SHEIKH MINZAR HUSSAIN Vs. MOHD ASGHAR

JUDGEMENT

(1.) THIS is a plaintiff' s second appeal arising from a suit for cancellation of a sale-deed executed by the second defendant in favour of the first defendant in respect of certain land described at the foot of the plaint to the extent of 1/5th share and for partition of the plaintiffs share in the land in suit.

(2.) THE plaintiffs' case was that Karim Bux, father of the second defendant was the owner of the house in dispute. Karim Bux died leaving behind him his son, defendant No. 2 and three daughters, Smt. Mehtabi, Smt. Sughra and Smt. Sayyedan. THE share of Smt. Mehtabi in the house was one fifth. Smt. Mehtabi owed a debt to Sheikh Mohammed Yusuf, the father of the plaintiffs, in respect of which Sheikh Mohd. Yusuf filed a suit in the Small Cause Court. Sambhal, being Suit No. 46 of 1940. THE suit was decreed against the assets of Smt. Mehtabi and in execution of the said decree Sheikh Mohd. Yusuf purchased Smt. Mehtabi' s 1/5th share in the house in suit on Dec. 1. 1943 and obtained possession over it. Sheikh Mohd. Yusuf then became co-sharer in the house in suit to the extent of l/5th share. He died leaving the plaintiffs as his heirs. It was further alleged that during his lifetime Sheikh Mohd. Yusuf had gifted his entire property in favour of the first plaintiff and accordingly the whole of the l/5th share in the house in suit came to belong to the first plaintiff. THE second defendant removed and misappropriated materials of the house on March 6, 1963, and sold the entire land pertaining to the house to the first defendant and during the plaintiffs' absence the defendant No. 2 converted the land into an ahata hence the suit.

(3.) THE trial court found on issue No. 1 that the plaintiff No. 1 had no share in the land in suit; and on issue No. 2 it found that the suit was barred by estoppel and acquiescence. In the result, the trial court found that the plaintiffs were not entitled to any relief and dismissed the suit.