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Mt. Kaniz Sughra Bibi Vs. Mt. Fidai Begam and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All466
AppellantMt. Kaniz Sughra Bibi
RespondentMt. Fidai Begam and anr.
Excerpt:
- .....suit has culminated in a final decree, and it also appears that in execution of that decree mt. kaniz sughra has taken possession over one of the joint houses, being house no. 67. the respondents brought the suit, out of which this appeal has arisen, to obtain a declaration that the earlier decree was not binding on them for the reason that the person,, who was appointed their guardian for the suit, did not look after their interest and, in fact, was guilty of fraud.2. the first court dismissed the suit on she ground that the plaintiffs ware bound to ask for possession over house no. 67. the learned district judge on appeal held that the suit was not barred by section 42, specific belief act, he was of opinion that the possession which was given to the plaintiffs could be obtained.....
Judgment:

Mukerji, J.

1. This is an appeal against an order of remand passed by the learned District Judge. The facts very briefly are as follows: The appellant Kaniz Sughra brought a suit for partition of certain joint property against the plaintiff-respondents, who are two minors, and against others. That suit has culminated in a final decree, and it also appears that in execution of that decree Mt. Kaniz Sughra has taken possession over one of the joint houses, being house No. 67. The respondents brought the suit, out of which this appeal has arisen, to obtain a declaration that the earlier decree was not binding on them for the reason that the person,, who was appointed their guardian for the suit, did not look after their interest and, in fact, was guilty of fraud.

2. The first Court dismissed the suit on She ground that the plaintiffs ware bound to ask for possession over house No. 67. The learned District Judge on appeal held that the suit was not barred by Section 42, Specific Belief Act, He was of opinion that the possession which was given to the plaintiffs could be obtained back by the plaintiffs by an application under Section 144. Civil P.C. He also repudiated the plea of Kaniz Sughra that the plaintiffs were also bound to ask for injunction that the decree obtained by the appellant should not be executed.

3. We are of opinion that the order of remand is correct and for the following reasons. The possession which Kaniz Sughra has obtained is possession of what was undoubtedly joint property. If the decree for partition be declared to be null and void, the possession of Sughra would become possession by one co-owner on behalf of all the co-owners. The plaintiffs need not necessarily feel hurt if instead of themselves or any other co-owner, Sughra Bibi, a co-owner, should keep possession over a portion of the joint property.

4. As to asking for injunction, it was not necessary that any harm that has not already been done should be anticipated against and a prayer should be made for a grant of injunction. Indeed, there is no question of any permanent injunction. A temporary injunction may be asked for in the suit, and if granted that may suffice for the purpose.

5. The appeal is dismissed under Order 41, Rule 11.


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