TABASSUM GAZALA Vs. AMIT GARG

JUDGEMENT

(1.) In this First Appeal from order, the judgment under challenge is an interim order dated 27.8.2004 passed by the Civil Judge (Sr. Division), Allahabad by which the Court below has restrained the appellant-defendant from carving out plots in the disputed land and from transferring it to the prospective purchasers through sale and thus from dispossessing the plaintiffs from the property.

(2.) In the factual background of the disputes between the parties in the present declaratory suit the subject-matter is one Bungalow No. 11, Kanpur Road, Allahabad which happens to be a "Nazool" property initially given to Smt. Sehar Bano on lease of 90 years. She being the owner of the lease hold rights in the property, had contracted on 20.6.1976 with one Mahesh Chandra Gupta to transfer those rights in the property for a consideration of Rs. 1,00,000/- to a person nominated by him. She had also received a sum of Rs. 50,000/- as earnest money. In pursuance to this agreement of sale of the lease rights in the property, a permission from the competent authority for such transfer of rights was required but meanwhile Smt. Sehar Bano died on 7.9.1978. Thereafter, her legal representatives Javed Haidar, Tanveer Haidar and Naved Haider surreptitiously and in violation of the earlier contract wanted to transfer those lease rights in somebody else's favour. The mala fide intention of the legal representatives of Smt. Sehar Bano was countered by Mahesh Chandra Gupta by filing a Suit No. 231 of 1978 for permanent injunction against them, which was finally decreed on 22.2.1979 and the defendants in that suit were permanently restrained from transferring the lease rights in the property in dispute in favour of anybody else. Subsequently the said Mahesh Chandra Gupta on 12.11.1978 had nominated the great grandfather of plaintiff No. 1 and grandfather-in-law of plaintiff No. 2 namely Udai Ram Garg authorising him to get the transfer deed executed by Javed Haider and others after making payment of the remaining sale consideration to them. Mahesh Chandra Gupta for the purposes of nominating Udai Ram Garg and authorizing him to get the sale deed executed in his favour, had received a consideration of Rs. 55,000/- from him. The said Udai Ram Garg in his life time on 1.9.1983 had executed a Will in favour of the plaintiffs in respect of authority and nomination given to him by Mahesh Chandra Gupta for getting the lease hold rights of Bungalow No. 11 aforesaid transferred in his favour. Thereafter, Udai Ram Garg died on 2.12.1983. The plaintiffs after acquiring authority to get the leaseholds rights of the disputed property transferred in their favour in pursuance of the agreement dated 20.6.1976, made repeated requests to Javed Haider and others but with no result. Inspite of this, those Javed Haider and his two brothers even in the face of a decree of court passed against them in Suit No. 231 of 1978, restraining them from transferring their leaseholds rights, executed an agreement nominating the defendant to obtain freehold rights in her favour. After getting information of this illegal act of Javed Haider and others, the plaintiff filed Suit No. 388 of 2003 in which the present defendant Smt. Tabassum Gazala was also arrayed as defendant and obtained interim injunction order dated 19.7.2003 from the Court of Civil Judge (Sr. Division) whereby the defendants of that suit were restrained from making transfer of the property in question through sale, from creating any charge over the property and from obtaining freehold rights in the property in question. Inspite of all this, the defendant Smt Tabassum Gazala in utter violation and derogation of decree of the Court and also the interim injunction order as aforesaid obtained the free hold rights in the disputed property and got the free hold deed registered in her favour on 29.3.2004.

(3.) It is in the aforesaid factual matrix that the present suit for declaration of the free hold rights obtained by the appellant/defendant in the property in question, as void, was filed before the Court below and this ad-interim injunction application was also presented.