MUMTAZ JEHAN Vs. INSHA ALLAH ALIAS NOOR JEHAN

JUDGEMENT

(1.) Whether Mst. Insha Allah alias Noor Jehan plaintiff /decree-holder/respondent No. 1 is entitled to actual possession of the immovable property allotted to her in the partition decree ? is the question for decision in this revision petition.

(2.) Briefly the relevant facts are that the plaintiff filed a suit for partition and mesne profits with respect to properties detailed in Annexure 'A' to the plaint against her step mother (Mst. Munawar Jehan defendant No. 1), two step sisters (Mst. Mumtaz Jehan and Mst. Altaf Jehan, defendants No. 2 & 3) and uncle (Abdul Hamid-defendant No. 4). She claimed 16172 share of the entire property. A preliminary decree for partition and rendition of accounts was passed. The plaintiff's share was held to be 16172. The local commissioner suggested vertical partition of the immovable property bearing Municipal No. 2086 Ward No. XI Gali Nahar Khan, Kucha Chelan, Daryaganj, Delhi by a line shown as P to P-1 in the plan Ex. C.W.I 14. The portions marked 'D' on ground floor, 'B' and 'P on first floor and 'A' on second floor of the said property i.e. the eastern portion of the said line, was allotted to the plaintiff. The Commissioner also reported that portion marked 'A' on second floor was in occupation of the plaintiff, that portion marked 'B' on first floor was in occupation of Mst. Munawar Jehan, defendant No. 1 that portion 'F' on first floor was in occupaion of Akhtar Ali, a tenant at Rs. 18.00 per month and another portion 'D' on ground floor was. in occupation of Mohd. Ahmed, a tenant at Rs. 50.00 per month. The portion marked 'B' on first floor is in dispute in this revision.

(3.) On 5th August, 1967 a final decree for partition in terms of the report of the Local Commissioner dated 2nd August, 1967 was passed. In other words, the ground floor portion marked 'D' and the first floor portion marked 'F' in occupation of the two tenants Mohd. Ahmed and Akhtar Ali and portion marked 'B' on the first floor in occupation of defendant No. 1, Mst. Munawar Jehan and portion 'A' on second floor in occupation of the plaintiff were allotted to the plaintiff in the final decree for partition. An appeal was filed by the defendants (R.F.A. No. 94 of 1968) but it was dismissed on 7th May, 1973.