NOORBAKSH KHAN Vs. SALIM KHAN

JUDGEMENT

(1.) This appeal under section 100 CPC by the plaintiff is directed against the concurring judgment and decree dated 29/06/2012 passed in civil appeal No.14A/2011 (old No.4A/2009) by II Additional District Judge (Fast Track Court), MUngawali, District Ashok Nagar affirming the judgment and decree passed by the trial Court dated 04/05/2009 in civil suit No.4A/2008, plaintiff's suit for declaration and permanent injunction has been dismissed.

(2.) Facts necessary for disposal of the appeal in narrow compass are to the effect that plaintiff, defendants No.1, 2 and 3 are real brothers and defendant No.4 is real sister of these persons. There was another sister who had died on 16/03/1999. Plaintiff and defendants are sons and daughter of late Noor Mohammad . Noor Mohammad died on 03/03/1988 and his wife, Gulshanbi died on 15/11/1996. The suit property is an agricultural land falling in survey No.52 area 0.408 hectare village Kasba Range Mungawali (hereinafter referred to as 'the suit land'). The suit property was purchased in the name of Noor Mohammad from one Dhyan Mohammad vide registered sale deed dated 03/10/1973. During pendency of the suit, two sons of late Noor Mohammad, namely; Bhure Khan and Ismail Khan have died. Heirs of Bhure Khan are respondents No.2 & 3 and heirs of another son, Ismail Khan are respondents No.4 to 8.

(3.) As per plaint allegations, 38 years ago, late Noor Mohammad had partitioned the immovable property, a house amongst his 04 sons and they are living independently in their respective portions of the house. As during that time, the plaintiff was minor, he has been living with his parents. Plaintiff claimed to be in possession over the suit land since the time of his father and doing cultivation. According to plaintiff, adjacent to the suit land, an area of 1.045 hectare out of 4.306 hectare falling in survey No.51 was purchased by the plaintiff by registered sale deed 05/06/1979 and marked (Batakan) division No.51/2. Late Noor Mohammad during his life time has executed a 'will' dated 05/02/1987 primarily in favour of his wife, Gulshanbi. The aforesaid suit land was bequeathed in her favour with further stipulation that after her death, the same shall devolve upon the plaintiff. Defendants' in collusion with the revenue authorities got their names mutated in the revenue record as regards suit land without knowledge to Gulshanbi. The plaintiffs' mother came to know the fact of mutation after obtaining certified copy from Patwari on 21/08/1995. Therefore, against the aforesaid mutation order, an appeal No.86/9495 was filed before the SubDivisional Officer and during pendnecy of the appeal, Gulshanbi died. The plaintiff's name has been substituted as per the 'will' executed by late Noor Mohammad. However, the appeal was dismissed by an order dated 04/02/1999 on the ground that the original 'will' was not produced in support of claim of the plaintiff. Being aggrieved thereof, the plaintiff has filed the suit for declaration and permanent injunction.