MAJRUDDIN Vs. QAMARUDDIN

JUDGEMENT

(1.) THIS is an unfortunate and avoidable litigation with regard to the house property in suit between the three sons (appellants herein) on one side and the father (respondent) on the other.

(2.) THE trial Court by impugned order dated 28.1.1998 has passed a temporary injunction in a mandatory form directing the appellants to deliver possession of the portion of house property in their occupation to the father on a prima facie finding that the plaintiff -father was dispossessed from part of the suit house during pendency of the suit. In order to find out whether grant of an injunction in mandatory form was justified in the circumstances of the case, it would be relevant to examine the facts pleaded in the plaint by the respondent -father as the plaintiff in the suit. According to his own pleading, the house in suit was held by Hussain Bux and his son Badruddin. After death of Hussain Bux, it came in possession of Badruddin and his son present respondent (plaintiff) Qamaruddin. The mother of the plaintiff Sumra Bi died some time between 1909 and 1910. After her death, Batasiya Bai alleged to be a maid -servant, dime to live in the house. The plaintiff denied any valid marriage of his father with Batasiya stating that she was a Hindu and without conversion there could not have been a valid marriage with Batasiya Bai. According to the plaintiff, he came to be employed in police department and purchased agricultural land in village Chandora, Tahsil Multai, from that income he made further construction in the suit property and built a two storied Pakka House. In 1942, the plaintiff retired from his service in the Police department and started business in part of the suit house. In 1985 after he had lost his wife Shakimun Nisa, he left the shop, business and the house to the care of his younger son Ahauddin and shifted to Pandurna. Thereafter, dispute with regard to the title and possession of the suit house arose between him and his other sons. The cause of action for filing the suit is said to have arisen in 1991 as the present appellants as his sons claimed title to the suit property on the basis of a Meharnama executed by Badruddin in favour of Imtiyas Bi in the year 1938 (annexed as Document D -1 with the memo of appeal) and a will executed on 19.4.1948 by Imtiyas Bi, widow of Badruddin, in favour of the present appellants. The plaintiff filed the suit for declaration of his title and injunction.

(3.) AFTER the remand of the case, the learned trial Judge by mainly placing reliance on the averments of the parties in Nazul proceedings under section 51 of the M.P. Land Revenue Code and the earlier criminal proceedings between them, came to the tentative conclusion that on the date of presentation of the suit the plaintiff was in sole occupation of the suit house and has been dispossessed from the portions mentioned above during pendency of the suit. It is on the above ground that the learned trial Judge thought it fit to grant in his favour an injunction in mandatory form. In granting the injunction in mandatory form, the learned trial Judge lost sight of the fact that although some value may be attached to pleadings and averments in the criminal case and the maintenance proceedings between the parties, injunction in mandatory form should not normally be granted unless the plaintiff prima facie makes out a strong case and at the same time other two ingredients i.e. balance of convenience in his favour and causing of irreparable' injury to him are also made out.