AB. QAYOOM Vs. WAHIDA BEGUM & ORS.

JUDGEMENT

(1.) This petition filed under Sec. 104 of Constitution of Jammu and Kashmir corresponding to Art. 227 of Constitution of India seeks setting aside of order dated 09.02.2015 passed by learned District Judge Bhaderwah by virtue whereof appeal preferred against order of ad-interim injunction dated 15.09.2014 passed by Munsiff Gandoh in Civil Suit titled Abdul Qayoom & Ors. Vs. Wahida Begum has been allowed, application for temporary injunction has been dismissed and respondent No. 1 has been directed to file an undertaking to the effect that in the event of present petitioner succeeding in his claim in the suit, respondent No. 1 shall pull down the structure and hand over vacant possession of the subject matter of the suit the present petitioner.

(2.) It appears that the present petitioner filed a suit seeking declaration that the Gift Deed dated 04.06.2013 executed by respondent No. 2 in favour of respondent No. 1 in respect of land measuring 1 kanal 10 marlas falling under khasra No. 161 situated at village Bhatyas Tehsil Gandoh District Doda was null and void and inoperative as against rights of petitioner who also set up a claim for right of prior purchase over the suit land together with proforma respondent. Petitioner also sought relief of possession of the subject matter of suit and also prayed for a decree of permanent injunction restraining respondent No. 1 from raising construction upon or changing the nature of subject matter of the suit. Petitioner claimed that he along with respondent No. 2 and the proforma respondent were co-sharers and in a oral private partition, the subject matter of suit had been settled on respondent No. 2 who had sold the same to respondent No. 1 through the medium of registered Sale Deed dated 04.06.2013 camouflaging it as a Gift Deed to defraud the Sub-Registrar and also defeat rights of preemption vested in petitioner and proforma respondent. It is claimed that respondent No. 1 was not related to proforma respondent and assertion in this respect in the plaint was false. It is further claimed that respondent No. 1 intended to raise construction on the subject matter of suit which was an agricultural land. Respondent Nos. 1 and 2 contested the suit by denying the allegations in the plaint. Denying the factum of petitioner being co-sharer of the subject matter of the suit along with respondent No. 2 and proforma respondent, it was pleaded that in the private partition dating back to three decades the subject matter of suit had fallen to the share of respondent No. 2 who was competent to alienate it in favour of respondent No. 1. Denying the allegation of Gift Deed dated 04.06.2013 as a sham transaction in the nature of sale it was pleaded that the Gift Deed was validly executed and there was no sale. Along side the suit petitioner filed an application for grant of temporary injunction. Learned Munsiff, trying the Suit, was of the view that the petitioner had made out a prima facie case for relief in his favour, balance of convince too was in his favour and that he would suffer irreparable loss if preventing relief is not granted. Thus, order 15.09.2014 temporarily restraining respondent No. 1 came to be passed. Same was assailed in appeal preferred before learned District Judge Bhaderwah who found that the petitioner, respondent No. 2 and the proforma respondent were real brothers and in record of Girdawari all the three brothers were reflected as being in possession of their separate shares allotted under an oral family partition. The appellate Court found that joint status stood severed and the subject matter of suit had fallen to the share of respondent No. 2 which was duly reflected in record of Girdawari. Learned District Judge also found that the petitioner had admitted the factum of suit land having fallen to the share of respondent No. 2 in his suit. The Appellate Court was also of the view that the preferential right of prior purchase being a weak right could be defeated in a legitimate manner. Thus, the appellate Court was of the view that there was no prima facie case made out in favour of the petitioner. However, as a matter of abundant caution, while allowing the appeal, it insisted upon filing of an undertaking by respondent No. 1 to safeguard the legitimate interests, if any, of the petitioner.

(3.) Heard learned counsel for the parties and perused the record.