LAWS(ALL)-2005-2-84

MIRZA ASHRAF Vs. QUDRAT ULLAH ALIAS CHHUNNOO

Decided On February 02, 2005
MIRZA ASHRAF Appellant
V/S
QUDRAT ULLAH ALIAS CHHUNNOO Respondents

JUDGEMENT

(1.) Second appeal in hand has been instituted by the plaintiff appellant impugning the judgment and decree dated 2.3.1984 passed by IIIrd Additional Civil Judge, Varanasi whereby Civil Appeal No. 217 of 1983 was dismissed and judgment and decree dated 23.5.1983 in Original suit No. 356 of 1979 was nodded in affirmance.

(2.) The dispute in the instant petition revolves round House No. B-3/430 enumerated in Schedule B to the plaint, which is situated in locality known as Shivala District Varanasi. According to the plaint allegations, the house in question originally belonged to Rahmat Ullah, grandfather of the plaintiff appellant. The aforesaid Rahmatullah executed a Will dated 12.5.1913 in favour of Asmat Ullah, his own brother but subsequently, on a second thought, he, rescinded his earlier Will and executed a second Will dated 19.5.1917 in favour of his daughter-in-law namely, Jafri Khanam, wife of Amir Mirza. The plaintiff being grand-son of Rahmat Ullah, it is claimed by the plaintiff appellant, the property devolved upon him and he became the exclusive owner of the property in question. In the above perspective, a notice was served to defendant seeking ejectment from the property in question. The defendant in replication to the notice, claimed himself to be the exclusive owner of the property. To be precise, he denied any ownership rights of the plaintiff in the house in question and claimed himself to be the exclusive owner of the house in question. In consequence, the plaintiff sued the defendant by means of suit aforestated for the relief of possession and ejectment.

(3.) From a perusal of written statement, it would transpire that the defendant denied plaint allegation and set up the plea that that the property in question including two other houses originally belonged to his maternal grand father and subsequently, all the three brothers namely, Rahmat Ullah, Asmat Ullah and Barkat Ullah were given one house each and their names came to be record in the Municipal record separately and the house in question came to be recorded in the name of Asmat Ullah father of the defendant. The house in question fell to the share of Asmat Ullah and ever since then, he came into exclusive possession of the said house. It is asserted in the written statement that the Will dated 19.5.1917 was neither executed within the knowledge of any one of them nor was it effectuated during all this period. The defendant also set up the plea of adverse possession stating that he has endured in actual possession over the house in question for more than 12 years at least since 11.5.1964 on which date the application for mutation made by plaintiff appellant, came to be rejected and by any reckoning, he acquired right over the property by adverse possession. In replication, the plaintiff, repudiated the right of defendant on the basis of adverse possession stating that it was pleaded for the first time on 11.8.1978 and by this reckoning, proceeds the submission, the right by adverse possession, cannot be said to have matured.