Manoj Kumar Gupta, J. - (1.) THE petitioners instituted Original Suit No. 225 of 2014 against the defendant -respondents for permanent prohibitory injunction, restraining them from interfering in the possession of the petitioners over the suit property, which is a residential house described at the foot of the plaint. A further injunction has been sought against the defendants restraining them from demolishing any portion of the suit property or from raising any new constructions. According to the plaint case, suit property was purchased by Munshi Sayeed Ahmad on 17.2.1972. However, defendant -respondent No. 3, who was his first wife was also shown as a co -vendee. According to the petitioners, the sale deed in respect of half share in favour of the defendant No. 3 was a benami transaction, the real owner being Munshi Sayeed Ahmad. It has further been pleaded that on 21.3.1983, Munshi Sayeed Ahmad divorced his first wife, defendant No. 3 and remarried, plaintiff No. 1. Plaintiff No. 2 to 8 are the issues born out of the wedlock between Munshi Sayeed Ahmad and plaintiff No. 1. It is alleged that the plaintiffs are in possession of the suit property but the defendants are wrongly interfering in the possession of the petitioners, and hence the suit.
(2.) THE suit was contested by defendant -respondents contending that infact, suit property belonged to Mst. Hazzan Rashidan, mother of defendant No. 3. On account of marriage of defendant No. 3 with Munshi Sayeed Ahmad, she executed a sale deed dated 17.2.1972 in favour of her daughter and also included the name of Munshi Sayeed Ahmad being her husband. It was further claimed that infact it was the defendant No. 3 who was the real owner of the entire property. It was denied that any divorce had taken place between the third defendant and Munshi Sayeed Ahmad. It was further pleaded that he also married plaintiff No. 1 and on request of her husband, the third defendant permitted plaintiff No. 1 and her children to occupy the western portion of the house, which has a separate entrance. It was claimed that the eastern half portion of the suit property was transferred by the defendant No. 3 in favour of defendants 1 and 2 by registered sale deed dated 30.6.2014 and actual physical possession over the said portion was also delivered to them. The suit for injunction simplicitor has been filed by concealment of material facts. In the suit, plaintiffs also filed an application for temporary injunction. The trial court by an order dated 30.9.2015 held that according to the sale deed dated 17.2.1972, the sale consideration was paid by defendant No. 3 and possession was also delivered to her. Thus, prima facie the real owner was defendant No. 3 and the name of her husband Munshi Sayeed Ahmad was included merely on account of the fact that he was her husband. The trial court held that the possession of Munshi Sayeed Ahmad has not been proved and thus, no injunction can be granted in favour of the plaintiffs, as they claim title only through Munshi Sayeed Ahmad. Consequently, the trial court rejected the application for temporary injunction.
(3.) AGGRIEVED by the said order, the petitioners preferred Misc. Appeal No. 44 of 2015, which has been allowed partly by the District Judge, Saharanpur by order dated 7.9.2015 and the defendants have been restrained from interfering in the possession of the petitioners over the western half portion of the suit property.;