MOHAMMAD AMIRULLAH KHAN Vs. MOHAMMAD HAKUMULLAH

JUDGEMENT

(1.) The appellants filed a suit for declaration and possession in respect of Municipal House No. 1995 situated at Mohalla Hatai of Paithan District, Aurangabad. There was also a prayer for perpetual injunction restraining respondents Nos. 1 and 2 from interfering in the possession of the appellants/plaintiffs.

(2.) Briefly stated the averment in the plaint was that the father of the plaintiffs, Abdullah Khan, had three wives. The plaintiffs are the sons and daughters from the third wife. Abdullah Khan had bought the two adjacent houses in the name of plaintiff No. 1 and his brother one Nazifulla Khan. Nazifulla Khan died when Abdullah Khan was still alive. It was alleged in the plaint that thereafter Amirullah Khan, plaintiff No. 1, became the sole owner. It was further the case of the plaintiffs that defendant No. 1 was a son from the second wife of Abdullah Khan and defendant No. 2 was the daughter of the plaintiffs deceased brother. The said brother who was father of defendant No. 2 had died at the time when Abdullah Khan was still alive and the son from the second wife Lutfulla Khan, father of defendant No. 1, had also died earlier than Abdullah Khan. Ac-cording to the plaintiffs, their mother brought to the house defendant Nos. 1 and 2 and looked after them and permitted them to reside in the house in question.

(3.) The mother of the plaintiffs died in 1955. Plaintiff No. 1 was not at Paithan at that time. In 1961, he got to know that the defendants were trying to assert themselves as owners of a part of the said house which had been re-numbered as 1995, the original number being 166. The plaintiffs thereupon filed a revision petition before the State Government contending that the property should be re-numbered to 166 instead of 1995. It was also prayed that the plaintiffs should be shown as owners and the defendants as occupiers. The State Government agreed to this contention and the name of the plaintiff No. 1 was shown as the owner of the premises in question. It is thereafter that in 1968 the suit was filed. In the written statement, the main contention which had been taken by the defendants was that the plaintiff No. 1 was only a benamidar of Abdullah Khan and he was not owner of the same by virtue of the sale deed in his favour. The defendants further claimed that they had been residing in that house since 1927 and they have a right to remain in possession thereof. On the pleadings before the Court, the following issues were framed :