MOHD. AMIRULLAH KHAN Vs. MOHD. HAKUMULLAH KHAN

JUDGEMENT

(1.) THE appellants filed a suit for declaration and possession in respect of Municipal House No. 1995 situated at Mohalla Hatai of Paithan District, Aurangabad. There was also a prayer for perpetual injunction restraining Respondents 1 and 2 from interfering in the possession of the appellant -plaintiffs.

(2.) BRIEFLY stated the averment in the plaint was that the father of the plaintiffs, Abdullah Khan, had three wives. The plaintiffs are the sons and daughters from the third wife. Abdullah Khan had bought the two adjacent houses in the name of Plaintiff 1 and his brother one Nazifulla Khan. Nazifulla Khan died when Abdullah Khan was still alive. It was alleged in the plaint that thereafter Amirullah Khan, Plaintiff 1, became the sole owner. It was further the case of the plaintiffs that Defendant 1 was a son from the second wife of Abdullah Khan and Defendant 2 was the daughter of the plaintiffs deceased brother. The said brother who was father of Defendant 2 had died at the time when Abdullah Khan was still alive and the son from the second wife Lutfulla Khan, father of Defendant 1, had also died earlier than Abdullah Khan. According to the plaintiffs, their mother brought to the house Defendants 1 and 2 and looked after them and permitted them to reside in the house in question.

(3.) IN our opinion, the High Court fell in error in not going into the question as to in whom the title vested on the death of Abdullah Khan. It is not in dispute that all the legal heirs of abdullah Khan were impleaded as parties to the suit. The surviving sons and daughters were impleaded as plaintiffs. Once it is found that Plaintiff 1 was merely a benamidar of his father Abdullah Khan, then the question would arise that on the death of Abdullah Khan who would become the owner of the property. It is not disputed, and in our opinion rightly so, that the plaintiffs, namely, the surviving sons and daughters of Abdullah Khan would become the owners of the property in question. This being so, the High Court fell in error in reversing the concurrent judgment of the Courts below which had held the plaintiffs to be the owners of the property.