FAHMEEDA Vs. ZAREEFA

JUDGEMENT

(1.) THIS Civil Misc. IInd. Appeal is directed against the order of District Judge, Anantnag passed in Civil Appeal No. 3 of 1988 titled Mst. Zaereefa v. Fahmeeda and Anr.

(2.) THE dispute between the parties is on the landed property left by one Usman Parrey at Kilam Buchgam Tehsil Kulgam. Mst.Zareefa claims to be the adopted daughter (Dukhtar Parwarda) of said Usman Parray and has therefore filed a suit for declaration and mandatory injunction against the real daughter of Usman Parray namely Fahmeeda and her husband namely Bashir Ahmad Dar. Mst. Zareefa alleges that the parties are governed by custom and under the custom Usman Parray adopted her during her infancy and later executed a will deed in her favour on 28 -1 -1967. She further claims that Usman Parray made her as Khana Nasheen daughter and that till his death she performed her duties as his daughter. According to her the deceased had appointed Fahmeeda, his real daughter too as Khana Nasheen daughter and therefore both of them will inherit the landed property left by Usman Parray in equal shares. It is the case of Mst.Zareefa that Fahmeeda has forged a cancellation deed after the death of Usman Parray and that under the said document the defendants have, about one month prior to the institution of the suit refused to hand over the possession of the land to her as such she has got the cause of action to file the suit. She therefore filed a suit for declaration and mandatory injunction with the prayer that she be declared as the adopted daughter of Usman Parray as such entitled to half of the share in the landed property left by him. She has further prayed that cancellation deed executed by Usman Parray on 18.12.1983 was forged therefore be declared as null and void and that the possession of the land be handed over to her.

(3.) THE defendants resisted the suit on the main ground that though the parties were in the matters of inheritance governed by custom but there is no custom prevalent in the family of the parties or the area under which a daughter is taken in adoption and made a dukhtar parwardah. The defendants took other pleas too and on 22.7.1983 the court examined both Mst. Zareefa and Mst. Fahmeeda on the pleadings they had submitted before the Court. On 10th July 1997 the trial court framed as many as sixteen issues in the case out of which issue No. 12 related to limitation. The Court after hearing the parties on the issue dismissed the suit of the plaintiff on the ground that it was barred by limitation. The trial court held as under: -