BASHIRUDDIN KHWAJA MOHIUDDIN Vs. BINRAJ MURLIDHAR

JUDGEMENT

(1.) By this Letters Patent appeal under the provisions of Civil Procedure Code before amendment of 1976, the judgment of the learned Single Judge dated 14th/21st July, 1967 confirming the judgment and decree of the first Appellate Court, for partition and separate possession of 28/288th share in field Survey No. 187/6 of mouza Malkapur has been challenged.

(2.) The suit has been filed on 30th November, 1940 initially claiming relief in respect of field Survey No. 187/2. By various amendments the description of the property and so also the survey number of the field was changed from 187/2 to 187/6, on the ground of mutual mistake. Initially, the applications for amendment were rejected and suit dismissed. Dismissal was confirmed upto stage of second appeal. However, the amendments came to be allowed by this Court in a Letters Patent Appeal and matter remanded for fresh enquiry (L.P.A. No. 4 of 1947 decided on 13th March, 1952).

(3.) The trail Court after remand held factual issues in favour of the plaintiffs but dismissed the suit as not maintainable on various grounds such as (i) the bar of section 47, Civil Procedure Code, (ii) bar of limitation, and (iii) want of necessary parties. The First Appellate Court allowed the appeal. The second appeal filed by the present appellant [original defendants 12(a) to12(o) and 13] before the High Court was dismissed.