NOOR MOHAMMED Vs. GULAM RASOOL

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and decree of learned Distt. Judge, Merta dt. 2. 6. 90 in civil original suit no. 18/87.

(2.) THE brief facts that give rise to this appeal as alleged by the appellants are that with regard to mine no. 36 Chak Dangari in town Makarana measuring 230 x 70 ft. of which a 'patta' was granted to the plaintiff Noor Mohammed by erstwhile Jodhpur Stale on 12. 9. 1938, It was alleged that rest of the plaintiffs Nizamudin and Bilaludin had also ownership right over the said mine and were in possession through the 'patta' which was executed in the name of the plaintiff Noor Mohammed. It was also alleged that half of the portion of mine in the north side measuring 115 x 70 ft. fell in share of Gulam Mustafa s/o Chotu in partition marked as 'a B C D' in the map and the other portion marked as 'a B E F' in the map which was in their possession. It was also alleged that the plaintiff No. 1 Noor Mohammed took adjoining mine no, 36a situated in the west side of the mine no. 36 vide lease deed dt. 31. 3. 78 measuring 230 x 60 ft. on yearly basis. THE plaintiff Noor Mohammed agreed to sale 1/4 of the mine no. 36 measuring 57 x 70 ft. in favour of late Usman s/o Gulam Rasool Badar with consideration of Rs. 15,000/-on 15. 1. 66 and also executed a registered sale deed in his favour. When Usman came to know of the fact that he will not get any legal right over the mine sold by the plaintiff Noor Mohammed, he refused to pay the amount, so also to take 'patta' and the possession remained with the plaintiff. It was alleged that 'benama' dt. 15. 1. 66 was never acted upon and thereby either Usman or his legal representatives defendants could not get any right, title and interest so also they could not get possession, but as late Usman was a real nephew of Noor Mohammed, the alleged 'benama' remained with him and it was not cancelled as no dispute arose during the lifetime of Usman. A dispute arose on 23. 4. 77 after two and a half years of the death of Usman, when L. Rs. of Usman restrained the plaintiff from excavating mines no. 36 and 36a and tried to create breach of peace, thereupon the plaintiff Noor Mohammed and his son Mohammed Ali filed a complaint in the court of City Magistrate, Parbatsar u/s. 145 Cr. P. C. It was alleged that the Tehsildar attached both the mines and the City Magistrate without hearing the parties and without recording any evidence declared possession of the defendants on 23. 4. 77, against which a revision was filed. It was alleged that as the plaintiffs no. 2 and 3 were also in possession and the defendant in the garb of order of S. D. O. wanted to disturb them, the plaintiffs no. 2 and 3 also filed a complaint u/s. 145 Cr. P. C. in the court of City Magistrate Parbatsar on 24. 577 whereupon on the same day the southern part of mine measuring 115 x 70 ft. was attached and a receiver was appointed which is still pending. THE plaintiff Noor Mohd. , Nizamudin and Bilaludin filed this suit against Guiam Rasool, the defendant no. 1 and 2 to 12 L. Rs. of Usman, for declaration on 20. 7. 77 that mine no. 36 of 'morusi Bapi' belongs to the plaintiffs and it is in their possession and mine no. 36a is also in their possession as a lease has been executed in their favour and the defendants no. 1 to 12 have no right over them and they be restrained. It was also prayed that possession of the mines be delivered back to the plaintiffs.

(3.) MR. Jain, learned counsel for the respondent moved an application for early hearing on 30. 11. 91 and also raised some preliminary objection stating that the appeal deserves to be dismissed as abated. He has submitted that appeal is not filed against L. Rs. of deceased Usman though shown as defendants no. 1/7 to 1/17 in suit but only against L. Rs. of Gulam Rascol. He has also submitted that the respondent no. 1/4 Mst. Bibi Begum d/o Haji Gulam Rasool died on 24. 12. 89 leaving behind her husband, four sons and one daughter, defendant no. 1/9 Noor Hassan s/o late Usman died on 22. 6. 88 leaving behind his widow, three sons and five daughters and the plaintiff no. 2/6 Mst. Zamila d/o Nizamuddin whose name appared in the impugned judgment and decree dt. 2. 6. 90 but died on 20. 10. 90 as she left behind her husband, one son and four daughters and none of their legal representatives were brought on record and on this count also this appeal abated and the appeal is incompetent. It was next stated that the plaintiffs were fully aware of the death of Noor Hassan as the plaintiffs themselves moved an application for impleading his eight L. Rs. in another S. B. C. Misc. Appeal No 41/80 on 19. 9. 88. Thus, the appeal is abated.