NASIMBI ABDUL GAFFAR Vs. SINDHUTAI MADHUKAR MALLEWAR

JUDGEMENT

(1.) BY invoking the jurisdiction of this Court under section 100 of the Code of Civil Procedure, this second appeal has been filed by the unsuccessful original defendants being aggrieved by the judgment dated 26-10-1989 of the learned Additional District Judge in Regular Civil Appeal No. 59 of 1983, whereby the appeal came to be allowed and the judgment and decree passed by the trial Court on 11-4-1983 in Regular Civil Suit No. 43 of 1975 was set aside and the Appellate Court granted decree for partition and separate possession by allotting 4/9th share to the original plaintiff Balaji Patil and allowed the defendants, who are the legal representatives of Zaibunnisa, to retain the land to the extent of 5/9th share and rejected the claim of the plaintiff Balaji Patil for mesne profits.

(2.) THIS litigation has a chequered history. One Abdul Rahim Patwari is the owner of agricultural lands, which were total 13 fields in number, admeasuring 30. 57 acres. He died in the year 1943 leaving behind him his heirs. The genealogical tree is not in dispute which is as under ; abdul Rahim Patwari (died in 1943) Hajrabi (died in 1957)_____________|___________________ i I abdul Hai (died in 1950. Zaibunnisa (died in 1974)______i______ _____________ Azimunnisa Nasimunnisa I I i i i i nasimbil Rafiq Begam Anisa Begam Moh. Shafiq (def. No. 1) (def. No. 2) (def. No. 3) (def. No. 4)Abdul Rahim died in 1943 leaving behind Hajrabi, his son Abdul Hai ana daughter Zaibunnisa. Hajrabi also died in the year 1957. Abdul Hai also died in 1950 leaving behind his daughters Azimunnisa and Nasimunnisa. Zaibunnisa died on 4-11-1974 leaving behind her three daughters, namely nasimbi, Rafiq Begam, Anisa Begam and son Mohammad Shafiq Hussain.

(3.) IT is contended that Abdul Rahim was working as Patwari and had purchased the property described in Schedule A benami in the name of mazharullah, the brother of the wife of Abdul Rahim and the property described in Schedule A is admeasuring 30. 57 acres in all. Said Mazharullah claimed himself to be the real owner and transferred by sale the whole of the property described in Schedule A to various persons including the original plaintiff Balaji Patil. Therefore, after the death of Abdul Rahim, Hajrabi, daughter Zaibunnisa and the grand daughters Azimunnisa and nasimunnisa has filed Regular Civil Suit No. 24-A of 1955 against Balaji patil and others for possession as well as permanent injunction restraining them from interfering into the peaceful use and enjoyment of the agricultural land described in Schedule A annexed to plaint in that suit. This suit was decreed by the Civil Judge, Jr. Dn. , by the judgment and decree dated 20-12-1956. Balaji Patil being aggrieved by the said judgment and decree carried appeal to the District Court which was registered as Civil appeal No. 7-A of 1957. The learned Additional District Judge dismissed the said appeal on 24-3-1958. Therefore, Balaji Patil being dissatisfied with the judgment of the Additional District Judge preferred second appeal in the High Court which was registered as Second Appeal No. 143 of 1958. During the pendency of the said second appeal, Azimunnisa and nasimunnisa transferred their shares in the property described in Schedule A in favour of Balaji Patil and thereafter these two sisters, namely azimunnisa and Nasimunnisa, compromised the litigation in respect of their shares in the suit property with Balaji Patil and both the sisters agreed the Balaji Patil has acquired the full and indefensible title in their own entire share and interest in the suit property. This Court recorded the said compromise on 16-9-1963 and the compromise decree was (Ex. 43) was drawn in terms of the compromise petition (Ex. 54) dated 14-11-1960. Consequently, the second appeal in respect of the shares and interest of Azimunnisa and Nasimunnisa was allowed and the suit to that extent was dismissed.