Dismissed

Saida Begum v. Sk.Sekaruddin

Orissa HC10 Dec 2018CMP/323/2018

Case brief

AI extract

What is this about?

This court dismissed a petition challenging the dismissal of an appeal in a property suit involving claims based on an oral gift by a Mohammedan law owner versus a registered sale deed, upholding the lower court's refusal of an injunction due to lack of prima facie possession and balance of convenience in favor of the respondents.

What did the court decide?

Petition dismissed; no interference with the order dismissing the appeal in the suit for permanent injunction.

Saida Begum Vs Sk.Sekaruddin — Property and Title | Orissa HC (2018)

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CMP No.323 of 2018

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4 10.12.2018

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Mr. Sambeet Pattanayak learned counsel submits that he has instruction to appear on behalf of the petitioner.

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Heard Sambeet Pattanayak, learned counsel for the petitioner.

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This petition challenges the judgment dated 30.11.2017 passed by the learned District Judge, Balasore in FAO No.144 of 2015 whereby and whereunder the learned District Judge dismissed the appeal and confirmed the order dated 19.9.2015 passed by the learned Civil Judge (Senior Division), Jaleswar in I.A No.38 of 2014.

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Learned District Judge has dismissed the application and assigned the following reasons;

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“…It seems that the appellant has based her claim of title on the basis of oral gift said to have been made by Sk. Tairuddin in her favour in the year 1991. It is permissible under Mohammedan Law for oral gift by way of declaration and delivery of possession. On the other hand, the basis of claim of the respondents with regard to their title and possession is on the strength of Registered Sale Deed No.2081 dated 5.7.1974. Prima facie case is not akin with prima facie title which will be decided at the trial. The validity of oral gift by way of alleged declaration of Sk. Tairuddin and delivery of possession is a matter to be adjudicated during the trial. Such adjudication cannot be made at this stage. Since the oral gift is permissible under

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Mohammedan Law and the appellant has come up with the suit on the basis of oral gift accompanied by delivery of possession, it can be said that the appellant has a fair question to be raised with regard to her right in respect of the suit land. Therefore, the appellant has a prima facie case in her favour. The findings of the learned trial Court on that score appears to be correct.

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In fact, the appellant has not filed any document to show her possession over the suit land. It reveals from the ROR that Sk. Tairuddin was owner in possession over the suit land recorded under Khata No.154. It prima facie shows from the Registered Sale Deed that the suit land was sold away by Sk. Tairuddin in the name of respondent no.1. The order of mutation of Tahasildar in Mutation Case No.7415 of 2014 reveals that order was passed to mutate the suit land in the name of respondent No.1. Of course, the question of possession is to be finally determined by the learned trial Court after closure of evidence from both the sides, yet in absence of any document showing possession of the appellant or any oral evidence to that effect; since it prima facie appears that the respondent No.1 is in possession from the documentary evidence, the comparative mischief would be more in favour of the respondents in case of an order of injunction then that of the appellant, if injunction is granted. Since the respondents are prima facie shown to be in possession over the suit land, no injunction can be granted. The learned trial Court on consideration of the materials on record in different perspective has rightly said that the balance of convenience does not lie in favour of the appellant. In view of the above discussion, the respondents would be put to much

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hardship and they will sustain irreparable loss if injunction is granted. Therefore, this Court does not find that the appellant has able to establish the balance of convenience and irreparable loss in her favour. So far as apprehension of the appellant regarding the probability of alienation at the behest of the respondents, the lis pendense transferee will be bound by the decree in terms of Section 52 of Transfer of Property Act. In case of raising of construction by the respondents, in case of decree in favour of the appellant, the respondents will not be allowed to claim equity.”

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The reasons assigned by the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution of India.

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Accordingly, the petition is dismissed.

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Dr.A.K.Rath, J.

Saida Begum v. Sk.Sekaruddin

Case brief

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Saida Begum v. Sk.Sekaruddin

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