RUKAYYA BAI Vs. MUNNI BAI

JUDGEMENT

(1.) THIS second appeal under Section 100, CPC is directed against the judgment/decree dated 23-12-94 passed by the Additional Judge to the Court of District Judge, Hoshangabad in C. A. No. 34-A/87 reversing the judgment/ decree dated 8-5-87 decreeing C. S. No. 15-A/86 for declaration and injunction.

(2.) THIS second appeal under Section 100, CPC has been admitted on the following substantial question of law:-

(3.) THE facts in brief are, that Fida Hussain and Abdul Hussain were brothers. The suit house Nos. 138, 139, 140 Ward No. 10, Pipariya, District Hoshangabad situated on land bearing Khasra No. 161/2 plot No. 43, area 2500 sq. ft. was the matter of dispute between two brothers. Abdul Hussain instituted C. S. No. 4-A/49 against Fida Hussain and the said suit was decreed on 12-11-50. First Appeal No. 4/51 arising out of said judgment/decree was preferred by late Fida Hussain. Fida Hussain since dead, legal heirs Tahir Ali, Tayyab Ali, Hussain Ali (defendant No. 3) and others were brought on record. During continuance of the appeal financial condition of legal heirs since was not satisfactory, they agreed and settled that late Tahir Ali alone will prosecute the matter in First Appeal No. 4/51 at his expenses. In the event Tahir Ali wins the case he alone will be the owner of the disputed house and rest of the legal heirs shall not claim any right, title or interest in the suit property. In case he looses the case he will not be entitled to recover any expenses and cost from the remaining legal heirs. Late Tahir Ali prosecuted the appeal and succeeded in it vide judgment dated 29-3-57. By this judgment in first appeal C. S. No. 4-A/49 filed by Abdul Hussain against Fida Hussain was dismissed. On 17-5-57 the family members recorded a memorandum of settlement in favour of late Tahir Ali that he alone has become the owner of the suit house and plot and that with his permission Hussaina Ba, Hussain Ali, Altahrakhi lives in a portion of the house. These documents (Exs. P-3, P-4) were unregistered and signed by all the legal heirs of the deceased Fida Hussain.