SABIRA SULTANA AND Another vs BANGUL KHAN AND Other
The petitioners, heirs of the late Muhammad Tufail, sought to protect their interest in house property that had been mortgaged by another heir. The mortgagee obtained an eviction order from the Rent Controller, which the petitioners challenged. The trial court granted an injunction restraining the implementation of the eviction order. Although the appellate court set aside the injunction, the High Court, in revision, restored it specifically regarding the petitioners' 21/80 share of the property. The Supreme Court granted leave to appeal, noting that the High Court's order effectively partitioned property held in common tenancy, which is undesirable. The Court observed that the mortgage claim covered the entire property, as the mortgaging heir held power-of-attorney from the others. The Supreme Court held that allowing the High Court's order to stand would cause serious interference with the integrity of the suit property by effecting a partition pendente lite. Consequently, the Court stayed the execution of the High Court's order pending the final appeal.
- Can a court grant an injunction that effectively partitions property held in common tenancy during the pendency of a suit?
- Is it appropriate for a court to allow the partial implementation of an eviction order against a specific share of a property held in common tenancy?
ORDER
1. CORNELIUS, C. J.-The petitioners are two of the heirs of one Muhammad Tufail, and had sued to save their interest in house-property left by him which had been the subject of mortgages by another of the heirs. The mortgage had obtained an eviction order from the Rent Controller, and the plaintiffs sought, and obtained from the trial Court, an injunction to restrain against implementation of the order. On appeal, the injunction was set aside, but on a further revision, a learned Judge of the High Court restored the injunction as to the share of the plaintiffs-petitioners only, i.e.. 21/80 of the house.
2. Leave to appeal against this order is sought.
3. It seems evident that if the order is allowed to stand, it is implementation will have the effect of partitioning a property which is at present in common tenancy. Such a side effect is clearly undesirable. Moreover, the mortgage claim cover the whole of the mortgage rights, being based on deeds mortgage executed by one of the heirs who was armed with power-of-attorney from the others. A serious interference with the integrity of the suit property in suit is likely to result, if partition is effected, pendente lite.
4. Leave to appeal is accordingly granted. Security-Rs. 1,000. Execution of the High Court's order is stayed ad interim. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.