HASHMI Vs. ALI AHMAD

JUDGEMENT

(1.) Heard Shri Vijendra Singh, learned counsel for the petitioner and Shri M.A. Qadeer, learned Senior Advocate assisted by Shri Shamim Ahmad, learned counsel for the respondents Nos 1 to 9.

(2.) The writ petition is filed challenging the orders dated 5.7.2008 passed by the Civil Judge(J.D.) Nazibabad District Bijnor in misc. case no. 57 of 2007 as also the order dated 20.8.2008 passed by the Additional District Judge, Bijnor in civil revision No. 72 of 2008 which arose out of the misc case.

(3.) Brief facts relevant for deciding the controversy are that original suit no. 599 of 1965 for permanent injunction was filed by respondents no. 1 to 9 against the defendants in the said suit. The said suit was decreed on 23.10.1967. Petitioner claims ownership over the suit property which is subject matter of the decree. An application under Order XXI Rule 99 read with Rule 101 C.P.C. was filed by the petitioner in execution case no. 300 of 1968 on the ground that petitioner is owner in possession of the suit property. The respondent decree holder in collusion with the defendant got the decree dated 23.10.1967 including the property of the petitioner with a view to grab the same. The suit property which is subject matter of the controversy, a single storied residential house consisting of one room(Kotha) and Sahan, was transferred by father of the petitioner in favour of his daughter, the petitioner and his son Hasim alias Kasim through sale deed dated 3.8.1981 . The aforesaid property has been wrongly included by the ancestors of respondents no. 1 to 9 in the suit property and decree was obtained in original suit no. 599 of 1965 without arraying the petitioner as one of the defendant in the suit. The petitioner was living at her in-laws' house and her brother Hasim also died about 25 years back leaving behind two sons Noor Mohammad and Munees. Noor Mohamad also died and as such the petitioner could not know about filing of the original suit no. 599 of 1965 and the decree passed therein. After death of her husband when petitioner started living in the disputed house along with her children and nephew Muneer, the respondents decree holder started interfering with her possession, then she came to know about the decree. In order to restrain the respondent from interfering in her possession, suit no. 159 of 2005 for permanent injunction was filed by the petitioner and interim injunction has been granted in her favour to the effect that the parties were directed to maintain status quo on the spot.