FARMANUL HAQ Vs. SHAGUFTA JAMAL

JUDGEMENT

(1.) Wife respondent No.1 has filed O.S. No.80 of 2005 against her husband Islamul Haq, respondent No.2 seeking to restrain him from interfering in her possession over a house. In the plaint, she stated that her husband was a very bad person and was residing away from her, not maintaining her properly, however her husband had gifted a house to her orally. It was further stated that her husband had got the said house in oral gift from his father. Husband filed the written statement admitting all the allegations of the plaint and further reiterating that he had got the entire house through oral gift from his father. The three petitioners are real brothers of Islamul Haq, the husband respondent No.2 They filed impleadment application in the suit. Trial Court/ Civil Judge, Senior Division, Deoband, Saharanpur rejected the impleadment application on 13.09.2012. Against the said order, petitioners filed Civil Revision No.139 of 2012. A.D.J., Deoband, Saharanpur dismissed the revision on 04.01.2013 holding that petitioners were at liberty to institute suit for declaration, hence this writ petition.

(2.) Learned counsel for the petitioners has argued that as husband-defendant-respondent No.2 conceded the case of wife-plaintiff-respondent No.1 hence the collusion between both is fully proved. The argument carries some force, however I am not expressing any final opinion at this stage.

(3.) In my opinion, assertion of wife that the entire house belonged to her husband as he had orally been gifted the said house by his father and admission/ assertion of husband respondent No.2 that the entire house had been gifted to him will not have least affect upon the petitioners' right. Learned counsel for the petitioners states that petitioners are residing in the said house. On the basis of the judgment and decree, which may be passed in the suit neither their right nor interest nor possession would be affected in the least. Neither wife nor husband respondent No.2 should be permitted to take any action against petitioners on the basis of the decree, which may be passed. If in the Nagarpalika records names of petitioners are recorded, on the basis of any decree which is passed in the suit their names shall not be touched. Petitioners need not even file suit for declaration. Their three fourth share in the house in dispute after the death of their father will remain perfectly intact in spite of the decree which may be passed in the suit. If respondent No.1 or 2 want any action against the petitioners, they will have to file suit against petitioners.