IMAMHUSSAIN Vs. JANNATHI

JUDGEMENT

(1.) THE first defendant before the trial Court is the appellant herein and he is aggrieved by the lower appellate Court reversing the judgment of the trial Court inasmuch as whereas the trial Court dismissed the suit filed by the respondents-plaintiffs, the lower appellate Court reversed the same by allowing the appeal filed by the respondents-plaintiffs and decreeing the suit of the plaintiffs for separate possession of their 1/4 share in the suit property. Hence this second appeal.

(2.) THE facts in brief are to the effect that the respondents-plaintiffs filed the suit for separate possession of their 1/4 share in the suit property by contending that they were the legal heirs of deceased Jangusaheb and following the death of said Jangusaheb, respondents-1 to 6, being the wife (plaintiff-1) and children (plaintiffs 2 to 6), filed the said suit for the above said relief. The said suit was contested by the defendants by taking up the stand that Jangusaheb did not marry the first plaintiff Jannatbi and the name of the first plaintiff is Ningavva, a Hindu belonging to maratha community and, therefore, there was no marriage having taken place between the first plaintiff and Jangusaheb and, as such, though the defendants does not dispute the fact of plaintiff s-2 to 6 being born out of the union between Jangusaheb and the first plaintiff, yet, as the marriage itself was not proved, in view of deceased Jangusaheb and the first plaintiff belonging to different religious, the suit of the plaintiffs will have to fail because, under the mohammedan Law of inheritance, following the death of Jangusaheb, it was the branch of the defendants, which will go to inherit the suit property. Therefore, they prayed for dismissal of the suit.

(3.) THE learned trial Judge, based on the pleadings of the parties, framed as many as 12 issues and answered issues 1 to 5, 7 and 11 in the negative and the rest in the affirmative and consequent to the said findings, the suit was dismissed. Aggrieved by the dismissal of the suit in O. S. No. 215/1989, the respondents-plaintiffs preferred R. A. No. 60/1994 and the learned Judge of the lower appellate Court, after considering the evidence on record, formulated nine points for consideration and came to the conclusion that the plaintiffs had established the fact of marriage between late jangusaheb and first plaintiff Jannatbi and the children born to them i. e. plaintiffs-2 to 6 also being held to be legitimate children of the said couple, the lower appellate Court allowed the appeal filed by the plaintiffs by setting aside the judgment of the trial Court and the suit was decreed by holding that plaintiffs-1 to 7 are entitled to 1/4 share in the suit property less 1 acre 6 guntas of land sold in favour of the fifth defendant.