PHULCHAND Vs. MRSNATEE MIRZA

JUDGEMENT

(1.) This is an appeal by the principal defendant who is dissatisfied with the appellate decision of the learned Subordinate Judge of Patna dated 24 January 1941 by which he reversed the decision of the learned Munsif and decreed the suit of the plaintiff. The sole question for consideration in this case is whether the appellant had acquired any rights in the land in suit against the successful respondent.

(2.) The facts are these. The plaintiff is the widow of the late Mr. Hasan Imam, a well known Barrister-at-Law of Patna, who died in April 1933. Before his death he had made a waqf endowment of all his properties, the plaintiff being the sole mutwalli of the waqf estate for the term of her life. Upon his death disputes arose between his sons and daughters by the first wife on the one hand and with the plaintiff, who was his second wife, on the other hand. The disputes were referred to the arbitration of Sir Thomas Stewart Macpherson and Sir Khaja Mohamad Noor, who gave an award on 6 May 1936 by which the entire waqf estate was divided into two parts, the plaintiff was appointed a mutwalli for six annas share and defendant 2, a son of the late Mr. Hasan Imam, was appointed a mutwalli for the other ten annas share. According to this award a plot of land with an area of about 17 kathas 5 dhurs 25 sq. feet of holding No. 177-A, Circle No. 6 being a part of survey plot No. 158, sheet No. 8, ward No. 2 of the Municipal Survey records was allotted to her of which she obtained possession after partition. Such is her case.

(3.) The case of the plaintiff further is that during her absence at Hazaribagh, where she resides as the now wedded wife of Mr. Mirza, the defendant wrongfully entered and trespassed upon a portion of this holding and constructed a temporary shed with some bricks and a thatched roof upon it and on 30 May 1938, he refused to quit possession although he was asked to do so. Hence the plaintiff instituted the present suit on 10 June 1938 for ejecting the defendant.