KUTUBUDDIN Vs. TAHIR KHAN

JUDGEMENT

(1.) This Second appeal under Sec. 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants (Lrs. Of original plaintiff Kutubuddin) against the judgment & decree dtd. 27/10/2004 passed by 3rd Additional District Judge, Gwalior in Civil Appeal No.32A/2003 reversing the judgment & decree dtd. 30/8/2003 and allowing the cross-objection of respondents/defendants passed by VI Civil Judge Class-1, Gwalior in Civil Suit No.102A/98, by which, the learned Civil Judge had partly allowed the suit to the extent that the sale deed dtd. 8/1/1985 is null & void, however, the relief for recovery of possession was denied.

(2.) The undisputed facts of the case are that the house No. 18/581, 49/1053 and new house No. 53/59 shown in the plaint map are situated at Mohalla Channa Kothar, Kampoo, District Gwalior (hereinafter referred to as "property in dispute"). It is also not in dispute that the aforesaid property was in the ownership and possession of one Gulam Moidden Khan, who was the father of original plaintiff Kutubuddin, original defendant No.2 Yakub and their sister Musammat Kallo who was arrayed as plaintiff No.-2 at the time of filing of suit; however, later on she did not support the plaintiff and arrayed as the defendant. The fact that plaintiff and defendants belong to Sunni Muslim Community is not in dispute. It is also not disputed that Gulam Moidden Khan died in the year 1978.

(3.) The further pleading is that the property in dispute is ancestral property of plaintiff Kutubuddin and defendant No.-2/Yakub Khan and Must. Kallo. One portion of the ancestral house shown in blue lines in the plaint map was sold to Smt. Krishna Kumari by Gulam Moiddeen Khan father of plaintiff and defendant No. 2 and rest of the portion was mortgaged with Kuwar Pratap Singh Chauhan on an amount of Rs.3,500.00. The plaintiff after making entire payment had freed the mortgaged property. The plaintiff and defendant No. 2 lived together for a period of one and half year after the death of their father and thereafter started living separately. The plaintiff is living in the southern part of the disputed property at ground floor and defendant No. 2/Yakub was living at First Floor of the southern part of disputed property. The defendant No. 2 was not living in the disputed property prior to two years of filing of the civil suit by the plaintiff and is started living in his in-laws house (his wife's parental home). The defendant No. 1 Tahir Khan was living in the southern part of the disputed house at ground floor as a tenant and had not paid the rent of the tenanted house. The defendant No. 2 had constructed his own home at Appa Ganj.