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IN THE HIGH COURT OF RAJASTHAN
Pushpendra Singh Bhati, J.
Mohammed Faruq - Appellant
Versus
Toqir Ahmed - Respondent
Civil Writ No. 10676 of 2018
Decided On : 08-08-2018
CIVIL PROCEDURE CODE - ORDER 22 RULE 10(2) - IMPLEADING PARTY TO EXECUTION PROCEEDINGS - EXECUTION FIRST APPEAL - DISMISSAL - TEMPORARY INJUNCTION - REJECTION - VALID DECREE IN FAVOUR OF RESPONDENT - NO INTERIM ORDER PROTECTING RIGHTS OF PETITIONERS - SAME CAUSE OF ACTION - SUIT NOT ENTERTAINABLE - NO CASE FOR GRANT OF TEMPORARY INJUNCTION.
Fact of the Case:
Petitioners filed a suit for declaration and permanent injunction to the extent of 1/3rd share in the house in question. The respondent filed an application under Order 7 Rule 11 CPC before the learned trial court which was rejected. The respondent filed S.B. Civil Revision Petition No.166/2017 before this Hon'ble Court and the same is still pending for consideration. The objection filed under order 21 rule 97, 101 r/w section 151 CPC by the petitioners has been dismissed by the executing court vide order dated 3.6.2017. Being aggrieved by rejection of objection, the petitioners filed execution first appeal bearing no. 6/2017 before this Hon'ble Court. After hearing both parties, this Hon'ble Court dismissed stay application of the petitioners vide order dated 22.1.2018. The petitioners assailed aforesaid order by way of filing D.B. Civil Special Appeal no.3/2018 before the Hon'ble Division bench which was dismissed vide order dated 15.2.2018. The learned trial court dismissed the application for temporary injunction filed by the petitioners herein vide order dated 14.3.2018. The petitioners herein filed appeal against aforesaid order before the Additional District Judge No. 1, Bikaner.
Finding of the Court:
The court found that this is not a simple dispute where the sale of the property by the co-sharer has been made but it is a dispute where litigation has been going on since 1987 and, therefore, the parties are in continuous litigation and this is 4th round of litigation going on between the parties in same or other forums. The court also found that the orders passed by the learned Courts below are justified and at this stage, when the execution proceedings in the previous suit were contested by the petitioners and the same have not been stayed by any Court including this Court, thus no interference is called for in the order passed by the trial Court rejecting the temporary injunction which has been affirmed by the appellate Court.
Issues: Whether the suit is maintainable?
Ratio Decidendi: The court held that the suit is not maintainable as the petitioners have a valid decree in their favour and in the execution proceedings, the same issues as raised in the present petition, were raised and until now, there is no interim order protecting the rights of the petitioners and, therefore, for the same cause of action, the suit cannot be entertained and if at all, it is to be entertained, no case for grant of temporary injunction is made out.
Final Decision: The writ petition was dismissed.
JUDGMENT
Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition praying the following reliefs :-
"It is, therefore, most respectfully prayed that the a) Writ Petition may kindly be allowed with cost throughout; and
a) both the impugned order/judgment dated 14.03.2018 (Annex. P/5) passed by Learned Civil Judge, Bikaner and impugned order/judgment dated 25.05.2018 (Annexure P/6) Passed by Learned Additional District Judge No. 1 Bikaner may kindly be quashed and set aside ; and
b) TI Application filed by the petitioners may kindly be allowed as prayed ; and
c) During the pendency of this writ petition status quo of the property in question may kindly be ordered to maintain;"
2.
2.1 Brief facts of the case as noticed by this Court are that the present dispute pertains to a plot measuring 195 Sq. yard situated at Dhobi Talai, Bikaner (Rajasthan) originally owned by Gafoor Khan. After death of Gafoor khan on 2.3.1970, Smt. Nasiban W/o. Late Gafoor khan sold out disputed plot to Mohd. Ibrahim i.e. defendant no. 1 herein through registered sale deed. Thereafter the defendant no. 1 herein let out one room to Nishar Ahmed i.e. defendant-respondent no. 4 herein (relative's brother) and the other room to Sardar @ Sidara (defendant-respondent no. 2 herein) for residential purposes.
2.2 Despite having registered sale deed executed in favour of the defendant no. 1 herein, Smt. Nasiban W/o. late Gafoor khan along with her two daughter namely Sarifan (defendant no. 3 herein) and Sayara i.e. mother of present petitioners-plaintiffs herein, filed a civil suit no.107/1987 before the learned trial court for eviction & possession against the Nishar Ahmed as well as Sidari @ Sidara alleging therein that they are licensees of the Smt. Nasiban without impleading father in law of defendant no.1 herein as party despite the fact that the disputed property was already sold to him. During pendency of suit Smt. Nasiban (plaintiff in first suit) died and as her two daughters were already on record and defendant no. 1 also died but no such application was made to bring LR's of Sidari @ Sidara on record. Subsequently her name was ordered to be deleted from array of parties. The said suit was decree ex-parte against Nishar Ahmed only on 21.9.1987.
2.3 An execution petition was filed by Sayara (Mother of present petitioner) & Sarifan (defendant-respondent no. 3 herein) against Nishar Ahmed (defendant-respondent no. 4 herein). Nishar Ahmed (defendant-respondent no. 4 herein) filed an objection stating therein that the plot in question sold out by the Smt. Nasiban to Mohd. Ibrahim (Father in law of defendantrespondent no. 1 herein) on 02.03.1970 through registered sale deed and he is licensee of the Mohd. Ibrahim and thus, Mohd. Ibrahim is only owner of plot in question. Therefore, he may not be dispossessed from the plot in question.
2.4 When the Sale Amin of the trial court went to take possession, Nishar Ahmed informed Mohd. Ibrahim (Father in law of respondent no. 1 herein) about the suit as well as execution and hence, Mohd. Ibrahim filed an application before the executing court stating therein that he filed a suit for declaration of title, permanent injunction and declaration of judgment & decree dated 21.09.1987 as null and void. Therefore, the execution proceeding may kindly be stayed. After hearing both the parties, the learned executing court was pleased to stay the execution proceeding until the final decision of suit filed by the Mohd. Ibrahim (father in law of respondent no. 1 herein).
2.5 Ibrahim (father in law of respondent no. 1 herein) filed a suit no.174/88 (702/93) against Sayara (Mother of present petitioner), Sarifan (respondent no. 3 herein) and Nishar Ahmed (respondent no. 4 herein) for declaration of title, permanent injunction and declaration of judgment & decree dated 21.09.1987 passed in the first suit filed by Smt. Nasiban and her daughters against the Nishar Ahmed as null and void. Sayara had expired before filing
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