KUBRA BEE (SMT.) Vs. MABOOD KHAN AND OTHERS

JUDGEMENT

(1.) The appellant/original plaintiff Smt. Kubra Bee has filed this second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 20.11.2015 passed by the Second Additional District Judge, Seoni, Camp Court Lakhnadon in Civil Appeal No.78-A/2014 affirming the judgment and decree passed on 12.12.2012 passed by the Civil Judge Class-I, Lakhnadon, District Seoni in Civil Suit No. 14-A/2011, whereby the plaintiff's suit for declaration of her share in various disputed lands bearing different survey numbers of village Kahani of Tahsil Ghansour, District Seoni, possession and perpetual injunction has been dismissed.

(2.) Admittedly, late Hafees Khan was owner of the disputed agricultural lands. Late Hafees Khan was having two wives. His first wife Haseem Bee was mother of three daughters Kubra Bee (plaintiff), Fateema Bee and Kaneeja Bee and later on Fateema had migrated to Pakistan and Kaneeja Bee had died. Defendants No.1 to 18/present respondents are children begotten from second wife Ameena late wife of Hafees Khan. Appellant's mother Haseem Bee had died before filing of suit. The pedigree mentioned by the plaintiff in her plaint was admitted by the defendants. The plaint for plaintiff Kubra Bee was filed by his son Akeel Ahmed claiming himself as special power of attorney holder on pleadings that the disputed lands bearing Survey Nos. 140/2,144, 145,148/2,149,216/2,218/2 and 219, whose changed new survey numbers are 351,339,361,340,363,338 and 350 are disputed, which were previously owned by late Hafees Khan, father of the plaintiff, but the defendants No. 1 to 9 after committing conspiracy and by not disclosing names of all heirs of late Hafees Khan got only their names recorded in the revenue record and are cultivating the disputed lands. Thus, the plaintiff is entitled for declaration of her share in disputed ancestral agricultural lands. It was also pleaded in the plaint that previously there were cordial relations among the plaintiff and defendants No.1 to 9 and other defendants and the defendants accepted the shares of all parties in disputed lands and were assured the plaintiff about her share and were timely sending the share of plaintiff in the cultivated crops over disputed lands and grains and mangoes and other fruits, but just about two years ago, defendants No.1 to 9 stopped sending plaintiff 's share to her. Thereafter, plaintiff Kubra Bee demanded partition of her father 's ancestral agricultural lands and at many times she orally requested that half share of her mother be given to her, but defendants No.1 to 9 were adopting delaying tactics. Even the claim of the plaintiff was admitted in reply to the notice sent prior to filing of the suit The ancestral lands of her father were never partitioned among her and all other legal heirs. Thus, the reliefs of declaration to the effect that plaintiff is entitled for her mother 's half share in disputed lands and entitled for getting its vacant possession after partition and for perpetual injunction after partition that the defendants or their agents should not interfere in possession and use of share of the plaintiff in the disputed lands were sought by plaint.

(3.) In joint written statement filed by the defendants No. 1,2,3,4 and 10, the pedigree given by the plaintiff was admitted, but substantially denying the plaintiff 's main pleadings, it has been pleaded that about 30-40 years ago, all share-holders in disputed lands have received land or cash amount in accordance with their necessities and convenience and in consonance with above, disputed lands were partitioned and mutated in revenue records. Thereafter, disputed lands are recorded in the names of defendants in revenue record and the recorded owners are being continued in possession of relating lands. Actually, plaintiff Kubra Bee after her marriage lived in her in-laws' house and in such circumstances, the elders of both parties got adjusted the share of plaintiff Kubra Bee and her other real sisters by providing them cash amount and in accordance with the family settlement and mutual consent, the disputed lands were handed over to the children of Hafees Khan's second wife Ameena Bee and this settlement is being continued for about last fifty years. The plaintiff has not properly valued the suit and alleged special power of attorney holder and relating affidavit are forged and fabricated. It was prayed that the suit filed by the plaintiff be dismissed.