LIGAKATH ALI KHAN Vs. SYED WAZEED

JUDGEMENT

(1.) This second appeal filed under S.100 of Code of Civil Procedure, 1908 (for short, the Code), arises from a Judgment and decree passed by the District Court, Bangalore Rural District, Bangalore, whereby, the learned Prl. District Judge, allowed the appeal filed by the 1st respondent herein, under S.96 of the Code and set aside the Judgment and Decree passed by the Court of Civil Judge (Sr. Dn.), Anekal and decreed the suit for partition and separate possession. Basic facts of the case are, Sri Syed Wazeed, the 1st respondent in this appeal, filed O.S. No. 340/1999, renumbered as 257/2006, in the Court of Civil Judge (Sr. Dn.) at Anekal, to pass a judgment and decree of partition and separate possession, inter alia contending that the two items of plaint schedule properties belonged to his great grandmother Smt. Khateejabi, after whose demise, the estate was inherited by her only daughter Smt. Aseema Khathum and that she was in possession and enjoyment of the said properties. Amongst the three sons of Aseema Khathum, second son, Syed Abeed, passed away and his estate was succeeded by Syed Fazal, defendant No. 3, and that the only daughter of Aseema Khathum i.e., Smt. Habibunnisa, passed away and defendant No. 1, is the only son. That, Aseema Khathum having died, plaintiff and defendants are in possession and enjoyment of the suit properties as tenants in common and as such, the properties are liable to be divided into four equal shares i.e., amongst the plaintiff and the defendants. It was alleged that, 1st defendant entered into an agreement of sale with one Mr. Mohammed Shafiulla and upon coming to know of the said fact, suit was instituted to pass a judgment and decree of partition and separate possession.

(2.) Defendants 2 and 3 having remained absent, were placed exparte by the Trial Court. Defendant No. 1 filed written statement and admitted that the suit schedule properties belonged to Khateejabi and that she had only one daughter by name Aseema Khathum. Other averments made in the plaint were denied. It was stated that, Khateejabi, executed a registered Will, bequeathing both items of suit properties in his favour and that she died on 15.07.1986, whereafter, the katha was registered in his name and that he has been paying the tax and holding and enjoying the suit schedule properties as the absolute owner. Plaintiff's claim for a share and separate possession was opposed.

(3.) On the pleadings of the parties, the Trial Court framed the following issues: