ABDUL RAHIM Vs. ABDUL HAMID THRU. NAJMA

JUDGEMENT

(1.) Heard on the question of admission.

(2.) The plaintiff No.1 Abdul Rahim has filed this Second Appeal against the judgment and decree dated 28.10.2015 passed by the Civil Judge Class-I, Neemuch by which Civil Suit filed by him along with his three brothers has been dismissed and also against the judgment dated 08.04.2016 passed by the Additional District Judge, Neemuch by which First Appeal filed by him has been partly allowed.

(3.) The plaintiffs No.1 to 4 being son of Abdul Rahman filed the suit for permanent injunction and declaration in respect of land bearing survey No.2398, 2400, 2401, 2403, 2405 and 2406 total area 2.789 hectare of Neemuch City and also challenged the sale deed dated 18.10.2010. As per pleading in the plaint father of plaintiff - Abdul Rehman, father of defendants No.1 to 3 - Abdul Aziz, father of defendants No.4 and 5 - Abdul Hakim and father of defendant No.6 - Ibrahim are the real brother. Since all of them have been expired, therefore, the suit was filed by legal heir of Abdul Rehman against the legal heir of late Abdul Aziz, late Abdul Hakim and late Ibrahim. The defendant No.1 is of unsound mind and since last 15 years living with his wife. As per pleading the suit land is of ownership and is in possession of the plaintiff in which the name of defendants are recorded for the namesake in the revenue record. In the year 1958 the father of plaintiff i.e. Abdul Rehman had purchased the said property from his self income from Dr. Bhargav and Raghuprasad and obtained the possession. One Chunnilal filed the suit against Abdul Rehman which was dismissed by the High Court and the Abdul Rehman was found into the possession and thereafter his name was recorded as Bhoomi Swami. Since Abdul Aziz, Abdul Hakim and Ibrahim were the real younger brother, therefore, Chunnilal has filed the suit against them also but they had no title rights over the suit property. Abdul Rehman has died 66-67 years back and thereafter the plaintiffs are in possession peacefully, therefore, by way of adverse possession they have become owner. It was further pleaded that in the year 1970 the defendant has admitted before the Panchayat that they are not having any right over the suit property and Abdul Rehman would contest the entire Civil Suit filed by Chunnilal. The defendant in order to take advantage of the names of their father in the revenue record filed an application before the Tehsildar seeking partition which was registered as Case No.20/A-27/2002-07. The father of the plaintiff filed the reply to the said application raising objection about the maintainability of the proceeding filed under Section 178 of the MPLR Code. The said objection was turned down by the Tehsildar, therefore, it has become necessary for the plaintiffs to file the suit for declaration of title. The defendant No.8 despite knowledge of the plaint has sold 1/4 portion of the land by registered sale deed dated 18.10.2010 and according to the plaintiff the sale deed is void and not binding. During pendency of the plaint another sale deed dated 27.08.2011 was executed. By way of amendment the plaintiff has challenged the said sale deed also.