rights of the
owner. He also relies upon the judgment of this Court in Mahinder Pal Singh
v. Ali Hussein Khan F+, [CS(OS) 1684/2009, decided on 1st December,
2011] to argue that an oral declaration cannot be relied upon by the Defendant
in this matter.
20. On the other hand, ld. counsel for the Defendant submits that the
original sale deed dated 18th February, 1999, which is part of the chain of
documents leading to the Plaintiffs' sale deed, itself records that Mst.
Musharraf Begum had passed away on 20th July, 1971 and her husband had
also died. Her sister passed away on 3rd August, 1971 leaving behind Khawaja
Mohammad Salim Husain who had allegedly succeeded to the estate of Mst.
Musharraf Begum on the basis of a fatwa. The manner in which the fatwa
describes him as the nephew of Mst. Musharaf Begum is also not clear. A
fatwa needs to be proved in accordance with law. In any event, the Plaintiffs'
case is not one for being decreed under Order XII Rule 6 CPC.
21. Heard counsels for the parties. The legality and validity of a fatwa
issued by maulvis has been the subject matter of the judgment of the Supreme
Court in Vishwa Lochan Madan v. UOI & Others., (2014) 7 SCC 707. The
Supreme Court was concerned with the question as to whether a fatwa is
binding and if so, in what manner. The Supreme Court was unequivocal in its
pronouncement that a fatwa does not satisfy the requirements of a legally
binding document and they do not trace their origin to validly made law. The
observations of the Supreme Court are as under:
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"13. As it is well settled, the adjudication by a legal
authority sanctioned by law is enforceable and
binding and meant to be obeyed unless upset by an
authority provided by law itself. The power to
adjudicate must flow from a validly made law. A
person deriving benefit from the adjudication must
have the right to enforce it and the person required
to make provision in terms of adjudication has to
comply that and on its failure consequences as
provided in law are to ensue. These are the
fundamentals of any legal judicial system. In our
opinion, the decisions of Dar-ul-Qaza or the fatwa
do not satisfy any of these requirements.
Dar-ul-Qaza is neither created nor sanctioned by
any law made by the competent legislature.
Therefore, the opinion or the fatwa issued by
Dar-ul-Qaza or for that matter anybody is not
adjudication of dispute by an authority under a
judicial system sanctioned by law. A Qazi or Mufti
has no authority or powers to impose his opinion
and enforce his fatwa on anyone by any coercive
method. In fact, whatever may be the status of fatwa
during Mogul or British Rule, it has no place in
independent India under our constitutional scheme.
It has no legal sanction and cannot be enforced by
any legal process either by the Dar-ul-Qaza issuing
that or the person concerned or for that matter
anybody. The person or the body concerned may
ignore it and it will not be necessary for anybody to
challenge it before any court of law. It can simply
be ignored. In case any person or body tries to
impose it, their act would be illegal. Therefore, the
grievance of the petitioner that Dar-ul-Qazas and
Nizam-e-Qaza are running a parallel judicial
system is misconceived.
14. As observed earlier, the fatwa has no legal
status in our constitutional scheme.
Notwithstanding that it is an admitted position that
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fatwas have been issued and are being issued. The
All India Muslim Personal Law Board feels the
"necessity of establishment of a network of judicial
system throughout the country and Muslims should
be made aware that they should get their disputes
decided by the Qazis". According to the All India
Muslim Personal Law Board "this establishment
may not have the police powers but shall have the
book of Allah in hand and sunnat of the Rasool and
all decisions should be according to the book and
the sunnat. This will bring the Muslims to the
Muslim courts. They will get justice".
15. The object of establishment of such a court may
be laudable but we have no doubt in our mind that it
has no legal status. It is bereft of any legal pedigree
and has no sanction in laws of the land. They are
not part of the corpus juris of the State. A fatwa is
an opinion, only an expert is expected to give. It is
not a decree, nor binding on the court or the State
or the individual. It is not sanctioned under our
constitutional scheme. But this does not mean that
existence of Dar-ul-Qaza or for that matter practice
of issuing fatwas are themselves illegal. It is
informal justice delivery system with an objective of
bringing about amicable settlement between the
parties. It is within the discretion of the persons
concerned either to accept, ignore or reject it.
However, as the fatwa gets strength from the
religion; it causes serious psychological impact on
the person intending not to abide by that. As
projected by Respondent 10 "Godfearing Muslims
obey the fatwas". In the words of Respondent 10 "it
is for the persons/parties who obtain fatwa to abide
by it or not". He, however, emphasises that "the
persons who are Godfearing and believe that they
are answerable to the Almighty and have to face the
consequences of their doings/deeds, such are the
persons, who submit to the fatwa". Imrana's case is
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an eye-opener in this context. Though she became
the victim of lust of her father-in-law, her marriage
was declared unlawful and the innocent husband
was restrained from keeping physical relationship
with her. In this way a declaratory decree for
dissolution of marriage and decree for perpetual
injunction were passed. Though neither the wife nor
the husband had approached for any opinion, an
opinion was sought for and given at the instance of
a journalist, a total stranger. In this way, the victim
has been punished. A country governed by rule of
law cannot fathom it."
22. A perusal of the above judgment makes it abundantly clear that a fatwa
cannot be imposed on a third party. A fatwa can be completely ignored and no
one needs to challenge the same before any Court of law. Imposition of a
fatwa would itself be illegal. The effect of this judgment on the alleged fatwa,
which is the basis of the Plaintiffs claim to ownership, would therefore have
to be adjudicated by the Trial Court.
23. Moreover, the manner in which ownership of immovable property can
either be vested or transferred is governed by the Transfer of Property Act,
1882 and the provisions of the Registration Act, 1908 have to be complied
with. While inheritance can undoubtedly be decided on the basis of personal
law, in the present case, there has been no adjudication as to who has inherited
the suit property which belongs to Mst. Mussharaf Begum and in what share.
A Court of law would have to adjudicate this issue after considering the
documents and evidence before it. A mere unilateral fatwa allegedly issued in
favour of one Mohd. Salim Hussain, on the basis of which his son purportedly
transferred the rights to the Plaintiffs, cannot be a valid and legal transfer in
the eyes of law - that too, for decreeing a suit under Order XII Rule 6 CPC.
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24. Recognizing such rights based on a fatwa which has not been examined
or sanctioned by a Court of law would be contrary to the Constitutional
scheme. While a fatwa can be the basis of an amicable settlement of disputes
between parties who submit to such a settlement process, binding the same on
a third party would be contrary to law. As held in Masoor Ahmed v. State
(NCT of Delhi) and Ors., 2008 (103) DRJ 137, as per Section 2 of the
Muslim Personal Law (Shariat) Application Act, 1937, issues relating to
intestate succession, special property of females, including personal property,
marriage, dissolution of marriage, maintenance, dower, guardianship, gifts,
trusts and trust properties, and wakfs would be governed by the Muslim
Personal Law (Shariat). However, this Shariat law would have to be applied
by the Court dealing with the dispute. The Court in seisin of a dispute would
have to satisfy itself as to the legality and validity of the claim to ownership
and only then pass an order in accordance with law. There cannot be any
legality or validity attached to a fatwa, especially in respect of ownership in
an immovable property. Such a declaration would also not be binding on any
third party.
25. A perusal of the entire chain of documents shows that the basis of the
Plaintiffs' claim of ownership to the suit property is the alleged fatwa dated
6th November, 1971 issued by Mufti Musharraf Ahmed, Jamia, Fatehpuri,
Delhi. The said fatwa is in the form of a conversation and is recorded below.
The original fatwa is in Urdu but a Hindi translation has been placed on record
and is extracted below:
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:19.12.2020 15:07
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.12.2020
16:08:47
26. Firstly, the genuinity of the above document has not been established
by the Plaintiffs. Whether, in fact, such a fatwa was issued or not is not clear.
This fatwa forms the foundation of the other Sale Deeds as per which the
Plaintiffs have acquired ownership rights. Unless and until, this foundational
document is proved in accordance with law, the Plaintiffs cannot claim rights
in the suit property. Moreover, even as per the above document, after the
demise of Mst. Mussharaf Begum, she had left behind various other heirs
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:19.12.2020 15:07
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.12.2020
16:08:47
including two nieces and an uncle, apart from her nephew - Mohd. Salim
Hussain. The fatwa itself states that after the other heirs' rights are given, then
the nephew - Mohd. Salim Hussain would become the owner of the suit
property. The question as to whether rights in the property have been given to
the other heirs or not is not clear. Moreover, during oral submissions, ld.
counsel for the Defendant has also submitted that the question as to whether
Mohd. Salim Hussain is himself a nephew or not is in doubt. Thus, all the
foundational facts in this case are yet to be established.
27. The Defendant has in the written statement denied the chain of
documents and has alleged that the documents are forged and fabricated. The
Defendant has also set up a defense that a declaration was made by Mst.
Mussharaf Begum that after her demise the occupants of the various portions
of the suit property would be the owners. Whether such a declaration was
made or not is not clear. The defense of adverse possession has also been
taken and would require to be adjudicated. The Defendant is in physical
possession of the property and a decree would result in the Defendant being
dispossessed. This court is of the opinion that the issues are such that they
cannot be decided in an Order XII Rule 6 CPC application.
28. In view of the above, this Court holds that the present suit is not liable
to be decreed under Order XII Rule 6 CPC. There is no admission by the
Defendant in the written statement, documents or otherwise. In fact, there is a
clear denial by the Defendant of the right of the Plaintiffs. Even if the
Defendant is stated to have admitted Mst. Mussharaf Begum's ownership of
the property, the same would not lead to a decree being passed as much as the
Plaintiffs would have to validly and legally trace back their title to Mst.
Mussharaf Begum. The other defences of the Defendant, including adverse
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:19.12.2020 15:07
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.12.2020
16:08:47
possession, would also have to be adjudicated.
29. This Court expresses enormous dissatisfaction over the manner in
which passing of orders under Order XII Rule 6 CPC was delayed by the Trial
Court after hearing arguments. However, on merits, the dismissal of the
application under Order XII Rule 6 CPC would not be liable to be interfered
with.
30. The Plaintiffs are stated to have filed their evidence by way of affidavit.
In view thereof, considering the fact that the suit is more than nine years old, it
is directed that trial of the suit be concluded within six months and judgment
be pronounced on or before 31st July, 2021.
31. The petition is disposed of in the above terms. All pending applications
are also disposed of.
32. Copy of this order be sent to the ld. Registrar General of this Court and
be also circulated to District & Sessions Judges of all Districts to ensure that
the timelines as prescribed in Anil Rai (supra), Balaji Baliram Mupade
(supra) and Deepti Khera (supra) are adhered to in respect of pronouncement
of orders.
PRATHIBA M. SINGH
JUDGE
DECEMBER 14, 2020
dk/dj/T
corrected and released on 19th December 2020.
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:19.12.2020 15:07
