Madhya Pradesh High Court
Parvej Miyan vs Farida Begum on 27 November, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:30643
1 F.A. No. 144 of 2012
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
FIRST APPEAL No. 144 of 2012
PARVEJ MIYAN AND OTHERS
Versus
FARIDA BEGUM AND OTHERS
Appearance:
None for appellants.
Shri B.D.Jain, Advocate for respondent No.1
Reserved on : 13/11/2025
Pronounced on : 27/11/2025
JUDGMENT
This first appeal, under section 96 of CPC, has been filed against the order dated 3/5/2012 passed by XIV Additional District Judge, Gwalior in Civil Suit No. 29A/2009, by which the application filed by the defendant Nos.1 & 2/respondent Nos. 1 & 2, under order 7 rule 11 CPC, has been allowed and the plaint filed by the appellants has been rejected under Order 7 Rule 11, CPC.
2. Facts necessary for disposal of present appeal, in short, are that plaintiffs had filed the present suit for declaration of title and permanent injunction claiming that late Shri Kadar Shah was the Jagirdar of Gwalior Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-11-2025 11:16:44 NEUTRAL CITATION NO. 2025:MPHC-GWL:30643 2 F.A. No. 144 of 2012 State who died on 2/9/1935. The present suit has been filed by the legal representatives of Habib Shah S/o Kadar Shah through their general power of attorney holder Babar Shah. One civil suit No. 7A/1964 was filed by Smt. Malka Begum, daughter of late Kadar Shah against her brother Syed Mansoor Shah and brother Syed Habib Shah for partition. The trial Court, by judgment and decree dated 31/8/1970 passed in Civil Suit No. 7A/1964 decreed the suit and it was held that Smt. Malka Begum has 1/5th share in the property whereas her brothers Mansoor Shah and Syed Habib Shah have 2/5 th share each. Accordingly, it was decreed that partition be carried out. Against the said judgment and decree, Malika Begum widow of Mansoor Shah as well as Gaush Ahmad Shah son of Mansoor Shah preferred F.A. No. 25/1970. The High Court by judgment and decree dated 26/8/1981 passed in F.A. No. 25/1970 affirmed the judgment and decree passed by the trial court. Being aggrieved by the judgment and decree passed by the High Court, Gaush Ahmad Shah and others preferred SLP (Civil) No. 10906 of 1982 which too was dismissed and, accordingly, the judgment and decree dated 31/8/1970 passed by the trial court in Civil Suit No. 7A/1964 attained finality. Thereafter, Civil Suit No. 26A/1987 was filed and by a judgment and decree dated 9/11/1987, the share of Habib Shah to the extent of 2/5th was accepted. Against the said order, Civil Appeal No. 71/87 was filed by Smt. Malika Begum and Gaush Mohammad Shah. In paragraph 14 of the order dated 11/10/1988 passed in the said appeal, it was observed that a copy of affidaivt dated 6/2/2004 executed by plaintiffs Malika Begam, widow of Mansoor Shah and son Gaush Mohammad and an agreement dated 5/8/1988 was received by which Gaush Mohammad and his wife Fairda Begam accepted that Habib Shah has 2/5th share in the property in dispute. It was further pleaded that after preliminary decree was passed in Civil Suit No. 7A of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-11-2025 11:16:44 NEUTRAL CITATION NO. 2025:MPHC-GWL:30643 3 F.A. No. 144 of 2012 1964, the plaintiff namely Smt. Malika Begum daughter of Late Kadar Shah initiated the proceedings for passing of final decree. It was pleaded that on 5/7/1983 without any information to other defendants, one forged agreement dated 5/7/1983 was produced by plaintiff Malika Begam and defendant Nos. 1 and 2. It was rejected. Against the order dated 11/10/1988 passed by II Additional District Judge, Gwalior in Appeal No. 72/87, late Malika Begum widow of Mansoor Shah and Gaush Mohammad alias Khusro Miyan son of Mansoor Shah filed Writ Petition No. 1102/1980 which too was dismissed by order dated 9/5/1995 and the order dated 11/10/1988 passed by the appellate court was upheld. Similarly, Supreme Court by order dated 6/12/1982 also affirmed the judgment passed by the High Court and it was held that the father of the plaintiffs namely Habib Shah has 2/5th share and Mansoor Shah or his heirs have no right or share in the property of Habib Shah. Habib Shah expired on 13/2/2000 and during his lifetime, he was continuously receiving income from his property. After the death of Habib Shah, the son of Syed Mansoor Shah namely Gaush Mohammad Shah stopped giving the profit from 2/5th share of Habib Shah. When plaintiff was searching for documents, he found an affidavit that 1/5th share was given to Malika Begum daughter of late Kadar Shah and remaining property was given to the widow of Mansoor Shah and son Mohammad Khusro. No decision was given by the Court in respect of 2/5 share of plaintiffs' father and also in respect of other legal representatives of Mansoor Shah. Plaintiffs have also come to know that defendant No.8 had also filed a Civil Suit No. 26A/2003. In that civil suit, plaintiff had filed an application under Order 1 Rule 10, CPC and it was specifically mentioned that the father of plaintiff namely Habib Shah has 2/5th share which was accepted by defendant No.8 in his affidaivt dated 6/2/2004. Even Farida Begum, wife of Khusro Miyan and Gaush Ahmed Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-11-2025 11:16:44 NEUTRAL CITATION NO. 2025:MPHC-GWL:30643 4 F.A. No. 144 of 2012 Shah alias Khusro Miyan by their agreement dated 5/8/1998 had also admitted that the father of the plaintiff namely Habib Shah has 2/5th share. In Civil Suit No. 26A/03, defendant No.8 had produced a copy of judgment dated 6/1/1973 by which it was held that Habib Shah has failed to prove that the Dastbardari dated 23/2/1966 was obtained by undue influence and, accordingly, it was held that Habib Shah has already relinquished his 2/5th share in favor of Syed Mansoor Shah. Thereafter, plaintiff No.5 Badshah Miyan has also filed a suit for partition of share received by his father Habib Shah which has been registered as case No. 6A/2005. Accordingly, the suit was filed for declaration that the judgment and decree dated 6/1/1973 passed by I Additional District Judge, Gwalior in Civil Suit No. 3A/1971 is not binding on the plaintiffs and it was also prayed that it should be declared that plaintiffs are owners and in possession of 2/5 share of their father and they are entitled to get the property separated/partitioned. It was further pleaded that final decree dated 14/7/1983 passed by V Additional District Judge, Gwalior in Civil Suit No. 48A/1977 is also liable to be cancelled partially and it was also prayed that in case of any legal complication, the present suit be treated as an application under Order 21 Rule 101 of CPC.
3. Respondents filed an application under Order 7 Rule 11, CPC on the ground that the suit is barred by res judicata and by the impugned order, the suit has been dismissed.
4. It is not out of place to mention here that the judgment and decree dated 6/1/1973 passed by I Additional District Judge, Gwalior in Civil Suit No. 3A/1971 was also subject matter of challenge in FA No. 5/1976. The said appeal was also listed along with this appeal for analogous hearing. This court by a separate judgment passed in FA No.5/1976 has allowed the appeal Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-11-2025 11:16:44 NEUTRAL CITATION NO. 2025:MPHC-GWL:30643 5 F.A. No. 144 of 2012 and has set aside the judgment and decree dated 6/1/1973 passed by I ADJ, Gwalior in Civil Suit No. 3A/1971, and suit filed by Habib Shah has been decreed.
5. Thus, the relief sought by appellants in this case has already been received and it has been held that Habib Shah and now his legal representatives have 2/5th share in the property. Hence, this Court is of considered opinion that no useful purpose would be served by setting aside the impugned judgment and decree and remanding the case back for trial.
6. Accordingly, the appeal is hereby dismissed as infructuous.
(G.S.Ahluwalia) Judge (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-11-2025 11:16:44