SYED HAFIZ MIR Vs. ABDUL NAYEEMKHAN

JUDGEMENT

(1.) This is a Letters Patent appeal by defendant No. 2 against the judgment and decree in second appeal No. 674 of 1950 of Bhutt, J. (as he then was) in favour of the plaintiffs (respondents Nos. 1 to 4) reversing the dismissal of their suit by the two lower Courts. The defendants Nos. 1, 3 and 4 have been made respondents Nos. 6, 7 and 8. Plaintiff No. 5 (respondent No. 5) having died during the pendency of the appeal, her name was struck off.

(2.) The appeal arises out of a suit for partition and possession of their share of certain fields filed by the plaintiffs (respondents Nos. 1 to 4 and the deceased respondent No. 5). The suit was contested by defendant No. 2 (the appellant in this appeal) only. Defendant No. 1 admitted the claim and defendants Nos. 3 to 5 did not file their written-statement.

(3.) The plaintiffs claimed half share in the fields as successors of Rozukhan, the other half being with the defendants, defendant No. 1 getting one-fourth and the rest getting one-fourth. The contesting defendant No. 2, while denying the fields to be the joint property of the ancestors of the parties, had set up title over the same of a certain Dargah of which he claimed to be the Mutwalli. The plaintiffs, anticipating the contest, had pleaded that the decisions in the civil suits between the parties and their predecessors (No. 40-B of 1940 decided on 2lst July 1941 and No. 57-B of 1946 decided on 17th July 1947) operated as res judicata and the title of the parties to the property in suit stood conclusively established.