TAJ MOHAMMAD Vs. ALYAS MINOR

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 30th March, 1972 passed by the Sub Judge Second Class, Jagadhari and judgment dated 6th June, 1979, passed by the Additional District Judge, Ambala.

(2.) BRIEFLY stated, the facts of the case are that one Daraz had gifted share of his land in favour of his two daughters, namely, Mst. Aishan and Fatti, and the other share of Daraz had gone to his wife Bholi. Aishan died in 1962. After her death, her sister Fatti filed a suit claiming the property belonging to Aishan. The property belonging to Mst. Aishan was also claimed by the collaterals of Daraz who are the appellants in the present appeal. The said suit filed by Fatti finally culminated in the judgment dated 20th January, 1977, and appeal arising out of the same was filed in the High Court, bearing RSA No. 276 of 1996, and this Court held that Fatti was entitled to the share of the land belonging to Mst. Aishan and the collaterals were not entitled to this share. It may be relevant to point out here that during the pendency of the aforesaid appeal, RSa No. 276 of 1966, Fatti had also died and Alyas, who is respondent No. 1 in this case was impleaded as L. R. of Fatti. Suit No. 330 of 1969 was filed by Alyas for permanent injunction against the collaterals of Daraz (who are appellants in this appeal) and Asghree, daughter of Fatti (who is respondent No. 2 in the present appeal ). Asghree also filed suit bearing No. 332 of 1992 claiming possession of her share, being the daughter of Fatti, against Alyas (respondent No. 1 ). Both the suits bearing No. 330 and 332 of 1969 were consolidated and disposed of by a common judgment dated 30th March, 1972 passed by the learned trial Court. By this judgment, the learned trial court held that the will executed by Fatti in favour of Alyas was a genuine document and as such Alyas was entitled to the property in dispute. In para 22 of the judgment, it was observed that "by virtue of the Will, Alyas is entitled to inherit the property of Smt. Faitti as her heir, though in the absence of the Will and believing that the character of the land remained ancestral, Smt. Asghari was entitled to inherit the property of Smt. Fatti as her natural heir. "

(3.) MR . Avtar Singh Khaira, learned counsel appearing on behalf the appellants, submitted that the learned trial court had given a finding in favour of Alyas on the basis of the will allegedly executed by Smt Fatti and since the aforesaid finding has been reversed by the learned first appellate court, the first appellate court ought to have held that the appellants being collaterals of Daraz were entitled to the property of Fatti, particularly when Asghari had not challenged the judgment passed by the learned trial court.