BHAGELU MIAN Vs. MAHBOOB CHIK

JUDGEMENT

(1.) The petitioner has come up against an order refusing to grant ad interim injunction against the defendants from taking possession of a property in execution of a decree.

(2.) The petitioner having been unsuccessful in a proceeding under Order 21 Rule 97 of the Civil P. C. (hereinafter referred to as 'the Code') filed the present suit under Order 21 Rule 103 of the Code. The circumstances which gave rise to the suit are as follows. According to the petitioner the house in suit originally belonged to one Md. Hussain who granted a Rehan to one Kupan Rai in the year 1924 who in his turn had assigned his interest to Sobrati (father of the plaintiff) and his brother Teju and delivered possession to them. This was in the year 1926. In the year 1936 again Md. Hussain granted a second Rehan to Sobrati and Teju. By virtue qf these transfers Sobrati and Teju continued to be in possession. In the year 1945 they partitioned their properties and the house in dispute fell to the share of Sobrati, father of this petitioner and after him the petitioner came into and continued to be in possession. There was, however, a partition suit filed by defendant Mahboob against the aforesaid Teju and others. The dispute between the parties was referred to arbitration. As a result there was an award and a decree on its basis. Mahboob, therefore, levied execution and there was an order for delivery of possession. During the course of such delivery there was obstruction by the petitioner giving rise to the proceeding under Order 21 rule 97 which was decided adversely to the petitioner and hence the suit.

(3.) The defence case, on the other hand, is that the property belonged to the father of Md. Hussain, namely Sher Ali who has transferred the same as dower debt to his wife Rahiman in the year 1314 Fs and Rahim had made a gift of the said property to her grandson Sher Mohammad. The defendants thus say that the plaintiff had acquired no title by virtue of the mortgage executed by Md. Hussain.