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Madhya Pradesh High Court · body

2011 DIGILAW 967 (MP)

Julekha Bi v. Jamil Ahmed

2011-08-19

A.K.SHRIVASTAVA

body2011
JUDGMENT ( 1. ) THE unsuccessful plaintiffs who have lost from both the Courts below have filed this Second Appeal. ( 2. ) A Civil Suit was filed near about 30 years ago on 8-9-1981 for partition and to deliver the separate possession with certain other reliefs. The original plaintiff was one Abdul Samad who had died during the pendency of suit and whose LRs are appellants of this appeal. In the plaint, original plaintiff has pleaded that he is having 8/5th share in the suit property and the said property is of his grandfather Late Fakir Mohammad. The written statement was filed by defendants and they refuted the plaint averments and stated that the family tree given by the original plaintiff in the plaint is not correct because plaintiffs' father Mohammad Abbas was having other sons and daughter also which the plaintiff has deliberately concealed. ( 3. ) LEARNED trial Court framed necessary issues and after recording the evidence of the parties, dismissed the suit. The first appeal which was filed by plaintiffs has been dismissed by the impugned judgment and decree. ( 4. ) IN this manner this second appeal has been filed by the plaintiffs-appellants. This Court on 22-7-1996 has admitted the second appeal on the following substantial question of law :- "Whether, the Court below was right in holding that the suit cannot be decreed merely because the sale deed, Ex.P-1, dated 28-6-1989, did not mention the number of the house?" ( 5. ) THE contention of Shri K. N. Agrawal, learned counsel for appellants is that sale-deed (Ex.P/1) is near about 90 years old, when the suit was filed and it is a registered sale-deed. THE original sale-deed has been lost and Ex.P/1 is the certified copy which has been taken on record. Learned Counsel submits that Fakir Mohd. bought the suit property from one Hazari Gudhar Khan s/o Hussain Khan on 18-6-1892. By this sale-deed Fakir Mohd. became the owner of the suit property. Learned counsel by inviting my attention to pedigree mentioned in the plaint has submitted that original plaintiff Abdul Samad was the son of Mohd. Abbas who was one of the sons of Fakir Mohd. According to plaintiff Fakir Mohd. was having 5 children namely Mohd. Abbas, M. Ibrahim, M. Ishaq, M. Smile and Latim Bi, who died issueless. Learned counsel by inviting my attention to pedigree mentioned in the plaint has submitted that original plaintiff Abdul Samad was the son of Mohd. Abbas who was one of the sons of Fakir Mohd. According to plaintiff Fakir Mohd. was having 5 children namely Mohd. Abbas, M. Ibrahim, M. Ishaq, M. Smile and Latim Bi, who died issueless. THE plaintiff is son of Mohammad Abbas and he is having 5/8th share in the suit property looking to the family tree pleaded by him. It has been further contended by learned counsel that learned two Courts below have dismissed the suit of plaintiffs merely because the house number is not mentioned in the sale-deed and merely because house number has not been mentioned in the sale-deed would not mean that sale-deed (Ex.P/1) is not in respect of suit property because there is no other property of Fakir Mohd. and therefore it has been prayed that by allowing this appeal the suit of the plaintiffs be decreed holding that they are entitled for 5/8th share in the suit property and separate possession be also delivered to them and further reliefs which are sought in the plaint be also granted. ( 6. ) ON the other hand Shri Sajidulla Khan learned counsel for respondents argued in support of the impugned judgment and submitted that merely on this ground that the house number has not been mentioned in the sale-deed the suit of the plaintiffs has not been dismissed but on other several grounds the suit lias been dismissed and in this context learned counsel has invited my attention to finding recorded by learned two Courts below. Learned counsel for respondents submits that since the appeal has not been admitted on other grounds by framing substantial questions of law on which the suit has been dismissed, therefore, even if this substantial question of law is answered in favour of appellants the suit cannot be decreed because on other grounds appeal has not been admitted. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding substantial question of law :- ( 7. ) ON bare perusal of the sale-deed (Ex.P/1) this Court finds that no house number has been mentioned in it. However, merely on this ground the suit has not been dismissed but on several other grounds, the suit has been dismissed. Regarding substantial question of law :- ( 7. ) ON bare perusal of the sale-deed (Ex.P/1) this Court finds that no house number has been mentioned in it. However, merely on this ground the suit has not been dismissed but on several other grounds, the suit has been dismissed. ON going through the judgment passed by learned two courts below and particularly the learned First Appellate Court para 7 this Court finds that by concealing the material fact in his pleading the original plaintiff had filed the suit for partition alleging that he is entitled to share of 5/8 in the suit property. Specifically plaintiff has stated in the plaint that he is the sole son of his father Mohd. Abbas and the same has also been so stated in his testimony para 3 of his examination-in-chief. However, in para 6 of his cross-examination he has admitted that he is also having his brothers and sisters but he has put his ignorance that his brothers and sisters are having any children. The learned two Courts below have categorically recorded a finding that plaintiff has concealed the material facts and no prudent man would digest this fact that real brother would not be acquainted that his brothers and sisters are having how many children. It has already come in the testimony of original plaintiff that some of his brothers and sisters have gone to Pakistan but this fact has not been pleaded by him in his plaint. Hence, it cannot be said that plaintiff is having 5/8th share in the suit property. Indeed the plaintiff was duty bound to plead the members of his family in order to ascertain under the law how much share in the suit property he is entitled. In this view of the matter, it cannot be said that original plaintiff was having 5/8th share in the suit property. Since it is not certain that how much share original plaintiff was having in the suit property, therefore, suit of plaintiffs has been rightly dismissed. ( 8. In this view of the matter, it cannot be said that original plaintiff was having 5/8th share in the suit property. Since it is not certain that how much share original plaintiff was having in the suit property, therefore, suit of plaintiffs has been rightly dismissed. ( 8. ) THE substantial question of law is thus answered that although the suit cannot be dismissed merely because sale-deed (Ex.P/1) does not contain the house number but the suit has not been dismissed solely on this ground but on several other grounds for which no substantial question of law has been framed and therefore those findings on those grounds of learned Courts below have become final. Resultantly, this appeal fails and is hereby dismissed with cost. Counsel fee Rs. 2000/- if pre-certified. Appeal dismissed.