MOHD YASIN Vs. MUST NAJMA

JUDGEMENT

(1.) This plaintiff's second appeal has been admitted on the following substantial questions of law for determination: -

(2.) Plaintiff Mohd. Yasin and Jamaluddin were brothers and defendant No.1 is widow of Jamaluddin. They being Mohammedans are governed by the Hanfi branch of the Muslim Law in the matter of succession. The dispute relates to the property shown in Schedules A & B annexed with the plaint. The suit filed by Mohd. Yasin, the appellant herein / plaintiff, for declaration of title, partition and possession, was dismissed from amongst other grounds principally on the ground that the civil suit filed for declaration of title and partition is not maintainable in view of the provisions contained in Sec. 178 of the Chhattisgarh Land Revenue Code, 1959 (wrongly mentioned as Sec. 165) which was upheld by the first appellate Court, though the first appellate Court has held that the plaintiff is entitled for 1/6th share in the suit property against which this second appeal has been preferred in which substantial questions of law have been framed.

(3.) Mr. Manoj Paranjpe, learned counsel for the appellant / plaintiff, would submit that the first appellate Court has fallen into grave error in holding that the civil court has no jurisdiction to entertain the suit for declaration of title and possession in view of the fact that the Tahsildar in Revenue Case No.18A-27/2000-2001 (Najma v. Yasin) had already directed to get the dispute of title decided by the jurisdictional civil court on 25/7/2002 and in view of that both the Courts below are absolutely unjustified in holding so ignoring the Full Bench decision rendered by the M.P. High Court in the matter of Nagjiram v. Mangilal and others. , 1977 AIR(MP) 8 (FB) in which the principle of law has been laid down qua Sec. 178 of the Chhattisgarh Land Revenue Code, 1959 (for short, 'the Code'). As such, the impugned judgment & decree deserve to be set aside and the suit be decreed as held by the first appellate Court that the plaintiff is entitled for 1/6th share in the suit property.