ZAIBUNNISHA Vs. NASEEMA KHATOON

JUDGEMENT

(1.) The present petition has been filed under Article 227 of the Constitution of India for setting aside the order dtd. 20/2/2024 passed by the learned Munsif, Dehri-on-Sone, Rohtas in Execution Case No. 01 of 2013, whereby and whereunder the petition dtd. 23/1/2014 filed by the petitioners under Order 21 Rules 97 and 99 the Code of Civil Procedure, 1908 (for short 'the Code') and also the petitions dtd. 19/4/2018 and 6/9/2018 have been rejected.

(2.) The conspectus of the case, as it emerges from the record, is that one Khadim Khan was the ancestor of the petitioners. Khadim Khan was married with Rabia @ Rabia Khatoon and out of the said wedlock, one son, namely Makdum Khan and three daughters, namely Anisha Khatoon, Kaniz Khatoon and Buchun Khatoon were born. Rabia Khatoon died in the year 1955 and after her death, Khadim Khan solemnized marriage with Ashma Bibi @ Ashma Khatoon and out of the said wedlock, Naseema Khatoon was born. Ashma Khatoon died in the year 1974. Khadim Khan died on 24/12/1984 leaving behind Makdum Khan, Anisha Khatoon, Kaniz Khatoon, Buchun Khatoon and Naseema Khatoon as his legal heirs/representatives. Khadim Khan solemnized marriages of her daughters, Anisha Khatoon, Kaniz Khatoon and Buchun Khatoon during his lifetime and all the three daughters are no more. Further, Makdum Khan died on 24/12/2015, leaving behind petitioners and respondent nos. 2 to 5 as his legal heirs/representatives. Petitioner No. 1 is the wife of Makdum Khan and petitioner nos. 2 to 8 are sons of Makdum Khan. Respondent Nos. 2 to 5 are the daughters of Makdum Khan. Respondent No. 1 is the daughter of Khadim Khan. Khadim Khan and Ashma Khatoon died intestate. It further transpires that Khadim Khan had purchased two properties in the name of his second wife Ashma Bibi @ Ashma Khatoon with following descriptions;

(3.) Learned senior counsel, Mr. Amit Shrivastava, appearing on behalf of the petitioners submitted that the impugned order is not sustainable in the eye of law as it has been passed without consideration of the relevant facts. The judgment debtor of eviction suit, late Hussaini Bhai, was inducted as tenant in the suit premises by father-in-law of petitioner no. 1 and the said tenant, Hussaini Bhai, before leaving to Gujarat, had handed over the possession of tenanted premises to late Makdum Khan and since then the petitioners are in actual possession of the suit premises. Mr. Shrivastava further submitted that respondent no. 1 filed a Mutation Case No. 63 of 1989-90 before Circle Officer, Dehri. During pendency of the said mutation case, an objection was filed by Makdum Khan on 31/7/1989 and the Circle Officer, after perusing the registered gift deed dtd. 18/4/1981, dismissed the mutation case filed by the respondent no.1. Mr. Shrivastava further submitted that Municipal Tax Receipts (Exhibit-B to B/3) were filed on record and the said receipts were issued in the name of Makdum Khan. On the other hand, it is case of the respondent no. 1 that her mother died in the year 1975 and it prima facie shows that late Makdum Khan was in possession of the suit property and the petitioners are not stranger to the suit property and they are having interest in the property. Mr. Shrivastava further submitted that being aggrieved by the order of the Circle Officer, respondent no. 1 preferred an appeal in the court of DCLR but in the grounds of appeal, it has nowhere been stated by respondent no. 1 that her mother had orally gifted the suit property to her whereas it has been stated that the mother of respondent no. 1 was in possession of the property till her death. This shows that the claim of the respondent no. 1, that her mother had gifted the suit property to her, was only an afterthought. Mr. Shrivastava further submitted that observation of the learned trial court that the petitioners were not having any interest in the suit property is an erroneous observation and is completely irrational, unreasonable and without application of judicial mind. Learned senior counsel further submitted that the learned trial court failed to appreciate the fact that Khadim Khan and Ashma Khatoon had died intestate. Mr. Shrivastava further submitted that there is a piquant situation. The learned trial court by judgment dtd. 20/2/1993 passed in Title Suit No. 129 of 1991 has held that registered gift deed dtd. 18/4/1981 is null and void and the first appellate court while upholding the said finding further held in Title Appeal No. 27 of 1993 that respondent no. 1 failed to prove that her mother had orally gifted the suit property to her. This order has not been challenged by the respondent no.1. Once, the respondent no. 1 has failed to prove the oral gift deed in her favour, the property of Ashma Khatoon could only be inherited by the legal heirs of late Ashma Khatoon since she died in 1975 and at that time her husband was alive and therefore, her legal heirs were her husband Khadim Khan and her daughter-Naseema Khatoon, who would inherit the property of Ashma Khatoon. Thus, the property in question was inherited by Khadim Khan and Naseema Khatoon. According to Muslim Law of Inheritance, a husband is entitled to 1/4th share in the property of his deceased wife when there is a child or child of a son. In this manner, after death of Ashma Khatoon, Khadim Khan inherited 1/4th share out of the property pertaining to House situated at Ward No. 3/10, Holding No. 442, Area 2 M.S. Khata No. 243, M.S. Plot No. 573, Old Khata No. 140, Plot No. 1111 situated at Dehri, Dalmiyanagar. After death of Khadim Khan his 1/4 share devolved upon his legal heirs/representatives, i.e., Makdum Khan and his four daughters and in the like manner, after death of Makdum Khan, the petitioners and respondent nos. 2 to 5 inherited the share of Makdum Khan. Mr. Shrivastava further submitted that even if part share has been obtained by the petitioners through inheritance, the petitioners cannot be said to be strangers in respect of the suit property. Mr. Shrivastava further submitted that the learned executing court failed to appreciate that it is well settled law that even a stranger, who has got interest in the property which is subject matter of the execution proceeding, can maintain an application under Order 21 Rule 97 of the Code. Makdum Khan, ancestor of the petitioners, had preferred an application under Order 21 Rule 97 and 99 of the Code on 23/1/2014 and after his death, his son, petitioner no. 2, Anavarul Khan, had filed a petition on 2/7/2016 in Execution Case No. 01 of 2013 informing the learned trial court about death of his father and also gave the details of legal heirs of late Makdum Khan. The petitioners could not be said to be strangers as the petition dtd. 23/1/2014 filed under Order 21 Rules 97 and 99 of the Code was dismissed on the ground that it was not maintainable as the petitioners were not the interested parties nor they were in possession of the suit property. Mr. Shrivastava further submitted that the petitioners are in actual possession of the suit premises and the issue of title of the petitioners and respondent no. 1 is still pending before this Court in Second Appeal No. 33 of 2006. Mr. Shrivastava further submitted that even from the cause title showing the address of the petitioners and respondent no. 1, it is clear that the respondent no. 1 is not resident of place of the suit property, which she has claimed to be in her possession and the learned trial court has also not considered the fact that Hussaini Bhai, was inducted as tenant in the suit premises by Khadim Khan and the said tenant, Hussaini Bhai, had handed over the possession of rented house to late Makdum Khan and since then the petitioners are in actual possession of the suit premises.