HAJI SHABBIR AHMAD Vs. DISTRICT JUDGE KAUSHAMBI

JUDGEMENT

(1.) TARUN Agarwala, J. The petitioners are the plaintiffs and filed a suit for a permanent injunction alleging that they became the bhumidhars by virtue of a sale deed dated 3-11-1997 and, on that basis, came in the possession of the said land. It was alleged that the defendants had no right on that land. It was also alleged that the respondents tried to take forceful possession of the land in question on 31-10-2004 and therefore, prayed that the defendants be restrained from interfering in the peaceful possession of the plaintiffs on the land in question or to make any constructions on the land in question. The defendants appeared and filed their objections. The trial Court after considering the material on the record granted a temporary injunction restraining the defendants from interfering in the possession of the plaintiffs on the land in question. The defendants filed an appeal which was allowed and the temporary injunction granted by the trial Court was set aside. Aggrieved, the plaintiffs have filed the present writ petition.

(2.) THE dispute in the present writ petition pertains to a mango grove, a dilapidated Kothi, other trees and a barren land. According to the defendants, the said land was recorded in the name of Smt. Khatoon Jannat Bibi. THE defendants, in their objections, submitted that Smt. Khatoon Jannat Bibi, made an oral gift on 16-8-1988, with regard to the aforesaid plots, in favour of the defendant Nos. 3 and 4, namely, Asma Lateef and Zafeera Lateef, who were the grand daughters of Smt. Khatoon Jannat Bibi. It was alleged that Smt. Khatoon Jannat Bibi executed a memorandum on 23-8-1988, recording the factum of oral gift in favour of her grand daughters and that she had also filed an affidavit before the Court of Tehsildar, Sirathu, District Allahabad alleging that she had gifted the properties to her grand daughters and had also put them in possession and submitted that their names may be mutated in the revenue records. Based on the aforesaid oral gift, the grand daughters Asma Lateef and Zafeera Lateef, defendant Nos. 3 and 4 applied for mutation. In these mutation proceedings, Sri Asad Ullah Kazmi, the father of the plaintiffs, who was the son from the first husband of Smt. Khatoon Jannat Bibi, contested the proceedings and also moved an application for the mutation of his name on the plots in question. While these proceedings were pending, Smt. Khatoon Jannat Bibi expired on 8-1-1990 and soon thereafter, the defendant Nos. 1 and 2, who were the grandsons from the first husband of Smt. Khatoon Jannat Bibi started interfering in the possession of the defendants on the plots in question. In view of the aforesaid situation and interference, the defendant Nos. 3 and 4 filed an Original Suit No. 58 of 1990 against Asad Ullah and Samiullah [defendant Nos. 1 and 2] and an interim injunction dated 31-5-1990 was granted by the civil Court directing the parties to maintain status quo till the disposal of the suit and further restrained Asad Ullah and Samiullah [defendant Nos. 1 and 2] from interfering in the peaceful possession of the present defendant Nos. 3 and 4 in respect of the disputed property. Eventually, the suit was decreed on 5-8-1991 and Asad Ullah and Samiullah were permanently restrained from interfering in the possession of the land in question of the defendant Nos. 3 and 4.

(3.) IN the light of the aforesaid objections, the trial Court without considering the impact of the aforesaid objections, granted a temporary injunction in favour of the plaintiffs, on the sole ground, that there was a sale-deed in favour of the plaintiffs and that the defendant Nos. 3 and 4 had admitted that the plaintiffs were in possession and, on that basis, held that the plaintiffs had a prima facie case for a grant of temporary injunction. IN the miscellaneous appeal, the appellate Court, dealt at length and the objections raised by the defendant Nos. 3 and 4 was considered. The appellate Court concluded that the plaintiffs had concealed material facts, and did not disclose the name of the sellers, nor the sellers had a right to sell the property in question. The appellate Court further came to the conclusion that the plaintiffs illegally came into the possession of the property in question and therefore, no injunction could be granted in their favour against the true owners of the property in question.