LAWS(BOM)-2019-1-58

IBRAHIM S/O. BABULAL SHAIKH Vs. ABBAS KADRI

Decided On January 18, 2019
Ibrahim S/O. Babulal Shaikh Appellant
V/S
Abbas Kadri Respondents

JUDGEMENT

(1.) Present application has been filed for granting certificate of fitness for filing appeal before the Hon'ble Supreme Court of India, under Article 134A of the Constitution of India, along with Articles 132 and 133 of the Constitution, as well as (Order) (4) Civil Appln. No. 07703 of 2018 relevant provisions of the Supreme Court Rules and the Bombay High Court Appellate Side Rules, 1960.

(2.) Present applicants are the original defendants. They want to challenge the order of this Court dated 18-07-2017 passed in Second Appeal No. 460 of 2017, confirming the judgment and decree dated 28-02-2017, passed by learned District Judge-2, Osmanabad, in Regular Civil Appeal No. 37 of 2009, thereby dismissing their appeal and confirming the judgment and decree passed by learned Civil Judge (Junior Division), Tuljapur, District Osmaabad, on 17-01-2009 in Regular Civil Suit No. 102 of 1997.

(3.) The facts are required to be taken into consideration in nutshell. Plaintiff claim that one Akbar Kasim was his brother, who had died issue-less on 26-03-1997, leaving behind two widows i.e. defendants no.03 and 04. Defendant no.03 is the brother defendant no.04. Defendant no.02 was having two sons, namely, Ibrahim and Ismail and three daughters, namely, Hamidabee, Nafisa and Ahmadbee. Aadam is the son of Hamidabee, that means, grandson of defendant no.02. Akbar was the owner of land Gut No. 131, admeasuring 09 hectares 20 R. Out of that, he alienated 03 hectares 88 R to different persons. It is stated that, those alienations are without consideration. At the time of his death, he was having 05 hectares 32 R. It is stated that, (Order) (5) Civil Appln. No. 07703 of 2018 defendant no.02 was residing with Akbar since the marriage of defendant no.04 and he had intention to grab the property of the deceased by defeating rights of the plaintiff. Defendants no.03 and 04 colluded with each other and got the sale deed executed on 24- 02-1997 in the name of fictitious person by name, Ibrahim Akbar Kasim Siddiqui. The said sale deed is sham, bogus and without consideration. Defendant no.01 is posing himself to be the son of deceased Akbar. However, he has no right, title and interest over the suit land. As per the plaintiff, after demise of Akbar, defendants no.03 and 04 inherited 1/4th share in land Gut No. 131 and he is owner of rest 3/4th share as per the provisions of Muslim Law. Thus, he filed the suit for declaration of title and in the alternative, for partition and separate possession.