MOHD. TARIQ KHAN & ORS. Vs. MEHMOONA BEGUM

JUDGEMENT

(1.) Both sides are now represented by the legal heirs. Those who initiated the litigation have since died. Pir Mohd. Khan and Sardar Ghulam Khan filed a suit. The case projected by them was their real brother Sardar Wazir Mohammad Khan, husband of Niaz begum defendant No. 1, died issueless. he left behind his widow Niaz Begum. He owned a residential house as also agricultural land in the province of Srinagar and also in Jammu. According to the plaintiffs, after the death of their brother S. Wazir Mohd.Khan, they were the only heirs and the widow, who was allowed to stay and was only permitted to enjoy the usufruct of the property. It was pleaded that she was to be treated as a licencee. It was pleaded that her continuance in possession was on account of the consent given by them. What led to the filing of the suit was that the widow of Wazir Mohd. Khan started alienating the property and this alienation was in any case, in excess of what would have gone to her. The suit was resisted. It was pleaded that the plaintiffs are estopped from filing the suit.It was stated that the plaintiffs had all along recognised the defendants to be the owners of the property. It was also pleaded that the defendant No. 1 had continued in possession and unless and until a relief of possession is claimed the suit would not be competent. The plea raised was that the plaintiffs were required to pay the court fee on Rs. 25 lacs, which was the value fixed for the purposes of jurisdiction. According to the defendants, this would be value for the purposes of court fee also.The further plea taken was that Sardar Wazir Mohd. Khan had another brother namely Mohd. Ashraf Khan and two sisters namely Khursheed Begum and Naseem Begum. Mohd. Ashraf Khan was said to be alive and so far as the sisters are concerned, they have also died leaving behind their legal heirs, defendant No. 2 stated that she was adopted by S. Wazir Mohd. Khan and his widow in the year 1947 when she was 15 days old and this fact is known to all. This defendant took a plea that S. Wazir Mohd.Khan by virtue of a gift deed which was duly registered and duly accepted and acknowledged had gifted away his entire property to his wife namely Niaz Begum. The possession was handed over on 5th kartik 1999 Bk, which corresponds to 1942 AD. It was in pursuance of this gift deed, a house located in Ustad Mohalla, Jammu was not the subject matter because it was inherited by Wazir Mohd.Khan alongwith the plaintiffs and other heirs. it was further pleaded that there was a partition decree. In the written statement filed by Niaz Begum, it was stated that she disposed of major part of the property by various sale deeds and also by gift deeds in favour of various vendees and doness. It was accordingly pleaded that on 2nd Dec '69, Niaz Begum had gifted property measuring 21 kanals 8 marlas located in khasra Nos. 552, 553, 557 min, 906/529 under Khewat No. 66 including a bungalow alongwith outer houses and Shamiat and Kahcharai lands to Memoona Begum, defendant No. 2. This deed was said to have been duly registered with the City Munsiff, Sub Registrar, Srinagar on 23rd Dec '69. The further plea taken was that at the time of death of Niaz Begum, she was not possessing any property gifted to her in 1942 by S. Wazir Mohd.Khan except 12 kanals of land under khasra No. 119 situated at Barzullar Bagat. It was in this manner pleaded by this defendant that she is in his possession of the said property. As many as 14 issues were framed. The ultimate decision went against the appellants. They have preferred this appeal.

(2.) As indicated above, 14 issues were framed. The issue No. 1 i.e. "whether the plaintiffs are estopped from filing present suit because they have conceded defendants as the owners of the suit property in some litigation was decided against the defendants as no evidence was led.

(3.) Issue Nos. 2 and 3 which were to the effect that as to whether the plaintiffs were supposed to file a suit for possession and that they were supposed to pay court fee on a sum of Rs. 25 lacs was decided in favour of defendants. It was held that the defendants were in possession. The plea that defendants were licencees was held to be a plea which was not sustainable. Niaz begum was found to be in possession of the property during her life time and the further findings which stand recorded are that plaintiffs never came in possession. It was accordingly concluded that a suit for possession was required to be filed and this required fixation of full court fee.