Civil Appeal Nos. 2352-2354 of 2008. Case: Srihari Vs Syed Maqdoom Shah. Supreme Court

Case Number:Civil Appeal Nos. 2352-2354 of 2008
Party Name:Srihari Vs Syed Maqdoom Shah
Judges:Sudhansu Jyoti Mukhopadhaya and Prafulla C. Pant, JJ.
Issue:Code of Civil Procedure, 1908 (CPC) - Sections 151, 152, 153; Code of Criminal Procedure (CrPC) - Section 145; Code of Civil Procedure, 1908 (CPC) - Rule 18 (2) Order 20
Judgement Date:September 16, 2014
Court:Supreme Court
 
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Judgment:

Prafulla C. Pant, J.

1. All these three appeals are directed against the common judgment and order dated 21.4.2005 passed by the High Court of Andhra Pradesh in A.S.M.P. No. 11880 of 2004, A.S.M.P. No. 1098 of 2005 and A.S.M.P. No. 1099 of 2005 (moved in A.S. No. 734 of 1991) whereby the High Court exercising powers Under Section 152 of the Code of Civil Procedure, 1908 (hereinafter referred as 'the Code'), has allowed the applications, and directed that the preliminary decree passed in A.S. No. 734 of 1991, be amended allotting and dividing half share of Syed Makdoom Shah (Defendant No. 11) and Syed Hussain Shah in the suit schedule property in addition to 1/4th share of legal heirs of Plaintiff Khadar Nawaz Khan (since dead) and 1/4th share of the legal heirs of Defendant Feroz Khan (died on 22.1.1978).

2. Brief facts of the case are that one Qamaruddin Ali Khan was original owner and pattadar of agricultural land bearing S. Nos. 41 to 43 situated in Village Kokapet. The land was purchased by Khadar Hussain Khan through a registered sale deed, who died in the year 1942. Khadar Hussain Khan died issueless as an unmarried person, leaving behind his real sister Shahzadi Bee and two step brothers namely Feroz Khan and Khadar Nawaz Khan (Plaintiff). Khadar Hussain Khan remained in possession and enjoyed the property in suit as absolute owner till his death in the year 1942 (year 1352 Fasli). It is pleaded by the Plaintiff that after death of Khadar Hussain Khan the property was succeeded by his real sister Shahzadi Bee, and two step brothers namely Feroz Khan (died on 22.1.1978) and Khadar Nawaz Khan (Plaintiff). On the death of Feroz Khan in the year 1978, his share is inherited by his widow Habib Khatoon (Defendant No. 1) and children Moin Khatoon (Defendant No. 2), Zehra Khatoon (Defendant No. 3), Tehera Khatoon (Defendant No. 4), Sughra Sameena Khatoon (Defendant No. 5), Kaneez Fatima Khatoon (Defendant No. 6), Butool Khatoon (Defendant No. 7), Aysha Khatoon (Defendant No. 8) and Khaderalikhan (Defendant No. 9). A suit (O.S. No. 471 of 1987) was instituted by Plaintiff Khadar Nawaz Khan for partition of his 1/4th share from plot S. Nos. 41 to 43 measuring area Ac. 49.24 gts situated in aforesaid village Kokapet. It is further pleaded by the Plaintiff that after death of Feroz Khan, Plaintiff and Defendant Nos. 1 to 11 are in joint possession of the property. It is alleged by him that Defendant No. 12 (Srihari)had no concern with the property in suit but he is trying to claim right over the property on the basis of some document said to have been executed by one of the co-sharers. Therefore the Plaintiff felt that he is unable to enjoy his property, in joint possession with the original co-sharers as such he filed suit for partition of his 1/4th share.

3. Defendant Nos. 1 to 9 and Defendant No. 11 in substance admitted the case of the Plaintiff.(Defendant No. 10 during the pendency of proceeding has died and his heirs are on record.) Defendant No. 11 filed his written statement and Defendant Nos. 1 to 9 adopted the same. It is admitted to Defendant Nos. 1 to 9 and Defendant No. 11 that after the death of Khadar Hussain Khan, the property in suit devolved and was inherited by his real sister Shahzadi Bee and two step brothers namely Feroz Khan and Khadar Nawaz Khan. However, mutation was done in the name of Feroz Khan being elder male member in the family, and names of Shahzadi Bee and Khadar Nawaz Khan were shown 'shikmi'. It is further pleaded by the aforesaid Defendants that on the death of Feroz Khan on 22.1.1978, Defendant Nos. 1 to 9 (i.e. widow and children of the deceased) inherited his share. Defendant No. 11 is the son of Shahzadi Bee (real sister of Khadar Hussain Khan). It is also admitted by the aforesaid Defendants that Defendant No. 12 Srihari had no concern with the property in suit. It is further pleaded by aforesaid Defendants (Nos. 1 to 11) that the land in question is to be partitioned between the Plaintiffs and the Defendants.

4. Defendant No. 12 Srihari, filed his separate written statement and contested the suit. Denying the allegations made in the plaint, he pleaded that the suit property is not joint family property of Plaintiff and the Defendant Nos. 1 to 11. He further pleaded that the Plaintiff has filed the suit in collusion with Defendant Nos. 1 to 11. However, Defendant No. 12 admitted that the property in suit originally belonged to Qamaruddin Ali Khan which was purchased by Khadar Hussain Khan through registered sale deed, and for valid consideration. He (Defendant No. 12) pleaded in his written statement that on the death of Khadar Hussain Khan, his step brother Feroz Khan (husband of Habib Khatoon Defendant No. 1 and father of Defendant Nos. 2 to 9) inherited the property by virtue of Succession Certificate No. 812 of 1357 Fasli issued by Director of Settlements. It is pleaded by Defendant No. 12 that...

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