MOHD RAFEEQ Vs. SHANTI SWAROOP SURI

JUDGEMENT

(1.) THE plaintiff Shanti Swarup Suri purchased a property No. G-1 situate Tauria Jeewan Shah, Fort Zone, Cantonment, Civil Lines, Jhunsi from one Abdul Rasid vide a registered sale-deed dated 25. 1. 1972, and since then, is in possession through its tenants. The plaintiff alleged that the defendant No. 2, Noor Mohammad Shah had no right, title or interest in the property in question and illegally executed a sale-deed dated 9. 1. 1985 in favour of defendant No. 1 Mohd. Rafeeq. The plaintiff further alleged that the sale deed so executed by the defendant No. 2, in favour of defendant No. 1, was wholly illegal and was also made without any consideration and was therefore null and void. The plaintiff, therefore, filed by the suit praying for a declaration that he should be declared the owner of the property in question and in possession through its tenants and that the sale-deed dated 9. 1. 1985 executed by defendant No. 2 in favour of defendant No. 1 be declared null and void.

(2.) THE defendant No. 1, Mohammad Rafeeq contested the suit alleging that Abdul Rasid was not the owner of the property in question and had no right, title or interest to sell the property in favour of the plaintiff. The defen-dant urged that the Abdul Rasid was a vagabond was implicated in several criminal cases. The defendant however admitted that the father of Abdul Rasid was the Sajjada Nasin, i. e. , the Manager and was only entrusted to manage the property; and had no right to transfer the title of the deity namely, Dargah Jeewan Shah to any other person. The defendant contend that Abdul Gani Shah was the original owner and had executed a registered Will dated 30. 8. 1964 stating therein that upon his death, a committee would consider whether his son, Abdul Hamid Shah was competent to inherit and manage the property, and if the committee found that his son was competent, in that case, he would be appointed as the Sajjada Nasin of the property. If the committee felt that he was not competent, then the committee would appointed a Sajjada Nasin from amongst the persons mentioned in the Will. The defendant alleged that after the death of Abdul Hamid Shah, in 1971, the defendant No. 2 became the manager and had validly executed the sale deed in favour of defendant no. 1 and was in possession. The defendant alleged that the plaintiff was never in possession of the property in question. The defendant No. 2 Noor Mohammad Shah did not appear before the Trial Court and the suit proceeded ex parte against him. The said defendant did not file any written statement.

(3.) ON the basis of the pleadings of the parties, various issues were framed. The Trial Court, after considering the evidence, and after considering the pleadings, dismissed the suit. The Trial Court held that the plaintiff could not prove that Abdul Rasid was the owner nor could it prove that he had the authority to execute the sale-deed and that the receipts issued by the Cantonment Board or the Tax assessments made by the Nagarpalika in favour of the plaintiff was not sufficient to prove his ownership of the property in question. The Trial Court also found that the defence taken by the defendant that the property belonged to the deity namely, Dargah Jeevan Shah was incorrect. The Trial Court held that the defendant No. 1 had not filed any evidence to show that the ownership of the property was that of the Dargah. Further, the sale-deed of 1985 executed in favour of defendant no. 1 by defendant No. 2 did not indicate that the defendant No. 2 had executed the sale-deed as the Sajjada Nasin of the property or that the property belonged to the Dargah Jeewan Shah. The Trial Court found that the defendant No. 2 had allegedly sold the property in favour of defendant No. 1 in his personal capacity. The Trial Court found that upon the death of Abdul Gani Shah, Abdul Hamid Shah was validly appointed as the Sajjada Nasin and upon his appointment, the terms and conditions, as contained in the will, came to an end. Consequently, the question of appointment of defendant No. 2 upon the death of Abdul Hamid in 1971 did not arise nor any occasion arose for the defendant No. 2 to be appointed as the Sajjada Nasin. The Trial Court gave a categorical finding that the defendant No. 2 was never appointed as the manager of the Dargah now was the owner of the property by way of inheritance or otherwise and therefore, had no right to execute the sale-deed in favour of defendant No. 1. In view of the aforesaid findings, the suit of the plaintiff was dismissed.