IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE HIMANSHU JOSHI

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ON THE 13 OF NOVEMBER, 2025 MISC. APPEAL No. 184 of 2022 TAZIM ALI KHAN AND OTHERS Versus ANAND SARAN AND OTHERS Appearance:

Shri Yash Nitin Nasery - Advocate for the appellants.

Shri Saket Malik - Advocate for the respondents.

ORDER By way of the present Appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure, challenge has been made to the order dated 22/12/2021 passed by the Principal District Judge, Chhindwara, District- Chhindwara in Civil Suit No.8 of 2021, whereby the application for grant of temporary injunction filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure by the original plaintiffs / respondent nos.1 and 2 has been allowed.

2. For the sake of brevity and convenience, the parties shall be referred by their rank in the trial Court.

3. The present Misc. Appeal has been preferred at the instance of the original defendant no.6 of the suit. The suit has been instituted at the instance of the original plaintiffs/respondent nos.1 and 2 bearing Civil Suit No.8 of

2021, seeking relief of declaration and injunction.

4. The facts of the case are that One Shaukat Jaha Begum owns and possesses plots bearing no 7/2 Rakba 15.594 square feet, plot bearing no. 7/24 admeasuring 3600 square feet and plot no. 11/4 admeasuring 7200 square feet total admeasuring 26.394 square feet (hereinafter referred to as ‘disputed property’). The suit property is adjacent to the house of the plaintiffs. As per the suit averments, on the holy day of Eid-ul-Fitr on 29/07/2014, the owner and possessor of the suit property, has executed an oral Hibanama in favor of her son Muzahid Ali. This oral Hibanama has been executed in favour of all the family members and the same has been duly accepted by Muzahid Ali. Soon after the Hibanama, son Muzahid Ali has taken over the possession of the suit property also. It is also stated in the suit that on 05/09/2017 Shoukat Jaha Begum has also executed a yadadastanama and an affidavit to confirm the execution of earlier oral hibanama. The suit further reveals that the family of Muzahid Ali and the plaintiffs were enjoying healthy family relation amongst them and with the sole intention of taking care of the suit property, Muzahid Ali has handover the suit property to the plaintiffs. On the auspicious day of bakri-eid i.e. 02/09/2017 Muzahid Ali, out of love and affection, with the plaintiffs, had executed oral Hiba in favor of the plaintiffs. By this Hiba all the rights, title, interest and possession of the suit property had been handed over to the plaintiffs.

5. It is the case of the plaintiffs that since 02/09/2017, they have been in peaceful possession of the suit property on the basis of the oral hibanama. It is also stated that the plaintiffs have developed the suit property by constructing a compound wall, wire, fencing and gate. The plaintiffs are also regularly paying Nazul tax every year. The cause of action for filing the suit arose when the defendant no. 6 Tazim Alik Khan allegedly attmepted to take possession of the suit property on the basis of forged Hibanama dated 21/05/2017. The suit was supported by an application under Order 39 Rules 1 and 2 read with section 151 of the CPC seeking to restrain defendant no. 6 from taking forible possession and from creating third party rights over the suit property.

6. Defendant nos. 5 and 6 entered appearance and denied the averments of the suit. A reply to the application under Order 39 Rules 1 and 2 CPC was also filed. It was specifically objected in the suit that a hiba cannot be executed by a Muslim in favour of a non-Muslim and if such hibanama is executed, it requires mandatory registration. It is vehemently argued that defendant no. 6 being the grandson of Shoukatjaha Begum is the beneficiary of the hibanama dated 21/06/2017 and the same is valid. After considering all the submission and material on record the learned trial Court, vide impugned order