ABDUL AZIZ Vs. ABDUL ATEEQ

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 24-12-2003 passed in Regular Civil Suit No. 153-A/2000 by the II Additional District Judge, Bhopal, whereby the suit filed by the respondent has been decreed. Originally M.C.C. was filed by the appellants, which under the order of the Court, has been converted into the first appeal and is registered as such. Brief facts giving rise to filing of this appeal are that the respondent/ plaintiff claiming himself entitled to grant of decree of declaration and possession, filed an application for grant of permission to file the suit in forma pauperism as indigent person. Upon due consideration, the Court below reached to the conclusion that the respondent was liable to pay the Court fees and upon payment of the Court fees, regular civil suit was registered. The claim made by the respondent/plaintiff in the suit was that the property in dispute originally belongs to one Abdul Shakur, who died leaving behind his widow Rehman Bi, who also died in the year 1978. There were three legal heirs of the aforesaid persons, namely Abida Sultan, Abdul Aziz (original defendant No. 1) and Abdul Latif, Said Abdul Latif died issueless. His wife, who was pregnant at that time, remarried and the respondent/plaintiff born. The property was to be distributed amongst the aforesaid three persons as per the Mohammaden Law but instead of distributing the said property, 1/2 each share was kept by Abida Sultan and Abdul Aziz. Later on Abida Sultan executed a Will in favour of the respondent/plaintiff bequeathing the aforesaid property to the respondent/plaintiff. A relinquishment deed was also executed in between Abida Sultan and Abdul Aziz settling their right on the suit property and accordingly the plaintiff/respondent became the owner of the property after the death of Abida Sultan, who died on 20-2-1997. Since the appellants were interfering in the rights of respondent/plaintiff, the suit was required to be filed.

(2.) The said claim of the respondent/plaintiff was contested by the appellants and a written statement was filed stating that the aforesaid Abida Sultan alone was not the owner of the property. As per the Muslim Law, the respondent/plaintiff was not entitled to any claim. In fact a Hibanama was executed by Abida Sultan on 16-2-1980 and a part of the property was gifted to Iftikhar Ahmed, Akeel Ahmed and Nafees Ahmed. After the gift executed by said Abida Sultan, the map was got sanctioned by the original defendant Abdul Aziz and a house was got constructed on the said plot. Thus, it is contended that the alleged Will said to be executed by Abida Sultan was fraudulent document. No relinquishment deed was ever executed by the original defendant Abdul Aziz and as such the respondent/plaintiff was not entitled to any right over the suit property. Further it was contended that the appellants/defendants have never taken forceful possession of the property in suit. In fact throughout they were in possession of the suit property. It was contended that since respondent/plaintiff was not a kin out of the wedlock of Abdul Latif and his wife, he was not entitled to claim any share in the property. During the pendency of the civil suit, since the original defendant No. 1 Abdul Aziz died, his widow, one son and a daughter were substituted as his legal representatives. The appellants No. 2 and 3, though are the legal representatives of aforesaid Abdul Aziz, were already impleaded as defendants in the suit.

(3.) The trial Court framed the issues on the basis of the pleadings of the parties, recorded the evidence and after hearing the final arguments, decreed the suit in favour of respondent/plaintiff by the impugned judgment and decree. Hence, this appeal is required to be filed.