MOHAMMAD MUSTAFA Vs. AKBAR ALI AND ORS

JUDGEMENT

(1.) Being aggrieved and dis-satisfied with order dated 20.9.2018, passed by the learned Senior Civil Judge, Court No.1 Sundernagar, District Mandi, H.P., whereby an application under Order 14 Rule 5 read with Sec. 151 CPC, praying therein for framing of additional issues, having been filed on behalf of the petitioner/defendant (hereinafter referred to as the defendant) came to be dismissed, defendant has approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to allow the aforesaid application and issue direction to the court below to frame additional issue as farmed in the application referred here in above.

(2.) Briefly stated facts as emerge from the record are that by way of an application under Order 14 Rule 5 read with Sec. 151 CPC, defendant prayed for framing of additional issue to the effect that Khadim Ali, died in the year, 1947. Plaintiffs filed suit for declaration and permanent prohibitory injunction under Sections 34, 37 and 38 of the Specific Relief Act, praying therein for decree of declaration to the effect that mutation No. 810 dated 3.10.1990, is null and void and does not confer any right on the defendant and similarly, the alleged Will of Khadim Ali be declared null and void being concocted one. Aforesaid suit having been filed by the plaintiff came to be resisted by way of written statement filed by defendant No.1.

(3.) Close scrutiny of pleadings adduced on record by the parties suggests that the plaintiff claimed succession qua the estate of one Khadim Ali. As per pleadings available on record, Khadim Ali died in the year, 1947. Respondents/plaintiffs claimed that Khadim Ali never executed any Will and Will, if any, is null, void, wrong and illegal because parties belong to Sunni community and are governed by the Mohammadan law and as such, Khadim Ali could not have executed the Will. Plaintiffs also challenged the Will and subsequent mutation No. 810, dated 3.10.1990. Defendant contested the suit on the ground that Khadim Ali bequeathed the land in favour of the defendant and mutation No. 810 dated 3.10.1990, is legal and void. On the pleadings of the parties, court below framed following issues:-