GHULAM AHMAD Vs. HABIBA

JUDGEMENT

(1.) The present Letters Patent Appeal arises against the judgment and decree passed by Hon'ble Mr. Justice S.M.F. Ali, (Chief Justice) on November 28, 1972, Reported in 1973 JandK LR 70) as he then was passed in Civil Second Appeal No.88 of 1971 confirming the judgment and decree passed by District Judge, Bhaderwah, on October, 19, 1971.

(2.) Although the facts of the case are not very much disputed before us even then in order to elucidate the matter in controversy, we feel it necessary to narrate the brief facts out of which the present Letters Patent Appeal arises. The facts in brief are that one Habib Sheikh son of Subhan Sheikh of Tehsil Kishtwar earlier filed a suit for declaration to the effect that plaintiff was entitled to half of the land mentioned in the plaint as co-owner with the defendant-respondent Ahmadoo Alias Gul Mohd. who claimed the land through the common ancestor Lassa, who purchased the land in dispute, which is admittedly an agricultural land. The suit for declaration was initially registered on August 28, 1955, which was later on compromised on September 19, 1957 and a compromise decree was drawn up giving th share of the land in dispute to the plaintiff. Subsequently the defendant/ respondent in the present appeal brought a suit for cancellation of the compromise decree on the basis of fraud and non-compliance of the provisions of O.32, Civil P. C. This suit was dismissed by the trial Court on 13-6-1960. but on appeal by the defendant it was decreed by the District Judge on June 28, 1963. Thereafter a further appeal was taken to the High Court, which upheld the decree passed by the District Judge. The decree passed by the District Judge was upheld by High court and consequentially the compromise decree stood set aside and the parties were relegated to the position they occupied at the time the compromise decree was passed and the previous suit brought by the present plaintiffs for declaration stood revived. During the pendency of the subsequent suit, the plaintiff applied for permission to amend the plaint to include prayer for possession of part of the suit land, which was granted by the order of the Court on July 4, 1968. Thus the amended plaint included the prayer including that of declaration of title about possession also. Thereafter, the trial Court decreed the suit of the plaintiff holding that plaintiff is entitled to half of the suit land and, therefore, entitled to a decree accordingly. On appeal to the learned District Judge, the District Judge, Bhadarwah, upheld the decree passed by the learned trial Court and upheld the finding, that the said property was the joint acquisition of the brother and the respondent was entitled to half of the share. Consequentially the appeal was dismissed.

(3.) Against the decree confirmed by the learned District Judge as stated above, the present appellant Ghulam Ahmad alias Gul Mohd. and another filed the Civil Second Appeal before the learned single Judge, which came up for hearing and on hearing the respective counsel for the parties, the learned single Judge Hon'ble the Chief Justice, as he then was, upheld the finding of fact arrived at by the two courts below in a detailed judgment discussing the law on the point and the controversy raised on fact before his Lordship and consequentially dismissed the Civil Second Appeal on November 28, 1972. Thereafter, by the order passed on December 22, 1972, his Lordship granted leave to appeal under the Letters Patent Appeal and thus the present Letters Patent Appeal.