SHRI ABDUL SALIM AND OTHERS Vs. SAYEED ALAM

JUDGEMENT

(1.) This S.B. Civil First Appeal under section 96 of the Code of Civil Procedure has been filed against the judgment and preliminary decree dated 06.04.2007 passed by the learned Additional District Judge (Fast Track), Chittorgarh in Civil Original Case No.26/2006 (3/2006).

(2.) Briefly stated that respondent-plaintiff filed a suit for partition of the property along with permanent injunction against the appellants-defendants before the trial court. The main contention of the respondent-plaintiff was that a house of which description is given in the para No.2 of the plaint belong to the ownership of late Shri Fateh Mohammed. The respondent-plaintiff, being the son of late Shri Fateh Mohammed, has a definite share in this house, with the other legal heirs, i.e. the appellants defendants. Seven shops and a room of this house was given on rent by late Shri Fateh Mohammed and are still in the possession of the tenants. It was averred in the plaint that the respondent plaintiff asked the appellants-defendants for partition of this property but the prayer had been rejected by them. It has also been stated that the appellants-defendants are bent upon to alienate the property, therefore, they may be restrained from doing so by a decree of permanent injunction along with a preliminary decree of partition.

(3.) A joint written statement was filed by the defendants Nos.2, 3, 4 and 7 in which it was stated that there is no concept of joint family or joint family property in Mohammedan Law. It was specifically pleaded that three rooms in this house at each story (ground, first and second) is personal and self acquired property of the defendant No.7 and, therefore, could not be taken for partition. It has also been stated that though the remaining part of the property belonged to the ownership of Late Shri Fateh Mohammed but this property had bequeathed by him in favour of the defendants Nos.1 to 4 by a registered Will dated 26.04.1994 and as such the respondent-plaintiff has no right, interest and share in this property. The defendant No.1 has conceded and adopted the written statement filed on behalf of the defendants Nos.2, 3, 4 and 7. No written statement was filed by the defendants Nos.5 and 6.