HAFEEZA KHANNESHEEN Vs. NAZIR AHMAD MASOODI
LAWS(J&K)-1999-2-11
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 22,1999

HAFEEZA KHANNESHEEN Appellant
VERSUS
NAZIR AHMAD MASOODI Respondents

JUDGEMENT

Syed Bashir-ud-din, J. - (1.) Respondent No. 1 Nazir Ahmad filed civil original suit 88/ 95, against petitioner and other respondents for declaration, partition, possession and permanent injunction in respect of 30 kanals and 8 marlas of land situated at Manzahama Tehsil Beerawah District Budgam more specifically referred to in para 3 of the plaint. The suit is based inter alia on the ground that plaintiff's mother Mst Misra and her two sisters Hafiza and Zarifa succeeds to the suit property and through them the respondents and petitioner inherit mathrooqa property of their father, Gh. Rasool. The property is undivided and all three sisters are entitled to inherit the property in equal shares under personal law (Moham- madan Law). Plaintiff's mother Mst. Misra and defendants 2 to. 5's mother have died. The plaintiff and the defendants are entitled to their share on partition. The defendant No, 1 Hafiza who is in possession of her and plaintiff and other defendant's shares, is refusing to effect partition and to part with possession of the snares of plaintiff and other defendants. Hence the suit.
(2.) On 30.9.95 plaintiff moved an application before the trial court of Munsiff Magam for appointment of Receiver for the suit property with allegation that the suit property is being wasted and destroyed by the defendant. After the other side filed objections, the Court heard the matter and passed a reasoned order on 1.9.1997, allowing the petitioner's application with avowed object of protecting and preserving the suit property. But keeping in view the fact that non-applicant (defendant No. 1) being in possession of property, she was appointed as Receiver with direction to protect and preserve the suit property and to maintain the accounts and to deposit the sale proceeds in Court. Against this order of Munsiff Magam, non-applicant/defendant Hafiza filed an appeal before District Judge Budgam. The learned District Judge after hearing the parties and on perusal of record on consideration of matter, dismissed appeal, upholding the order of appointment of Receiver of the trial Court. This order was passed by District Judge on 25.10.1997. This order of 25.10.1997 of District Judge Budgam and order dated 1,9.1997 of Munsiff Magam, are impugned in this revision. The counsel for revision petitioner canvasses that orders passed by the trial court and as also the appellate court, are unjust. The suit has been filed after a long time after the death of the ancestor of parties. By appointment of Receiver respondent No. 1 has been forced out of possession of suit land. Petitioner has been thrown out of the land, even though she is Khananisheen daughter and has come to acquire and inherit property under custom. Being lawfully in possession, she could not be ousted under cover of the impugned order. The allegation of damage or wastage is not based on facts. The trial Court as well as appellate court has not passed the order in accordance with law.
(3.) The counsel for respondents submits that the order passed by the trial Court and confirmatory order of appellate court have been handed down in accord with provisions of order 40 Rule 1 CPC. The appointment of Receiver in this case is just and legal, as the property was in danger of being wasted and damaged. The parties are entitled to inherit the subject matter of the suit, the matroka land estate of the last land holder, Gh. Rasool who happens to be father of petitioner and grandfather of respondents.;


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