RESHMA BEGAM Vs. SYED NAWAB

JUDGEMENT

(1.) The present petition seeking transfer is filed under Section 24 of C.P.C. to transfer E.P.No.91 of 2014 in R.C.O.P.No.64 of 2011 pending before the I Additional District Munsif Court, Trichy to the III Additional District Munsif Court, Trichy to be tried along with the suit in O.S.No.743 of 2016.

(2.) The facts in nutshell in the present case on hand is that the 2nd and 3rd petitioners are minor children of the 1st petitioner. The father of respondents 1 and 2 is Syed Hussain. He and his wife, Banubi purchased the subject property bearing old door No.4G, new door No.20, Rahmaniapuram, Thiruchirappalli through a registered sale deed dated 07.02.1947. The petitioner states that the said Syed Hussain passed away leaving behind his wife and children, Syed Akbar, Syed Nawab Jan, Sydani Beevi, Syed Mehaboob Basha, Syed Umar and Syed Ameer Basha. All of them inherited the estate of Syed Hussain. Out of them, Syed Umar passed away without any marriage and another son, Syed Ammer Basha passed away on 17.02.2003 leaving behind his sons Syed Jakir Hussain and Syed Jabir Hussain and daughters Fatima Begam and Riswana Begam. The 1st petitioner is the wife of Syed Jakir Hussain. The said Syed Jakir Hussain passed away on 14.08.2013 at the age of 37 leaving behind the petitioner and his two sons as his heirs. After the demise of the husband of the 1st petitioner, she continued to live in the same place. Subsequently, she was served with a notice in E.P.No.91 of 2014 by the I Additional District Munsif Court, Trichy. The petitioner came to know that the respondents 1 and 2, who are paternal uncles of 1st petitioner's husband had fraudulently obtained a settlement deed from their mother Banubi on 11.03.2010 in respect of the entire property. The petitioner states that the said Banubi did not have title over the entire property. Therefore, she could not execute settlement deed in respect of the entire subject property. The respondents 1 and 2 have filed an eviction petition against the husband of the 1st petitioner and his property in R.C.O.P.No.64 of 2011 on the file of III Additional District Munsif Court, Trichy. Their claim was that the husband of the petitioner was a tenant in the property. The relationship between the 1st petitioner and her husband was suppressed in their petition. Further, they have suppressed the fact that 1st petitioner's husband is one of the co-sharers of the subject property. The III Additional District Munsif had passed an exparte decree of eviction against the husband of the 1st petitioner on 11.09.2013. But on the date on which the ex-parte order of eviction was passed, the 1st petitioner's husband was not alive. He passed away on 14.08.2013. Therefore the decree had been passed against a dead person and it is null and void. On receipt of notice in the execution petition, petitioners filed a suit in O.S.No.743 of 2016, which is pending before the III Additional District Munsif Court, Trichy for declaration that the exparte order of eviction dated 11.09.2013 passed in R.C.O.P.No.64 of 2011 on the file of III Additional District Munsif Court, Trichy is null and void. This apart the petitioners had also filed a suit for partition in O.S.No.175 of 2014 on the file of III Additional District Court, Trichy against all the co-sharers and that suit is also pending. While so, E.P.No.91 of 2014 alone is pending before the I Additional District Munsif Court, Trichy. The Execution Court is insisting the petitioners that unless and otherwise, an order of injunction is obtained from the III Additional District Munsif Court, Trichy an order of delivery will be passed and in the event of an order of delivery is passed, the rights of the petitioners will be prejudiced. The apprehension of the petitioner is that an order of delivery may be passed by the I Additional District Munsif Court, Trichy. Hence, the present petition for transfer is filed.

(3.) This Court raised the question whether the present petition for transfer is maintainable under Section 24 of the Code of Civil Procedure, since the prayer sought for is transfer of E.P.No.91 of 2014 from the file of I Additional District Munsif Court, Trichy to the file of III Additional District District Munsif Court, Trichy, for which the District Court shall be approached under Section 24 of the Code of Civil Procedure at the first instance.