GH RASOOL Vs. ALI BANGROO

JUDGEMENT

(1.) THIS revision petition has been preferred against the order passed by the learned Second Additional Munsiff, Srinagar on 19 -6 -2006.

(2.) BEFORE adverting to the controversy involved in the petition, it is worthwhile to mention some brief facts: - The parties to the suit have common ancestor namely, Qadir Hanji, who had two sons Aziz Hanji and Rehman Hanji and two daughters Mst Bibi and Mst Flari. Mst Bibi pre -deceased her father and after her death she was survived by daughter Mst Dadri and Son Lassi Math. Lassi Math died issue less and Mst Dadri had one son, namely, Azim Bangroo, who has three sons Ali Bangroo, Mohd. Yousuf and Ghulam Nabi. Lassi Math and Dadri survived Mst Bibi who had died during the life time of her father and therefore, in view of operation of law of shariat, Mst Dadri and Lassi Math who was unmarried lost the right of inheritance and the said right got extinguished by reason of death of Mst Bibi. At the time of his death Lassi Math was minor under the custody of father. There is no dispute to this proposition that he was not entitled to inherit the property of Grandfather Qadir Hanji. However, by virtue of an agreement signed and executed by the descendant of Qadir Hanji with the father of Lassi Math it was agreed that he will have life time interest in the estate of his grand father and after his death the land would revert back to the legal heirs of Qadir Hanji. In other words the Lassi Math had a limited right to enjoy the property during his life time and could not transfer by alienation the said property. Lassi Math however, during his life time executed two sale deeds in favour of his nephew Azim Bangroo. It is important to mention that the property which was given to Lassi Math by virtue of an agreement was in the shape of land measuring 2 Kanal 5 Marias comprising in Khewat No. 13, Survey No. 375 and land measuring 3 Kanals covered by Survey No. 79 -Min situate at Rampura Chattabal, Srinagar. This property, has been alienated by him. It is also admitted case of the parties that Lassi Math during his life time had challenged sale deed in Civil Court on the ground that the same was obtained on the basis of mis -representation and fraud. The matter was finally concluded in the High Court whereby the suit of Lassi Math was dismissed. During the pendency of the appeal, the plaintiffs in the suit tiled an application before High Court. It was again dismissed. However, the liberty was given to the plaintiff to file the suit in the proper Court to challenge the sale deeds executed by Lassi Math. It is under these circumstances that the Civil suit came to be filed before the Court below in the year, 1995 in which the following prayer was made: - a) A decree in the nature of declaration -be issued in favour of the plaintiffs and against the defendants declaring the document of sale deed executed by Lassi Math in favour of Azim Bangroo as null and void -and against the tenants of law of shariat; b) A decree in the nature of declaration lie issued in favour of the plaintiffs and against the defendants declaring the plaintiffs as the lawful persons to inherit the property of Mst. Bibi. c) A decree in the nature of ejectment be issued in favour of the plaintiffs and against the defendants for evicting the defendants from the suit property/ land which is fully described in the document annexed with the plaint and plaintiffs be put into the possession of the said land. d) A decree in the nature of perpetual injunction be issued in favour of the plaintiffs and against the defendants restraining the defendants from alienating the land or changing its nature or extinguishing its present position shown in the annexed document."

(3.) IT is important to mention that the present plaintiffs are the descendants of Aziz Hanji and Rehman Hanji, who were the heirs of Qadir Hanji and claimed this property on reversion as legal heirs. The suit clearly elaborates - a. That Lassi Math had a limited life time interest in the property of his grand father Qadir Hanji which he could not alienate during his life time; b. That despite stipulation in the agreement he has executed two sale deeds in favour of defendant which is illegal in as much as he had limited right of enjoyment over the property and could not transfer the same by virtue of the sale deed; c. That the execution of the sale deed by un -authorized person is illegal in the eyes of law and the plaintiffs are entitled to the possession of the property.