SHEIKH IKAR Vs. SHEIKH SHAMIM AHMAD

JUDGEMENT

(1.) He is heard. This revision is by defendant in civil suit No.10 A/2005. It is directed against the judgment dated 21.02.2008 passed by Additional District Judge. Barwah district West Nimar in C.R.A.No.54A/2005. By the order impugned, the lower appellate Court has set aside the order dated 15.10.2005 passed by Civil Judge. Class-II, Sanawad in civil suit No. 1 OA/2005.

(2.) Respondents No. 1 to 3 herein have filed a suit for declaration, partition and separate possession in respect of the properties of late Sheikh Nannu, who died intestate. The plaint allegation is that respondents No. 1 to 3 are sons of Sheikh Nisar. who happened to be one of the sons of Sheikh Nannu. The applicant in this revision is the real brother of Sheikh Nisar. After institution of the suit, applicant filed an application under Order 7 Rule 11 CPC praying for dismissal of the suit on the ground that under Mahomedan law; sons of a pre-deceased son are not legal heirs of the property of their grand father. Learned trial Judge accepted the application and dismissed the suit. Against which an appeal was preferred and by the order impugned, it was allowed and the order passed by the trial Judge was set aside and the case was remanded back to the trial Court for a decision on merit. The present revision is directed against the order passed by the appellate Court.

(3.) Shri Mehta, learned counsel appearing for the applicant vehemently argued that the legal position under the Mahomedan law is clear and as such the suit filed by non-applicants No.1 to 3 was not maintainable. Thus, according to him, lower appellate Court committed a grave error of law in allowing the appeal and setting aside the order passed by the trial Court.