ZOHARBEE Vs. IMAM KHAN

JUDGEMENT

(1.) In these appeals, challenge is laid to final judgment and order dtd. 1/3/2012 in Second Appeal No.435 of 2011 with Civil Application No.10306 of 2011 passed by the High Court of Judicature at Bombay, Bench at Aurangabad whereby the appellants assailed the order of the First Appellate Court in RCA No.87 of 2005[District Judge, Aurangabad] dtd. 4/3/2005, overturning the findings of the Civil Court,[2nd Jt. Civil Judge (J.D.) Aurangabad in RCS No.310/99] was rejected.

(2.) The short conspectus of facts is that the appellant's husband namely Chand Khan passed away and now this litigation pertains to the property he left behind, between his surviving spouse namely Zoharbee[Hereinafter Defendant No.1] and his brother i.e. Respondent Imam Khan[Hereinafter Plaintiff]. The plot of land which is germane to the dispute is land S.No.22/3 and 22/1 of Gut No. 107 and Gut No.126. It is the plaintiff's case that all the property left behind by the deceased Chand Khan is matruka property and since he died issueless, as per Mohammedan law the former would be entitled to 3/4th of the total property and only the remaining 1/4th would fall in the rights and entitlements of defendant no.1. On the other hand, the case as per defendant no.1 is that the land bearing gut no.126 already stood transferred to the third party in the lifetime of Chand Khan by an Agreement to Sell dated November 1999 with defendant no.2 and 3 namely, Pandit Fakirrao Bodkhe and Bhausaheb Fakirrao Bodhke, and so the said property cannot be the point of contention in the instant proceedings. In so far as the other piece of land is concerned, it is contended that the same stood transferred to the sole and exclusive ownership and possession of defendant no.1 many years prior to the death of Chand khan but in the challenging circumstances of the latter's continued illness, the same was sold to one Ayub Khan who is defendant no.4 and part consideration of such sale stood received in the life of Chand Khan and the remaining, subsequently after his death. Therefore, nothing remains to be partitioned in terms of matruka property.

(3.) The learned Civil Court agreed with the contentions of defendant no.1 and partly decreed the plaintiff's suit in so far as the property sold to defendant no.4 is concerned for the reason that he chose not to contest the suit in any way whatsoever and did not file a written statement. Regarding the remaining property, it was observed that the Agreement to Sell entered into between the parties in the lifetime of Chand Khan stood duly proved by way of examination of witnesses (defendant no.2 and 3) and, therefore, no property remained to be divided between the successors in interest of the deceased. It was acknowledged that the sale deed was executed by Zoharbee after Chand Khan had died however the said fact was not treated as material in view of the evidence presented.