Rajasthan High Court
Aisha Bano D/O Safiya Bano W/O Khalid ... vs Mohammad Shafi S/O Haji Abdal on 13 May, 2024
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
[2024:RJ-JP:22069]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1940/2024
Aisha Bano D/o Safiya Bano W/o Khalid Gouri, R/o Ward No. 11,
Mohalla Vyapariyan, Sikar Tehsil And District Sikar (Raj.)
Presently R/o B-507, Malkani Hill Road, Opposite Mina
International Hotel, Jogeshwari (West) Mumbai (Maharashtra)
----Appellant
Versus
1. Mohammad Shafi S/o Haji Abdal, R/o Ward No.11,
Mohalla Vyapariyan, Near Noor Madarsa, Sadar Masjid Ke
Aage, Sikar Tehsil And District Sikar (Raj.)
2. Ramzan S/o Haji Adal, R/o Fatehpur Road, Opposite
Indira Hospital, Ward No.3, Sikar Tehsil And District Sikar
(Raj.)
----Respondents
For Appellant(s) : Mr. R. K. Agarwal, Senior Counsel
with Mr. Shubham Sharma, Adv.
For Respondent(s) : Mr. Bipin Gupta, Adv. for respondent
No.1
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
DATE OF JUDGMENT 13/05/2024
This Civil Miscellaneous Appeal has been filed by the
appellant-plaintiff-applicant (for short 'the applicant') against the
order dated 06.04.2024 passed by Additional District Judge No.2,
Sikar in Civil Misc. Application No.121/2022, whereby the
application for temporary injunction filed by the applicant under
Order 39 Rule 1 & 2 read with Section 151 CPC has been
dismissed.
Learned Sr. counsel for the applicant submits that the court
below had committed serious error in rejecting the temporary
[2024:RJ-JP:22069] (2 of 7) [CMA-1940/2024]
injunction application filed by the applicant despite there being a
strong prima facie case, balance of convenience and irreparable
loss in her favour.
Learned Sr. counsel for the applicant also submits that
applicant had filed a suit for declaring the family settlement dated
03.07.2002 and partition of the property as well as permanent
injunction. Learned Sr. counsel for the applicant also submits that
the trial court had committed serious error in disbelieving that the
land was purchased in the name of Akbar Hussain from the
income of joint business running in Mumbai. Learned Sr. counsel
for the applicant also submits that the respondent-defendant
No.1-non applicant (for short 'the non applicant') took the plea of
'hiba', which is an after thought and inconsistent to their
pleadings. Mutation order dated 21.12.1993 was opened on
account of 'hiba'. In mutation order it was wrongly mentioned that
the non applicant No.1 was the sole legal heir of deceased Akbar
Hussain.
Learned Sr. counsel for the applicant also submits that the
trial court in its order clearly stated that the said mutation was not
rightly opened. The non applicant No.1 fraudulently obtained the
mutation order with connivance of revenue officer in his favour,
despite the fact that mother of the applicant was alive and
criminal case was also registered.
Learned Sr. counsel for the applicant also submits that house
property belonged to Haji Abdul who left surviving three sons and
two daughters. The trial court wrongly considered the 'hiba' while
deciding the temporary injunction application.
[2024:RJ-JP:22069] (3 of 7) [CMA-1940/2024]
Learned Sr. counsel for the applicant also submits that on the
death of Akbar Hussain, land devolved upon Sayra Bano who is his
wife and daughter Safiya Bano. On death of Sayra Bano, land
continued with the daughter Safiya Bano. Subsequently, on death
of Safiya Bano, land devolved upon plaintiff-Aisha Bano (applicant)
by operation of law as noticed by the court below. It did not create
any right, title or interest in favour of the non applicants. The non
applicants had played fraud in mutation. So, there is no limitation
to challenge it.
Learned Sr. counsel for the applicant also submits that the
trial court wrongly considered the judgment of Hon'ble Apex Court
in the case of Pyarelal Vs. Shubhendra Pilania reported in (2019)
DNJ SC 115. Learned Sr. counsel for the applicant also submits
that as per contention of the non applicants, disputed land was
further divided in small plots for using the same for residential
purpose. So, judgment of Pyarelal (supra) is not applicable in this
case. Rather, judgment of the Hon'ble Apex Court in the case of
Harpal Singh Vs. Ashok Kumar & Ors. reported in (2018) 11 SCC
113 was applicable in this case. When land is not used for
agriculture purpose and it is used for residential purpose, then
Civil Court had jurisdiction to adjudicate the suit.
Learned Sr. counsel for the applicant also submits that the
court below had wrongly came to the conclusion that the applicant
had no possession on the disputed land. Learned Sr. counsel for
the applicant also submits that in relinquishment deed executed
between the non applicant no.1 and his brother non applicant
No.2, the applicant was not a party. So, said family settlement is
not applicable on the applicant. Learned Sr. counsel for the
[2024:RJ-JP:22069] (4 of 7) [CMA-1940/2024]
applicant also submits that the present suit is composite suit by
which applicant is seeking proprietary right and for adjudication of
the proprietary right, civil court had only jurisdiction.
Learned Sr. counsel for the applicant also submits that
grandfather, grandmother of applicant died. So non applicant No.1
was elder member of family. So, all the sale deeds were given to
him as guardian but he misused them and also submitted that
mere production of document from his possession did not prove
'hiba' as well as possession of property. Learned Sr. counsel for
the applicant also submits that mini trial cannot be held at this
stage.
Learned Sr. counsel for the applicant also submits that the
applicant had challenged the mutation to avoid the multiplicity of
the proceeding. Thus, prima facie case exists in favour of the
applicant. He has prayed that the non applicants be restrained to
create any third party right/interest and maintain status quo
regarding disputed property. So, appeal filed by the applicant be
allowed.
Learned Sr. counsel for the applicant has placed reliance
upon the following judgments : (1) Bhimabai Mohadeo
Kambekar VS. Arthur Import and Export Company & Ors.
reported in (2019) 3 SCC 191; (2) Anand Prasad Agarwalla
Vs. Tarkeshwar Prasad & Ors. reported in (2001) 5 SCC 568;
(3) Gurucharansingh & Ors. Vs. Mst. Gurdayal Kaur & Ors.
reported in AIR 1982 Rajasthan 91; (4) Janki Devi Vs.
Maniram & Ors. in S.B. Civil Regular First Appeal No.106/90
decided on 11.02.2000; (5) Sawarni (Smt) Vs. Inder Kaur
(Smt) & Ors. reported in (1996) 6 SCC 223; (6) State
[2024:RJ-JP:22069] (5 of 7) [CMA-1940/2024]
Government of Madhya Pradesh & Ors. Vs. Narsingh
Mandir, Chikhalda & Ors. reported in (2019) 18 SCC 89; (7)
Rajinder Singh Vs. State of Jammu & Kashmir & Ors.
reported in (2008) 9 SCC 368; (8) Indira VS. Arumugam &
Anr. reported in (1998) 1 SCC 614; (9) Commissioner of
Wealth Tax Andhra Pradesh Vs. Officer-in-Charge (Court of
Wards) Paigah reported in (1976) 3 SCC 864; (10) Daya
Singh & Anr. Vs. Gurdev Singh (Dead) by LRs & Ors.
reported in (2010) 2 SCC 194 and (11) Harpal Singh Vs.
Ashok Kumar & Anr. reported in (2018) 11 SCC 113.
Learned counsel for the non applicant No.1 has opposed the
arguments advanced by learned Sr. counsel for the applicant and
submits that the trial court while dismissing the temporary
injunction application rightly came to the conclusion that there is
no prima facie case, balance of convenience and irreparable loss in
favour of the applicant. Learned counsel for the non applicant No.1
also submits that the applicant did not have possession over the
disputed land and said mutation was opened in the year 1993. At
that time, mother of the applicant was alive but she had not
objected to it because Akbar Hussain had done the oral 'hiba' in
favour of non applicant No.1. Learned counsel for the non
applicant No.1 also submits that the applicant had challenged the
mutation entries. So, as per judgment of Hon'ble Apex Court in
the case of Pyarelal (supra) unless and until applicant seeks
declaration of her khatedari right, present suit is not maintainable.
Learned counsel for the non applicant No.1 also submits that the
applicant challenged the present mutation entries after a lapse of
28 years. Learned counsel for the non applicant No.1 also submits
[2024:RJ-JP:22069] (6 of 7) [CMA-1940/2024]
that original sale deed was in possession of the non applicant(s)
because Akbar Hussain done the oral 'hiba' regarding disputed
properties. So, trial court in its order clearly mentioned that these
documents were rightly in possession of the non applicant No.1.
Learned counsel for the non applicant No.1 also submits that the
non applicant No.1 got converted the land and residential houses
were constructed on it. The applicant had not made them party.
Learned counsel for the non applicant No.1 also submits that in
Muslim Law, no documentary evidence for 'hiba' is required. Non
applicant No.1 had filed affidavits of Mohd. Ali and Kasim Ali and
they had proved the 'hiba'. Applicant failed to rebut the contents
of these affidavits. So, there is no prima facie case, balance of
convenience and irreparable loss in favour of the applicant. So, the
trial court had not committed any error in dismissing the
temporary injunction application filed by the applicant. So, present
appeal being devoid of merit, is liable to be dismissed.
Learned counsel for the non applicant No.1 has placed
reliance upon the following judgments: (1) Ranganna Vs. T.
Ramachandra reported in AIR 2008 SC 2291; (2) Prashant
Kumar Dabral & Ors. Vs. Digvijay Singh & Anr. reported in
AIR 2013 Uttarakhand 52; (3) Jagannath Vs. State of
Rajasthan reported in AIR 2016 Rajasthan 89; (4) Pyarelal
Vs. Shubhendra Pilania (Minor) Through Natural Guardian
reported in 2019 DNJ (SC) 115; (5) Bagaram & Ors. Vs.
Balkishan @ Balramkishan & Anr. reported in 2019 (2) DNJ
(Raj.) 766; (6) Gurvinder Singh & Ors. Vs. Shelender
Godara & Anr. reported in 2023 (2) DNJ (Raj.) 823; (7)
Bheru Lal Vs. Addl. Distt. Judge Ramganj Mandi, Kota &
[2024:RJ-JP:22069] (7 of 7) [CMA-1940/2024]
Anr. reported in AIR 2013 Rajasthan 166; (8) Shyam Sunder
& Ors. Vs. Shivnandan & Ors. reported in 2013 (2) DNJ
(Raj.) 758; (9) Kishore Samrite VS. State of Uttar Pradesh &
Ors. reported in (2013) 2 SCC 398 and (10) Rasheeda
Khatoon (D) Through LRs Vs. Ashiq Ali Thro LRs reported in
2014 DNJ (SC) 957.
I have considered the arguments advanced by learned Sr.
counsel for the applicant as well as learned counsel for the non
applicant No.1.
It is an admitted position that applicant does not have
possession over the disputed property and it is also admitted
position that the applicant had challenged the mutation recorded
in favour of non applicant No.1 after a lapse of 28 years. It is also
admitted position that mutation was never challenged by mother
of the applicant. Mutation was rightly opened or not, would be
decided by the revenue court and not by the civil court. Applicant
failed to rebut the affidavits filed by the non applicants in support
of 'hiba'. The trial court while dismissing the temporary injunction
application rightly held that without getting declared the Khatedari
right, applicant cannot get the relief from the civil court. So, in my
considered opinion, the trial court had not committed any error in
dismissed the temporary injunction application filed by the
applicant. So, present appeal being devoid of merit, is liable to be
dismissed, which stands dismissed accordingly.
Pending application(s), if any, stand(s) dismissed.
(NARENDRA SINGH DHADDHA),J
Jatin /409
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