MD. JALALUDDIN Vs. MD. MUSTAFA

JUDGEMENT

(1.) The petitioner, appellant in Title Appeal No. 25 of 2009, is aggrieved of rejection of his application filed under Sec. 75(b) and 75(c) read with Order 41, Rule 23 Civil Procedure Code for framing additional issue - "Whether any of the heirs of recorded tenant of Hassan Ali was an evacuee under section 2(D) of Administration of Evacuee Property Act, 1950?".

(2.) Title Suit No. 7 of 1997 was instituted by the petitioner for a decree for declaration that the suit property is the joint family property of the plaintiff and defendant no. 1 and for a decree for partition to the extent of half share for the plaintiff in the suit property. Subsequently amendment in the plaint was permitted and certain paragraphs were deleted/modified. Initially, in paragraph no. 5 of the plaint the plaintiff pleaded that the entire suit property was joint in occupation, however, instead of /rd share of Gulzar Ali entire suit property was put on auction and the defendant no. 1-Md. Mustafa purchased the same in his name. Through amendment the plaintiff has inserted that, "but in the sale certificate the evacuee property has been recorded in the name of Gulzar Ali".

(3.) In the suit, following issues were settled by the trial court: