MOHAMMAD KHALIL KHAN Vs. MAHBUB ALI MIAN

JUDGEMENT

(1.) This is a consolidated appeal resulting from the consolidation of two appeals, Appeal No. 5 of 1942 and Appeal No. 6 of 1942, from two decrees of the High Court of Judicature at Allahabad dated 28 October 1941, which affirmed two decrees, one of the Court of the Special Judge, first class, Shahjahanpur, and one of the Court of the Civil Judge, Shahjahanpur, both dated 14 January 1939.

(2.) Appeal No. 6 of 1942 arises out of a suit (Suit No. 2 of 1938) instituted by appellant 1 and one Fida Ali Khan, on whose death appellants 2 to 5 were brought in as his representatives for the recovery of certain property in the Shahjahanpur District. Respondents 1 to 4 hereinafter called the Mahbub brothers, and their respective wives 5 to 8, to whom they had purported to transfer parts of the said property, were the defendants in the said suit. The suit was dismissed by the Civil Judge, Shahjahanpur, and the dismissal was confirmed by the High Court on appeal.

(3.) Appeal No. 5 of 1942, arises out of an application dated 27 July 1936, by three of the respondents in the above appeal under S. 4, U. P. Encumbered Estates Act, 1934 (U. P. Act 25 of 1934). In their statement under S. 8 of the Act, they claimed as their own the property claimed by the appellants in Appeal No. 6. Appellant 1 and Fida Ali Khan filed objections under S. 11 of the Act claiming the property as their own. Whilst these proceedings under the Act were pending they filed Suit No. 2 of 1938 above referred to. As that suit was dismissed, the Special Judge held in the proceedings under the Encumbered Estates Act that they were not proprietors of the property claimed by them in the said proceedings. An appeal by the appellants to the High Court in these proceedings was dismissed on 28 October 1941, on the ground that their appeal against the decree in suit no. 2 of 1938 had been dismissed.