Dismissed

Mohd. Saleem and 2 Others v. Smt. Hafizan and 4 Others

Allahabad HC1 Mar 2024/65/2024

Case brief

AI extract

What is this about?

First appeal against interim injunction granted in a property suit between co-heirs claiming by succession and by a will. The court held that allowing construction would irreparably affect one side, found no illegality in the injunction order, dismissed the appeal, and sought expeditious trial.

What the court decided

AI extract

Mohd. Saleem and 2 Others Vs Smt. Hafizan and 4 Others — Specific Performance | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:18748

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Court No. - 29

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Case :- FIRST APPEAL FROM ORDER No. - 65 of 2024

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Appellant :- Mohd. Saleem And 2 Others Respondent :- Smt. Hafizan And 4 Others Counsel for Appellant :- Manish Mishra,Varun Pratap Singh

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Hon'ble Arun Kumar Singh Deshwal,J.

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Heard learned counsel for the appellants.

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Present appeal has been filed for the following relief:

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"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to set aside the order dated 20.01.2024 passed by Learned Civil Judge (Senior Division), Malihabad, Lucknow in Original Suit no. 2437 of 2023 'Smt. Hafizan and others vs. Mohd. Saleem and others', by which application for injunction under order 39 rule 1 & 2 C.P.C. filed by the Plaintiffs/Respondents has been allowed and further be pleased to restrain the respondents from interfering with the peaceful possession of the appellant over the house in dispute."

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Contention of learned counsel for the appellants is that the appellantsdefendants and respondents-plaintiff are the successors of late Mohd. Shami and the dispute is regarding the property of Mohd. Shafi (brother of Mohd. Shami). The plaintiff-respondents have filed suit for permanent injunction against the appellants on the ground that after the death of Mohd. Shafi, his property devolved on Mohd. Shami. Plaintiffs as well as defendants have become co-sharers of the property but the defendants have been interfering in their possession and trying to make construction thereon. It is further contended by learned counsel for the appellants that property belongs to appellants-defendants because during life time, Mohd. Shafi has executed a will deed dated 02.08.2000 in favour of appellant no.2 but the court below granted interim injunction in favour of the plaintiffs on the ground that name of the ancestor of plaintiffs as well as defendants has been recorded in the revenue record on the basis of succession after the death of Mohd. Shafi and the defendants, who are claiming the ownership of the aforesaid property on the basis of will of Mohd. Shafi have not applied for mutation for the last 20 years. Therefore, suspicious circumstances arise regarding the will of the

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defendants which is required to be cleared by them during the trial.

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After hearing learned counsel for the appellants and on perusal of record, it appears that both the parties are legal heirs of Mohd. Shami and plaintiffs-respondents have been claiming the right over the property on the basis of succession while the defendants-appellants have been claiming the right on the basis of will deed executed by Mohd. Shafi in the year 2000. That will is yet to be established.

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In such circumstances, if any party is allowed to make construction that will irreparably affect the other side. Even on the basis of revenue record, it is clear that the name of common ancestor of appellants and respondents has been recorded in revenue record regarding the property in dispute. Therefore, it would be appropriate that during the pendency of suit, no party shall change the nature of the property by making any construction or transfer the same. Appellants are free to adduce any evidence in support of their case during trial. Therefore, this court found that court below while passing the impugned order dated 20.01.2024 validly applied the criteria for granting injunction, therefore, this court does not find any illegality in the impugned order.

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Therefore, the present appeal is dismissed .

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As the dispute is between the real brothers, it is expected that the court below will decide the suit, as expeditiously as possible, without giving any unnecessary adjournment to any of the parties.

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Order Date :- 1.3.2024 S.Chaurasia

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Digitally signed by :- SHUBHAM CHAURASIA High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Saleem and 2 Others v. Smt. Hafizan and 4 Others

Case brief

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Mohd. Saleem and 2 Others v. Smt. Hafizan and 4 Others

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