Pushpendra Singh Bhati, J. - (1.) The petitioner has preferred this writ petition praying the following reliefs :- "It is, therefore, most respectfully prayed that the a) Writ Petition may kindly be allowed with cost throughout; and a) both the impugned order/judgment dated 14.03.2018 (Annex. P/5) passed by Learned Civil Judge, Bikaner and impugned order/judgment dated 25.05.2018 (Annexure P/6) Passed by Learned Additional District Judge No. 1 Bikaner may kindly be quashed and set aside ; and b) TI Application filed by the petitioners may kindly be allowed as prayed ; and c) During the pendency of this writ petition status quo of the property in question may kindly be ordered to maintain;"
(2.) Brief facts of the case as noticed by this Court are that the present dispute pertains to a plot measuring 195 Sq. yard situated at Dhobi Talai, Bikaner (Rajasthan) originally owned by Gafoor Khan. After death of Gafoor khan on 2.3.1970, Smt. Nasiban W/o. Late Gafoor khan sold out disputed plot to Mohd. Ibrahim i.e. defendant no. 1 herein through registered sale deed. Thereafter the defendant no. 1 herein let out one room to Nishar Ahmed i.e. defendant-respondent no. 4 herein (relative's brother) and the other room to Sardar @ Sidara (defendant-respondent no. 2 herein) for residential purposes. 2.1 Despite having registered sale deed executed in favour of the defendant no. 1 herein, Smt. Nasiban W/o. late Gafoor khan along with her two daughter namely Sarifan (defendant no. 3 herein) and Sayara i.e. mother of present petitioners-plaintiffs herein, filed a civil suit no.107/1987 before the learned trial court for eviction & possession against the Nishar Ahmed as well as Sidari @ Sidara alleging therein that they are licensees of the Smt. Nasiban without impleading father in law of defendant no.1 herein as party despite the fact that the disputed property was already sold to him. During pendency of suit Smt. Nasiban (plaintiff in first suit) died and as her two daughters were already on record and defendant no. 1 also died but no such application was made to bring LR's of Sidari @ Sidara on record. Subsequently her name was ordered to be deleted from array of parties. The said suit was decree ex-parte against Nishar Ahmed only on 21.9.1987. 2.2 An execution petition was filed by Sayara (Mother of present petitioner) & Sarifan (defendant-respondent no. 3 herein) against Nishar Ahmed (defendant-respondent no. 4 herein). Nishar Ahmed (defendant-respondent no. 4 herein) filed an objection stating therein that the plot in question sold out by the Smt. Nasiban to Mohd. Ibrahim (Father in law of defendantrespondent no. 1 herein) on 02.03.1970 through registered sale deed and he is licensee of the Mohd. Ibrahim and thus, Mohd. Ibrahim is only owner of plot in question. Therefore, he may not be dispossessed from the plot in question. 2.3 When the Sale Amin of the trial court went to take possession, Nishar Ahmed informed Mohd. Ibrahim (Father in law of respondent no. 1 herein) about the suit as well as execution and hence, Mohd. Ibrahim filed an application before the executing court stating therein that he filed a suit for declaration of title, permanent injunction and declaration of judgment & decree dated 21.09.1987 as null and void. Therefore, the execution proceeding may kindly be stayed. After hearing both the parties, the learned executing court was pleased to stay the execution proceeding until the final decision of suit filed by the Mohd. Ibrahim (father in law of respondent no. 1 herein). 2.4 Ibrahim (father in law of respondent no. 1 herein) filed a suit no.174/88 (702/93) against Sayara (Mother of present petitioner), Sarifan (respondent no. 3 herein) and Nishar Ahmed (respondent no. 4 herein) for declaration of title, permanent injunction and declaration of judgment & decree dated 21.09.1987 passed in the first suit filed by Smt. Nasiban and her daughters against the Nishar Ahmed as null and void. Sayara had expired before filing this suit thus, her name was ordered to be deleted from array of parties vide order dated 21.04.1998. However, despite service of the notices, Smt. Sarifan i.e. respondent no. 3 herein did not file any written statement. The defendant- respondent no. 4 filed written statement denying the averments mentioned in the suit and stated that since from year 1957-58, he has continuously been possession of the plot in question therefore, being a long possession, he is owner of the plot in question. This second suit filed by Mohd. Ibrahim (father in law of respondent no. 1 herein) was decreed vide judgment and decree dated 7.4.2005 inter alia to the effect that the judgment & decree dated 21.09.1987 passed in first civil suit no. 107/87 is declared null and void against the plaintiff ; the defendant-respondent no. 3 herein was restrained to dispossess the plaintiff-respondent no. 1 herein in light of the execution filed in pursuance of the judgment & decree dated 21.09.1987 and it was also directed to not interfere or to act with the plot which cause effect upon the right of the plaintiff-respondent no. 1 herein. 2.5 Being aggrieved by the aforesaid judgment & decree dated 07.04.2005, defendants-respondents no. 3 & 4 herein have challenged the said judgment by way of filing separate first appeals (Appeal No. 56/05 by Smt. Sarifan and Appeal No. 86/05 by Nishar Ahmed). However, the said appeals were dismissed by the learned appellate court vide judgment dated 22.11.2005. 2.6 The defendant-respondent no. 3 herein filed a review petition no.6/2006 under Order 47 Rule 1 CPC against the said judgment & decree dated 22.11.2005. During pendency of review application, original plaintiff Mohd. Ibrahim (Father in law of respondent no. 1 herein) expired and two daughters namely Jayada and Jafara were taken on record as legal heirs. However, as Mohd. Ibrahim executed a registered will dated 13.05.2005 for plot in question in favour of the Taukir Ahmed (respondent no. 1herein) thus, he filed an application before the court below to implead him as party in the present matter. Therefore, Taukir Ahmed (respondent no. 1 herein) impleaded as party. However, learned appellate court dismissed this review application filed by Smt. Sarifan (respondent no. 3 herein). Thereafter, Smt. Sarifan filed a writ against the said order passed in review before this Court and same came to be dismissed. 2.7 Thereafter, Smt. Sarifan (respondent no. 3 herein) filed second appeal bearing no.234/2007 before this Court wherein first and second stay applications have been rejected by this court but the appeal is pending adjudication. 2.8 Taukir Ahmed (respondent no. 1 herein) filed a suit no.144/2009 for eviction as well as mesne profit against the Nishar Ahmed (respondent no. 4 herein) stating inter alia therein that his father in law owned a house situated at Dhobi Talai, Bikaner and they had let out to defendant (Nishar Ahmed) as licensee. On 13.05.2005 his father in law executed a registered will of said house in his favour and on 06.09.2006 Mohd. Ibrahim expired thus, on basis of Will executed by Ibrahim (his father in law), he is owner of house. Now he has bonafide necessity of house thus, on 13.04.2009 sent notice for vacating the house but he refused to vacate the house. Therefore, suit was filed. The respondent no. 4 herein (Nishar Ahmed) filed written statement as well as counter claim denying the averments mentioned in the suit and stated that he is owner of house being in continuous possession since from last 28 year. 2.9 Suit was decreed on 5.1.2015 in favour of Taukir Ahmed (respondent no. 1 herein). 2.10 Being aggrieved by the aforesaid judgment & decree dated 5.1.2015, Nishar Ahmed (respondent no. 4 herein) filed a first appeal no.44/2015 before this Court which was dismissed by this Court vide judgment dated 8.7.2015. 2.11 After decision of said first appeal, an execution was filed by Taukir Ahmed (respondent no. 1 herein) before the learned executing court against Nishar Ahmed (respondent no. 4 herein). The petitioners herein filed objection no.52/2015 under order 21 Rule 97 CPC along with stay application in aforesaid execution proceedings. Thereafter one of the person namely Mohd. Rafiq (respondent no. 2 herein) filed objections 57/2015 under order 21 Rule 97 CPC along with stay application stating therein that house in question belong to Late Gafoor who was brother of Sardari and late Gafoor during his lifetime handed over the house to Sardari through Hibba. Thereafter, Sardari sold out the same to Smt. Munni through registered sale deed dated 02.12.1972. In the year of 2011, Munni expired and he is residing in house in question as owner. 2.12 The learned executing court vide its order dated 1.12.2015 rejected stay application filed by the petitioners herein but stayed the execution proceeding to extent of the right of the Mohd. Rafiq (respondent no. 2 herein). 2.13 Being aggrieved by the said stay order, Taukir Ahmed (respondent no.1 herein) filed a writ petition bearing No.12671/2016 before this Hon'ble Court and this Hon'ble court vide order dated 29.11.2016 was pleased to dispose of the said writ petition with direction to the executing court to decide the objections filed by objector Mohd. Rafiq within a period of four weeks from the date of receipt of certified copy of this order. 2.14 Taukir Ahmed was impleaded as party in the second appeal no.234/2007. 2.15 The petitioners filed the fourth suit against Taukir Ahmed, Mohd. Rafiq, Smt. Sarifan and Nishar Ahmed (respondents herein) before the learned trial court for declaration as well as permanent injunction to the extent of 1/3rd share in house in question and prayed that 1/3rd share be declared to be of plaintiffs-petitioners herein and the judgments & decrees dated 7.4.2005 & 5.1.2015 and registered sale deeds dated 2.3.1970 & 2.12.1972 be declared null and void to the extent of his 1/3 share. Further, if during pendency of this suit, the plaintiffs-petitioners herein are dispossessed, the possession be restored to them. 2.16 The respondent no. 1 herein filed an application under Order 7 Rule 11 CPC before the learned trial court which was rejected by the learned trial court. The respondent no.1 herein filed S.B. Civil Revision Petition No.166/2017 before this Hon'ble Court and the same is still pending for consideration. 2.17 The objection filed under order 21 rule 97, 101 r/w section 151 CPC by the petitioners has been dismissed by the executing court vide order dated 3.6.2017. 2.18 Being aggrieved by rejection of objection, the petitioners filed execution first appeal bearing no. 6/2017 before this Hon'ble Court. After hearing both parties, this Hon'ble Court dismissed stay application of the petitioners vide order dated 22.1.2018. 2.19 The petitioners assailed aforesaid order by way of filing D.B. Civil Special Appeal no.3/2018 before the Hon'ble Division bench which was dismissed vide order dated 15.2.2018. 2.20 The learned trial court dismissed the application for temporary injunction filed by the petitioners herein vide order dated 14.3.2018. The petitioners herein filed appeal against aforesaid order before the Additional District Judge No. 1, Bikaner. 2.21 Simultaneously, the petitioners herein filed an application u/o. 22 rule 10(2) r/w section 151 CPC for impleading party to execution proceedings. However, their objections separately filed have already been rejected by the executing court and the same was confirmed by this Hon'ble Court. Execution first appeal has also been dismissed. 2.22 The learned appellate court vide order dated 2.4.2018 rejected the appeal filed by the petitioners herein against the order refusing temporary injunction.
(3.) Counsel for the petitioners has pointed out that their maternal grand father (Nana) was rightful owner and their maternal grand mother (Nani) Smt.Nasiban has wrongly alienated the property to the respondents as she could not have alienated beyond her share while both her daughters were surviving. He states that the present suit is maintainable and the petitioners are entitled to grant of temporary injunction as they are in person and they are likely to be dislocated on account of the executing proceedings launched by the respondent no.1. He has relied on the judgment rendered by the Hon'ble Supreme Court in the case of T.Ravi & Anr. vs. B. Chinna Narasimha & Ors. Etc.,2017 1 WLC(SC)Civil 731, Head Note (I), which reads as follows:- "I: Muslim Law-Rights of co-sharer-Sale of joint property by co-sharer Effect-Sale beyond legal share of co-sharer is void-No principle of tenancy in common in Muslim Law-In legal transactions, co-sharer is neither joint creditor, nor joint debtor, nor partner, nor executor, nor agent of other co- sharers nor joint mortgagee-Words & Phrases-Distant kindred-Meaning explained.";