GULAM RASOOL SAHEB Vs. HAMIDA BIBI

JUDGEMENT

(1.) This is an appeal against the order of the learned District Judge of Trichinopoly, who on appeal from the order of the Subordinate Judge allowed the plaintiff's application for removal of obstruction by the appellant in this civil miscellaneous second appeal and delivery of possession. Page 1 of 4 Gulam Rasool Saheb vs. Hamida Bibi (22.07.1949 - MADHC) 6/19/2007

(2.) The property in dispute and other properties belonged to one Haji Muhammad Ibrahim who died on 17th December 1912. After his death, there was a partition on 18th January 1916 between the two sons of Haji Muhammad, i. e., Peer Muhammad and Sulaiman and in that partition Peer Muhammad got for his share the suit property. On 23rd June 1921, Peer Muhammad settled the property now in dispute on his wife Rahiman Bibi. On 11th September 1922, Rahiman Bibi mortgaged the property to one Sikkandar, the father of the present appellant. In the year 1924, a suit for partition was filed by the two daughters of Haji Muhammad impleading the other sharers as defendants and Rahiman Bibi was impleaded as defendant 6. There was a preliminary decree in that suit on 15th August 1929 which was confirmed on appeal on 4th April 1934 and a final decree was passed on 6th January 1937. While these partition proceedings were going on, Sikkandar, the mortgagee, instituted the suit (O. S. No. 135 of 1929) on foot of his mortgage to which he impleaded as parties the original mortgagor and also the heirs of Haji Muhammad who were subsequently given up as they claimed the suit property by a title paramount. There was a decree, however, against the mortgagor and ultimately after a final decree, the property was sold and was purchased on 2nd November 1932 by the decree, holder, the mortgagee, and the property was duly delivered to him through the Court on 14th October 1933.

(3.) After all this, the persons to whose share the property now in dispute fell in the partition in pursuance of the final decree in O. S. No. 26 of 1925 applied in E. P. No. 414 of 1944 for delivery of possession. It may be mentioned that in the partition in pursuance of the final decree in the present suit, the property was not allotted to Rahiman Bibi but to some other sharer. When this Execution Petition No. 414 of 1944 was filed and the petitioner went to obtain delivery of possession of the property, there was obstruction by the present appellant to the delivery with the result the respondent filed an application in the Subordinate Judge's Court for removing the obstruction and for delivery of possession of the property freed from the obstruction of the appellant. The petition was filed under Section 47, Civil P. C. The present appellant who was the respondent in the counter statement filed by him raised various contentions the chief of which was that the application was not maintainable under Section 47, Civil P. C. as he was not a party to the suit O. S. No. 26 of 1925 in which a partition decree was passed. This objection was upheld by the learned Subordinate Judge and the application was dismissed. On appeal the learned District Judge reversed the decision of the Subordinate Judge and allowed the petition. Hence this second appeal.