SHEIKH ABDUL HAI Vs. SHEIKH ABDUL JABBAR

JUDGEMENT

(1.) BEFORE I dispose of the appeal, I may state that this appeal is one of the oldest appeals pending since the year 1985. This appeal was dismissed in default twice and thereafter restored on both the occasions, second restoration being vide the last order dated 27.1.2011 when it was made clear that no adjournment shall be granted and the appeal will be argued today. Counsel for the appellant again however sought an adjournment which was declined by me, and thereafter the counsel has argued the appeal.

(2.) THE challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 19.2.1985 whereby the appellant/plaintiff was granted 1/4th share in the property No.X/2398, Kutcha Mir Hashim, Chitli Qabar, Delhi. THE appellant/plaintiff however claims that he should have got half ownership in the property and not 1/4th as decreed by the trial Court.

(3.) I may note that in the memo of appeal a totally new case than as set up in the trial Court was set up that the brothers Nisar Ahmad and Abdul Gaffar had no right to transfer the property in favour of Abdul Jabbar vide document Ex.DW3/1 dated 21.11.1955 inasmuch as the appellant/plaintiff claimed that earlier there was a dastabardari nama of the year 1951 executed by Nisar Ahmad and Abdul Gaffar and these persons therefore could not have executed DW3/1 on 21.11.1955. However, learned counsel for the appellant has very fairly not argued on this basis, and in fact this position could not have been so argued, because, the trial Court has noted the admission made on behalf of the appellant/plaintiff in the trial Court that the 50% rights of Nisar Ahmad and Abdul Gaffar were in fact transferred vide Ex.DW3/1 dated 21.11.1955 to Sh. Abdul Jabbar.