Pankaj Mithal, J. - (1.) EXECUTABILITY of the decree of permanent prohibitory injunction drawn on the basis of a judgment and order passed by the Court in exercise of power under Order VIII Rule 10 CPC as against only one of the defendants to the suit merely for not filing written statement of his defence within time fixed and allowed though the other defendant had filed his defence, is the subject matter of adjudication in the present writ petition. Facts of the case :
(2.) ONE Riazuddin had two sons, Nabiullaha and Habibullaha. Nabiullaha had a son Waliullaha and a daughter Khatoon Jannat Bibi. Habibullaha had one son Hamidullah. As Muslim law permits marriage between first cousins, Hamidullaha married Khatoon Jannat Bibi. Hamidullaha had a son Asadullaha who died on 15.7.1995 leaving behind his widow Smt. Jamil Kazami and two sons Shamiullaha Kazami and Faridullaha Kazami though it is said that he had one more son Fasiullaha Kazami. On the death of Hamidullaha it is said that his wife Khatoon Jannat Bibi re-married one N.H. Naqvi and that Km. Asama and Zahira Latif are her great grand daughters. The pedigree of Riyazuddin above for the sake of convenience is described hereunder : JUDGEMENT_377_ADJ3_2011Image1.jpg The plaintiffs Km. Asma and Zahira Latif, the great grand daughters of Khatoon Jannat Bibi who are residents of USA through their common power of attorney holder N.H. Naqvi Commissioner of Income Tax (retired) on 27.1.1990 instituted original suit No. 58 of 1990 purported to be under Section 38 of the Specific Relief Act, 1963 for a decree of permanent injunction in respect of disputed property i.e., a mango grove, dilapidated Kothi and some other open land with trees arraying Asadullaha as defendant No. 1 and one of his sons Samiullaha as defendant No. 2 alongwith one Ram Chandra Yadav, "bagwan" as defendant No. 3. The suit was filed basically on the allegation that the plaintiffs are owners in possession of the disputed bhoomidhari land on the basis of a "hiba" i.e. oral gift dated 16.8.1988 made in their favour by Khatoon Jannat Bibi in respect whereof a memorandum was also written on 23.8.1988. The defendants to the suit have no concern with the aforesaid disputed property and as such they be restrained by a decree of permanent prohibitory injunction from interfering in their peaceful possession and use of the aforesaid disputed property. In the aforesaid suit an application for interim injunction paper No. 8C with affidavit 9C was also moved on behalf of the plaintiffs. Defendant No. 1 filed objections 26C with affidavit 27 C to the said application to which rejoinder affidavit 47 C was filed on behalf of the plaintiffs. The Court of first instance on consideration of the material on record vide order dated 31.5.1990 disposed of the aforesaid ad- interim injunction application directing the defendants to maintain status quo with regard to the suit property till the disposal of the suit and further restrained them from interfering in the peaceful possession of the plaintiffs over it. The said injunction order attained finality as it was not assailed by any one.
(3.) THE suit was contested by defendant No. 1 Asadullaha by filing a written statement. In the written statement which was filed on 5.12.1990 he denied the plaint allegations and claimed that on the death of her mother Khatoon Jannat Bibi he became the exclusive owner of the disputed property. He contended that the suit for injunction in respect of bhoomidhari land is bared by Section 331 of U.P. Z.A. and L.R., Act and is not maintainable before the Civil Court. THE suit is also barred by Section 41(h) of the Specific Relief Act. THE plaintiffs have wrongly impleaded defendant No. 2 in as much as he has no concern with the disputed property so long as defendant No. 1 who is his father is alive. Defendants No. 2 and 3 have wrongly been impleaded in the suit. It was also contended that no oral gift as alleged was ever made by Khatoon Jannat Bibi and that she had only life interest in the said property by virtue of the registered will dated 11.5.1923 executed by her father Nabi-Ullaha whereafter the property was to devolve upon the male lenial defendants of Nabiullaha. Since Walliullaha, the only male issue of Nabiullaha had died leaving no son, the property in its entirety devolved upon defendant No. 1 exclusively. No written statement was however filed either by defendant No. 2 Samiullaha or defendant No. 3 Ram Chandra Yadav.;