ABDUL MAZID KHAN Vs. ABDUL RASID KHAN

JUDGEMENT

(1.) This Letters Patent Appeal has been preferred by the unsuccessful first defendant questioning the correctness of the judgment and decree passed by the learned Single Judge of this Court in F.A. No. 179 of 1982 urging various facts and legal grounds to set aside the same and prayed for dismissal of the suit. Relevant brief facts as stated herein below for the purpose of meeting out rival legal contentions between the parties, for the sake of convenience rank of the parties assigned before the trial Court is adverted in this judgment.

(2.) The suit was filed by the deceased plaintiff-Abdul Rashid Khan claiming to be son of late Ramjan Khan and therefore he is entitled a share in the suit schedule property by originally impleading the first defendant as a party to the defendants. Subsequently, Pairan Bibi, wife of Sadat Ali and Maiman Bibi, wife of Kuanar Khan were impleaded as defendant Nos. 2 and 3 to the original suit proceedings. It is the case of the plaintiff that the plaintiff himself and the defendants are Muslims of Suni Sect and they are governed by Hanafi School of Mohammedan Law.

(3.) The case of the plaintiff is that Ramjan Khan, the father of the plaintiff and the first defendant died in the year 1949 leaving them as his two sons and Widow Sairun Nisa Bibi, who died on 15.08.1980. It is his further case that the properties described in schedule of property stands recorded in the name of Late Nawaj Khan, the grandfather of the parties and some of the properties also stand recorded in the name of Zahooran Bibi, the grandmother and some properties stand recorded in the name of Ramjan Khan which were acquired by them. It is the further case that after demise of Ramjan Khan and Zahooran Bibi, their only son, namely, the alleged father of the plaintiff, who is the son of Late Nawaj Khan, became the absolute owner of the property and after the death of Ramjan Khan and his widow Sairun Nisha Bibi, the plaintiff and the first defendant had become the owners of the properties being entitled to 8 anas share by each one of them. Since properties were not partitioned by metes and bounds, it is the parties who were in joint possession and enjoyment of the suit properties by way of mutual arrangement.