NASEEM Vs. JAMILAN AND OTHERS

JUDGEMENT

(1.) These two identical regular second appeals, filed by the same appellant, against two sets of impugned judgments and decrees passed by the learned Courts below, by recording concurrent findings of facts, whereby in one case suit for permanent injunction filed by the appellant-plaintiff was dismissed and in other case, suit for declaration and permanent injunction, wherein present appellant was defendant, was decreed, are being decided together vide this common order, with the consent of learned counsel for the appellant, in both these cases, as both these appeals are arising out of similar set of facts regarding same property. However, for the facility of reference, facts are being culled out from RSA No. 830 of 2016 (Naseem v. Jamilan and others).

(2.) Brief facts of the case, as noticed by learned first appellate Court in para 2 of its impugned judgment, are that the parties are Muslim Kamboj by caste and are governed by Mohammedan Law in the matter of succession and alienation. Originally, Mohd. Ibrahim was owner in possession to the extent of half share out of 64 bigha 7 biswa as fully detailed and remaining half share was owned and possessed by Mohd. Hanif and Mohd. Rashid in equal shares vide Sanad Partition order dated 23.07.1998. In September 2000, Mohd. Ibrahim orally gifted land measuring 32 bigha 3 biswas 10 biswasi i.e. share out of suit land to plaintiffs No.1 and 2 in equal share in the presence of parties of suit, relatives, Mohd. Juamil, Mohd. Halim and other respectable persons of society. The said gift deed was accepted by them in presence of plaintiffs No.3 and 4 and defendant. Mohd. Ibrahim also handed over possession of gifted property to plaintiffs No.1 and 2 and Mohd. Ibrahim also handed over four original sale deeds to them. By way of oral gift plaintiffs No.1 and 2 were owners in possession over gifted property. On 25.09.2001 Mohd. Ibrahim executed oral gift deed with regard to above said property in favour of plaintiffs No.1 and At the time of death, Mohd. Ibrahim was not owner in possession of any portion of suit land. The defendants in connivance with revenue officials at the back of plaintiffs got sanctioned nutation No.1618 of inheritance of Ibrahim on the basis of natural succession. So the plaintiffs No.1 and 2 were owners in possession of suit land in equal share. They were also entitled to get the mutation sanctioned in their favour and the alleged mutation No.1618 was illegal, null and void and liable to be set aside. The defendant was also liable to be restrained from alienating the suit property and dispossessing plaintiffs No.1 and 2 illegally and forcibly.

(3.) Having been served, defendant put appearance and filed her contesting written statement, raising more than one preliminary objections. Plaintiffs filed their replication. On completion of pleadings of the parties, learned trial Court in Civil Suit No.120 dated 02.04.2009 framed the following issues: -