HAKIM RIYAZUL ISLAM Vs. USMAN ALI SABRI

JUDGEMENT

(1.) S. U. Khan, J. Heard learned Counsel for the parties.

(2.) A double (or triple) storied house situate in Mohalla Khokharan Moradabad (hereinafter referred to as house in question) was admittedly owned by Smt. Taiyaba Khatoon who died issueless on 5-9-1945. She left behind her husband Mahboobur Rahman and her brother Mohd. Sami as her heirs. These two persons died in 1953. It is alleged that Mohd. Sami left behind four sons and two daughters however in respect of matter in dispute only two of the sons of Mohd. Sami are relevant, i. e. , Mohd. Rafi and Mohd. Razi. The other two sons and two daughters are reported to have migrated to Pakistan. Respondent No. 3 Smt. Akhtar Jahan is widow of Mohd. Rafi (Mohd. Rafi died in 1997 ). Mohd. Rafi claimed that Smt. Taiyaba Khatoon had executed a Will in his favour in the year 1943. Respondent Nos. 1 and 2 Usman Ali Sabri and Zafar Iqbal purchased the house in question from Smt. Akhtar Jahan widow of Mohd. Rafi in the year 1999. Late Mohd. Rafi let out the first floor of the house in question to one Abdul Rauf in or about 1950. Mohd. Rafi let out the ground floor of the house in question in or about 1960 to Hakim Ziaul Islam respondent No. 4 and real brother of the petitioner. The dispute in the instant writ petition relates to the ground floor of the house in question.

(3.) AS far as first floor of the house in question is concerned which is not in dispute in this writ petition it was let out by Mohd. Rafi to Abdul Rauf. Mohd. Rafi filed suit for eviction against Abdul Rauf, which was decided in terms of compromise and Mohd. Rafi agreed that he would not evict Abdul Rauf who started paying rent to him. Thereafter Mohd. Rafi alleged that Ziaul Islam and his brother took forcible possession of first floor or part thereof. Mohd. Rafi filed original suit No. 511 of 1978 against Riyazul Islam and his brothers for their eviction from first floor. The said suit is still pending.