PETlTlONERS W‘P. No.3206 of 2003 1. Kutubuddin (Dead), through ”As Legai Heh’s Vahiduddin, aged about 5O years; Sirajuddin, aged about 46 years; Shahabuddin, aged about 40 years; AH son of Late S'hri V” Kutubuddin. Smt. Shahnaz Bano, aged about 3G years, widow cf :ate Shri Jalaluddin (predeceased son of £ate Shri Kutubuddin) Roshan, aged about 3 years son of rate Shri Jalaluddin: minor, through natural guardian mother Smt. Shahnaz Bano All residents of Gani Line, h Rajnandgaon (CG Smt. Hamida Bano, aged about 48 years, D/o late Shri Kutubuddin, wife of Shri Khalik; Smt. Fahmida Bano, aged about 45 years, D/o late Shri Kutubuddin, wife of Shri Fazill Both residents of Sabji Mandi, Mangalwara, village and post Harda, District Hoshangaba (MP) Farida Bano, aged about 42 years, D/o late Shri Kutubuddin wife of Shri Sirajuddin‘ g @ Maniyaji, resident of Station Road, Mugalon Ka Kuan, House of Maniharo, Fatehpur, Shekhavati, District Seekar (Rajasthan) Samsuddin, aged about 50 years, son of late Hajidin, Both are resident of Ganjline, Rajnandgaon (Chhattisgarh) x HIGH COURT OF CHHATTISGARH AT BILASPUR A. ) Smt. Bismilla Bee, aged about 5O years, wife of Shri Nasruddin, resident of Supela, Bhilai, District Durg (CG) 3. -Versus- RESPONDENTS 1. Karamchand Dakaliya, aged about 50 years, son of Shri Amarchand Dakaliya, resident of Rajnandgaon (CG) Sarmuddin, aged about 55 years. sdn of late Hajiddin, 2. resident of Rajnandgaon (Chhattisgarh) x” Present' S'hri P.K.C. Tiwari, Sr.‘ Advocate with Shri Rakesh Thakur, Advocate for the petitioners Shri HB Agrawai, Sr. Advocate with Ms. indu Rani 'Niukharjee, Advocate for respondent No.1. 0 R D E R (2-7-2010) Dhirendra Mishra. J. 1. By this petition, the petitioners have impugned the order of‘Annexure- P/1 (wrongly referred to as Arfnexure-Pf2 in the reiief clause 7.2 of the petition) whereby teamed District Judge. Rainandgaon has aiiowed misceilaneous civil appeal preferred by the respondents and set aside the order of learned Civil Judge vide Annexure—P/2. 2. Briefly stated facts of the case are that in a suit, tiled by petitioner No.3 against respondent No.2 Sarfuddin; Kutubuddin. petitioner No.1 (dead) and Shamsuddin, petitioner No.2, judgment and decree dated 24/4/98 was finally passed by the learned 1st Additional District Judge, Rajnandgaon in civil appeal No.13-A/96 and it was held that the suit house was purchased by father of the plaintiff and as per Mohammedan Law. she is entitled for share. Respondent No.2 \ \ //\ / \ W3 Sarfuddin (wrongly mentioned in the petition as 'Sarmuddin’) has no right towseii any part of the suit propetty to any other person without getting it legally partitioned. The above judgment and decr/ee has attained nnality as the same was never challenged by any of the parties to the suit. The petitioners herein tiled a suit for declaration and perpetual iniunction against the respondents and in the said civil suit, an application for temporary ingunction was also fiied praying for restraining Sarfuddin from transferring the possessionhféfxvthe suit property to Karamchand Dakaliya (respondent No.1) on the basis of registered sale deed dated 6-1-2000 and further prayed for restraining the defendants from interfering with the possession of the suit property. . Learned Civil Judge allowed the application for temporary injunction and directed the defendants to maintain status quo till the decision of the suit filed by the plaintiff. However, miscellaneous. civil appeal .L. preferred by the respondents against the above order has been allowed by the impugned order and the order of Annexure-PI2 has been set aside. Shri P.K.C. Tiwari, learned senior counsel appearing on behalf of the petitioners, submitted that indisputably respondent Sarfuddin was restrained by learned Additional District Judge vide judgment‘and decree dated 24-4-98 from transferring any part of the suit propeity without getting it Iegally partitioned in accordance with Mohammedan Law. There is no dispute that the partition has not been effected since then. Sarfuddin in violation of the judgment and decree passed by the ‘ civil Court executed a sale deed on 6-1-2000 without getting the property partitioned in favour of respondent No.1. When defendant f / .\ i/s . No.1 on the strength of sa‘e deed executed by respondent No.2 tried m obtainwossession of the suit property in collusion with Sarfuddin, the instant suit was filed, The frial Court, after going through the documentsi held that there is no documentary evidence adduced by Sarfuddin to establish that after execution of the saie deed dated 6—1— 2000; defendant No.2 is in possession and thus, considering the judgment and decree passed by the learned Additional District Judge (Annexure-P/4), it has been held that the plaintiff has prirr‘l‘aly’facie case and a direction to the defendants to maintain status quo has been issued. However, learned District Judge, only on the'b‘asis of recital in the sale deed dated 5-1-2000 executed by Sarfuddin; has held that possession of the property was delivered by vendor Sarfuddin to purchaser respondent No.1 (Karamchand Dakaliya) and set aside the reasoned order of the trial Court. a Shri H.B. Agrawal, learned senior counsel appearing on behalf of respondent No.1, argued that respondent No.1 preferred an appeal against the order of the trial Court, as the trial Court by passing order of status duo has also observed that there is no documentary evidence to establish that after execution of the sale deed, Sarfuddin delivefed the possession to the purchaser. From perusal of the sale deed, it would be evident that possession of the disputed premises was delivered to the purchaser when the property was sold. He further argued that since the petitioners did not take any step for getting the property partitioned after the decree was passed in their favour in the year 1998, Sarfuddin cannot be prevented from transferring the property. \,e .i ¢ Wt- 6. Heard learned counsel for the parties. Perused the record as also the orderas passed by the trial Coutt and the impugned order. 7. The trial Court, after considering the documents filed by the respective parties; has recorded a categorical finding that there is no documentary evidence adduced by the respondents to show that Sarfuddin was in exclusive possession over the suit property ‘or any portion of the suit property. Considering the decree passed by the learned Additional ‘ “32/ District Judge restraining Sarfuddin from transferring this suit property without valid partition under the Mohammedan Law, it has been further held that the purchaser would not be entitled to join the possession and enjoyment of the suit property. Accordingly; prima facie case has been held in favour of the plaintiff. lt has been further held that the purchaser has right to tile suit for partition and separate possession on " ’ , the basis of sale deed executed by Sarfuddin, thus balance of convenience and irreparable injury are in favour of the plaintiff. However, learned Additional District Judge, without considering the above reasoning of the trial Court, only on the basis of recital in the sale deed, held that Karamchand Dakaliya has obtained possession of the suit property on the date of sale deed itself and considering the circumstances of the case, it was further held that the trial Court was L i not justified in ordering status quo. 8. The order of learned District Judge has been passed without considering the reasons assigned by learned Civil Judge, Learned District Judge has failed to consider that there was only an order of . status quo passed by the trial Court, meaning thereby if respondent Karamchand Dakaliya had already obtained possession on the on , strength of sale deed, in that case, there was no occasion for the respondents to prefer any appeal against the order of the trial Court, which only directed for maintenance of status quo. 9. F'or the aforesaid reason, the order passed by the learned District Judge cannot be sustained and'the same deserves to be set aside. 1o.ln the result; the writ petition is ailowed; the order of Annexure—P/1 is set aside and the order of Annexure—P/Z passed by theg£ivil Judge, Class-2, Rajnandgaon is restored. Sd]- Dhirendra Mishra Judge Barve