Bombay High Court
Abeda Bano Shaikh Jalaluddin & Ors vs Jamshid Amir Ali Khan & Ors on 13 October, 2017
Author: R.D.Dhanuka
Bench: R.D.Dhanuka
First Appeal 269 of 2006
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 269 OF 2006
1] Abeda Bano W/o Sk. Jalaluddin,
(Since Died, through L.R.)
1-A] Shahjadi Begum w/o.Shaikh Nabilal
Age: 65 years, Occu.: Household,
R/o.201, Forest Colony, Daund,
Dist.Pune.
2] Smt. Tasneem Bano W/o Syed Abdul Hasan,
Age : 55 years, Occupation: Household,
R/o. Ambajogai, Dist. Beed. (Deleted)
3] Smt. Latifunnisa Begum W/o Sk. Shafiuddin,
Age : 65 years, Occ. Household,
R/o. Railway Colony, Kurduwadi,
Dist. Sholapur.
4] Hanifunnisa Begum W/o Karimullah Khan,
(Since Died through L.Rs.]
4-3] Anjum Jahanara W/o Fahimuddin
Age : 43 years, Occ. Household,
R/o. Kurduwadi, Tq. Madha
Dist. Sholapur.
5] Smt. Ashrafunnisa Begum
W/o Shafiq Ahmed Siddiqui,
Age : 54 years, Occu.Household,
R/o : Near Jalashahi Masjid,
Ausa, Dist. Latur.
6] Arefunnisa Begum w/o Khalique
Ahmed Siddiqui,
Age : 53 years, Occu. Household,
R/o : Barshi Road, Prakash Nagar,
Latur.
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All Appellants through General
Power of Attorney Holder, M.A.
Muqsith Khan s/o Mohd. Mehboob
Khan, Age : 65 years, Occu. Retired
Govt. Servant, R/o : Bhadkal Gate,
Aurangabad. ...APPELLANTS
(Orig. Plaintiffs)
VERSUS
1] Jamshid Amir Ali Khan s/o Hamid
Ali Khan, Age : 32 years, Occ.Agri.
R/o. In front of S.P. Office,
Ambajogai Road, Latur.
1) Abeda Bano W/o Jalaluddin Died. L.R.
1-B) Shaikh Zahuroddin S/o Jalaluddin Age : 71 Yrs
1-C) Shaikh Moinuddin S/o Jalaluddin Age : 63 Yrs
Both Occ.Pensioner, House No.201,
Near Forest Colony, Daund Dist.Pune.
2] Taufique Aslam Khan s/o Hamid
Ali Khan, Age : 48 years, Occu.
Agri. R/o : Near Abbas complex,
Ambajogai Road, Latur.
3] Zaki Khan s/o Hamid Ali Khan,
Age : 39 years, Occu.Business,
R/o : Near Abbas Complex,
Ambajogai Road, Latur.
4] Saquib Abbas Khan s/o Hamid
Ali Khan, Age : 36 years, Occu.
Doctor, R/o : Ambajogai Road,
Latur.
5] Smt. Maimoona Bano w/o Hamid
Ali Khan, Age : 80 years, Occu.
Household, R/o : Ambajogai Road,
Latur
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6] Smt. Qamar Bano W/o Abdul
Basmit Khan, Age : 65 years,
Occu. Household, R/o Ghalib
Nagar, Idgah Road, Parbhani.
7] Smt. Qaisar Bano w/o Abdul
Muqsith Khan, Age : 57 years,
Occu. Household, R/o Sane
Hospital, Bhadkal Gate,
Aurangabad.
8] Smt. Akhtar Bano w/o Muntajbuddin
Shaikh, Age : 55 years, occu. Household,
R/o : High School, Bhadkal Gate,
Aurangabad.
9] Smt. Afsar Bano w/o Iftekhar Ahmed,
Age : 53 years, Occu. Household,
R/o . C/o Patel Rauf, In front of
Chause Building, Altamash Colony,
Aurangabad. (Deleted)
10] Smt. Akbar Bano w/o Mahmood Ali
Khan, Age : 51 years, Occu. Household,
R/o. Near S.P. Office, Ambajogai Road,
Latur.
11] Afroz Bano w/o Abdul Hamid Patel,
Age : 49 years, Occu. Household,
R/o . H.No. 1-112, Patel Cottage,
Station Bazar, Gulbarga (Karnataka).
(Deleted)
12] Tabassum Bano w/o M.A. Mansoor,
Age 33 years, Occu. Household,
R/o : 22/4, M.S.E.B. Colony,
Vasai Road, Mumbai. (Deleted)
13] Mir Raza Ali S/o Mir Shahad Ali,
Age 49 years, Occu. Auto Mechanic,
R/o : Near General Post Office,
Latur.
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14] Riyaz Ahmed s/o Abdul Hasan,
Age : 29 years, Occu. Service,
R/o . Gandhi Nagar, Ambajogai,
Tq. Ambajogai, Dist. Beed
15] Zaki Ahmed s/o Abdul Hasan,
Age : 29 years, Occu. Nil,
R/o ;Gandhi Nagar, Ambajogai,
Tq. Ambajogai, Dist. Beed.
16] Syed Dayam Hussain s/o
Syed Hussain Saheb Dayami,
Age : 50 years
17] Manohar s/o Bhaurao Wadikar,
Age : 60 years.
18] Mehboobbi w/o Abdul Karim
Saheb, Age : 65 years.
19] Syed Ghaus s/o Syed Younus
Dayami, Age : 55 years.
20] Saliya Begum w/o Syed Ghaus
Saheb, Age : 45 years.
21] Shabbir Miya s/o Mehtab Saheb,
Age : 45 years.
22] Mohd. Hamed Peer Pasha s/o
Mohd. Osman Saheb Junaidi,
Age: 40 years.
23] Pasha Miya s/o Hussain Saheb,
Age : 48 years.
24] Shakuntala Bai w/o Siddeshwarrao
Birajdar, Age : 50 years.
25-1] Prabhakar s/o Vithalrao Kshirsagar,
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Age : 40 years.
25-2] Errappa s/o Govindrao Lode,
Age : 45 years
26] Budha Vihar Mandal Narsingrao
Bodke, Age : 65 years.
27] Ashraf Khan s/o Hayat Khan,
Age : 40 years.
28] Chairman Venkatrao Apparao
Patil, Age : 60 years.
29] Mastanbi w/o Mohd. Yasin
Saheb, Age : 60 years.
30] Mastanbi w/o Mohd. Yasin
Saheb, Age : 60 years.
31] Kasturibai w/o Ramdas
Thakur, Age : 50 years
32] Tukaram s/o Kashinathrao
Kale, Age : 55 years
33] Abdul Sattar s/o Baban
Saheb, Age : 45 years.
34] Kasturbai w/o Ramdas
Thakur, Age : 50 years.
35] Khaleedabi w/o Hasan Khan
Pathan, Age : 60 years.
36] Abdullah s/o Mohiuddin,
Age : 40 years.
37] Dr. Dilip s/o Govindrao
Deshpande, Age : 55 years
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38] Anisa Begum w/o Abdul
Waheed Deshmukh,
Age : 40 years.
39] Noor Jahan Begum w/o
Mohd. Rafiq Saheb,
Age : 35 years
40] Hajrabi w/o Sk. Rahim
Saheb, Age : 38 years
41] Syed Pasha Syed Mohd. Dafedar,
Age : 45 years,
42-1] Dawood Khan s/o Vazir Khan,
Age : 35 years.
2] Roshan Khan s/o Vazir Khan,
Age : 32 years.
43] Rahmatbi Dastagir Pathan,
Age : 40 years.
44] Jahanara Begum w/o Syed
Majed Hussain, Age : 32 years.
45] Syed Yasin Saheb s/o Syed
Pasha, Sahab Dayami,
Age : 50 years
46] Safia Begum w/o Shaikh Ismail
Saheb, Age : 32 years.
47] Nuzhat Sultana w/o Nisar
Ahmed Chaus, Age : 35 yrs.
48] Raeesa Begum w/o Mohd. Azam
Sahab, Age : 38 yrs.
49] Devidas s/o Bapurao Somwanshi,
Age : 50 years
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50] Kantabai w/o Nivrati Kamble,
Age 35 years.
51] Shaikh Hameed Multan Pasha,
Age : 42 years.
52] Shaikh Nulfam Multan Pasha
Saheb, Age : 60 years.
53] Narsingh Gundappa Landge,
Age : 55 years.
54] Sudheer Manikrao Waghmare,
Age : 52 years
55] Nitin Murlidharrao Shasturkar,
Age : 45 years
56] Kishan Babwantrao Kulkarni,
Age : 35 years.
57] Lalitabai Udhavrao Jadhav,
Age : 35 years.
58] Sk. Mehboob Sk. Bashusahab,
Age : 45 years.
59] Vasant s/o Mukundrao Kasle,
Age : 42 years.
60] Usha w/o Tukaram Kulkarni,
Age : 30 years.
61] Neela w/o Dattatraya Kulkarni,
Age : 30 years.
62] Sunita Sunil Jirge,
Age : 25 years.
63] Sunil Ramrao Jire,
Age : 45 years
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64] Jagdish Neelkanthrao Kulkarni,
Age : 56 years.
65] Bhaulal Hanumanth Share,
Age : 43 years.
66] Shakuntala w/o Bhaurao Joshi,
Age : 48 years.
67] Meera w/o Vinod Hibare,
Age : 45 years.
68] Sunil Ramrao Jire,
Age : 45 years.
69] Kiran W/o Gopalrao Phadke,
Age : 40 years.
70] Gurukrupa Housing Society
71] Dhondopanth Babarao Kulkarni,
Age : 50 years.
72] Maruti Budrake,
Age : 55 years,
73] Fateh Modh. Ismail,
Age 54 years,
74] Mohd. Ismail Mohd. Hussain,
Age 51 years,
75] Vaijnath Devilal,
Age : 55 years,
76] Dattukishan Ghadge,
Age : 45 years.
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77] Syed Wali Mohd. Chandsaheb,
Age : 38 years,
78] Abdul Razzak Modhi Sahab,
Age : 60 years,
79] Manik Namdeo Wangaskar,
Age : 45 years.
80] Shaikh Abdul Sattar,
Age : 38 years.
81] Sheshrao Shamrao Adhav,
Age : 48 years.
82] Shaikh Mehboob Sk. Lal,
Age : 50 years.
83] Baburao Krushna Shinde,
Age : 57 years.
84] Sayaji Narayan Vasudev,
Age : 50 years.
85] Rambhau Shankar Chaugle,
Age : 45 years
86] Ramesh Shakarrao Kulkarni,
Age : 38 years.
87] Babumanik Vasudev,
Age : 40 years.
88] Kashibai Nurutti Dhangar,
Age : 54 years.
89] Santabai Rawan Vasudev,
Age : 45 years.
90] Mahadev Sitappa Bhade,
Age : 50 years.
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91] Rangnath Laxman Kadam,
Age : 52 years.
92] Shankarrao Vithalrao,
Kulkarni, Age : 48 years
93] Balayya Swami,
Age : 47 years.
94] Sushilabai Baliram Lokre,
Age : 39 years.
95] Kishan Babu Berde,
Age : 60 years.
96] Shankar Babu Bhandare,
Age : 47 years.
97] Sudrabai Narayan Thakur
Age : 45 years,
98-1] Gorakdajiba Ghade
Age : 45 years,
2] Sadashiv Limbaji Dhamal,
Age : 48 years,
99] Sambhaji Ganpat Madne,
Age : 45 years,
100] Baburao Gundeba Gondhale,
Age : 50 years.
101] Saharabi Sk. Ghodusahab,
Age : 60 years,
102-1] Hanuman Dattusingh,
Age : 30 years.
2] Subhash Dattusingh,
Age : 28 years
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103] Manohar Dattatraya Deshpande,
Age : 45 years
104] Sarubai Tulshiram Gondle,
Age : 55 years
105] Mohd. Yaqub Sahab,
Age : 60 years
106] Srimati S. Paulma Sinhapalli,
Age : 50 years
107] Aminabi Mehboob Saheb,
Age : 65 years
108] Shakuntalabai Sukhdeo Khandelwal,
Age : 56 years
109] Ranba Govinda Solkar,
Age : 45 years
110] Rukmaji Shamrao Durve,
Age : 48 years.
111] Ambubai Tukaram Hadve,
Age : 50 years
112] Malanbegum Sk. Mehboobsaheb,
Age : 60 years.
113] Ashabai Ismail Saheb,
Age : 62 years,
114] Prabhakar Vithalrao Kshirsagar,
Age : 35 years
115] Shrimant Tukaram Birajdar,
Age : 48 years.
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116] Rafat Sultana Begum W/o Sk. Abdul
Wahab Sahab, Age : 48 years
117] Prashsak, Nagar Palika
118] Haji Khan Goye Khan,
Age : 60 years
119] Vidyadhar Shridhar Rao,
Age : 46 years
120] Dilip Narayan Patel,
Age : 49 years.
121] Shamim Begum Abdul Lateef,
Age : 38 years.
122] Sk. Nazir Ismail,
Age : 40 years.
123] Sharad Shankarrao Halkude,
Age : 48 years.
124] Aminabi Abdul Khadar,
Age : 57 years.
125] Atiquinnisa Begum D/o. Habibuddin,
Age : 22 years.
126] Haji Abdul Karimuddin s/o Burhanuddin,
Age : 60 years.
127] Hasham Ali S/o Ahmed Ali,
Age : 55 years.
128] Rehanbi W/o Harun Basle,
Age : 39 years.
129] Syed Mehboob Ali Ashraf Ali,
Age : 38 years
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130] Mohd. Mustafa Osman Landge,
Age : 40 years
131] Sarabegum W/o. Osman Sahab,
Age : 37 years.
132-1] Janardhan Govind Sathe,
Age : 45 years.
2] Vilas s/o Govind Sathe,
Age : 40 years
133] Saifan Maqdoom Sahab Damre,
Age : 56 years.
134] Kazi Sultana Begum w/o
Minhajuddin, Age : 34 years
135] Kazi Sultana Begum w/o
Minhajuddin, Age : 34 years
136] Mustafa Osman Landge,
Age : 55 years.
137] Shaikh Abdul Sattar Rasool
Sahab, Age : 50 years.
138] Mehboob Qasim Sahab Hannure,
Age : 50 years.
139] Abdul Sattar Gulam Dastgir
Sahab, Age : 55 years.
140] Syed Ahmed Ali,
Age : 47 years
141] Kazi Sultana Begum W/o.
Minhajuddin, Age : 38 years
142] Madarsa Arbin Madinat-ul-Uloom.
143] Madarsa Abbia Madinatul Uloom
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Khori Galli, Latur.
144] Modh. Iftequar Ahmed Abdul Gaffar
Patel, Age : 45 years
145] Modh. Bin Galib Chaus,
Age : 50 years
146] Syd. Quddus Razak Miya,
Age : 45 years
147] Syed Jafar Ali Subhan Ali,
Age : 50 years
148] Safiya Begum w/o Abdul Samad,
Kazi, Age : 40 years
149] Mohd. Isaq Mehboob Saheb,
Age : 48 years,
150] Mohd. Mazharudding Mohd.
Moinuddin, Age : 45 years.
151] Mohd. Chause S/o Syed Galib
Chaus, Age : 50 years
152] Rasheeda Begum w/o Mushaik
Naeemuddin, Age : 38 years
153] Syed Jafar Ali Subhan Ali,
Age : 48 years.
154] Mahajabin Abdullah Munshi,
Age : 45 years
155] Kishwar Sultana Nooruddin,
Age : 35 years
156] Aaliya Mehraj Ahmed Sayed,
Age : 37 years
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157] Irshad Ali Subhan Ali,
Age : 34 years
158] Sultana Begum Nabiyar Khan,
Pathan, Age : 32 years
159] Mehmooda Nasreen w/o
Syed Yousuf Quadri,
Age : 42 years
160] Prashashak Nagar Palika,
Latur.
161] Rashidmiya Hussain Sab,
Age : 50 years
162] Khatoonbegum Syed Mehboob
Ali, Age : 42 years,
163] Kashinath Kishan Waghmare,
Age : 60 years
164] Sultanabegum Vazir Sab,
Age : 37 years
165] Imtiyazbe Qurban Ali,
Age : 50 years.
166] Noorjahan Abdul Sami,
Age : 38 years.
167] Noorunnisa Begum Sk.
Ibrahim, Age : 35 years.
168] Mohd. Khutbuddin Khajasaheb,
Age : 50 years.
169] Bismillah Sk. Jilani,
Age : 39 years.
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170] Nabiyar Khan Mehboob Khan,
Age : 58 years.
171] Vimalbai Ramesh Madrewar,
Age : 36 years.
172] Sherkhan Abdul Wahed Khan,
Age : 54 years.
173] Vimal Ramesh Madrewar,
Age : 36 years.
174] Nabiyar Khan Mehboob Khan,
Age : 58 years.
175] Bismillah w/o Mastan Khan,
Pathan, Age : 60 yrs.
176] Mehboob s/o Bakshu Sahab,
Karbade, Age : 55 yrs.
177] Meerabai w/o Nagnath Jadhav,
Age : 56 years.
178] Shaikh Gulab s/o Aauliya Saheb,
Age : 50 years.
179] Habib Sahab Habib Hussain Chouse,
Age : 60 years.
180] Azeemuddin s/o Allemuddin,
Age : 38 years.
181] Hasnabi w/o Shaikh Ahmed Sahab,
Age : 48 years.
182] Mohd. Bin Galib Chaus,
Age : 50 years.
183] Mohd. Khaja s/o Abdul Rehman,
Shaikh, Age : 45 years.
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184] Shakeela Begum w/o Maqsood
Ahmed Ansari, Age : 38 years.
185] Khaleedabi w/o Mohd. Jilani
Chause, Age : 55 years.
186] Shaikh Jafar Shaikh Shabbir,
Age : 36 years.
187] Shaikh Yakub Sahab Nadeem
Sahab, Age : 48 years.
188] Khalidabe w/o Modh. Jilani
Chause, Age : 55 years.
189] Shaikh Jabbar s/o Abdul Sahab,
Age : 50 years.
190] Khalidabi w/o Mohd. Jilani,
Age : 65 years.
191] Sajid Khan Jabbar Khan,
Age : 46 years.
192] Majed Khan Jabbar Khan,
Age : 40 years.
193] Syed Khaja Syed Haidar
Quadri, Age : 45 years.
194] Nazeer Abdul Gaffar Patel,
Age : 45 years.
195] Sk. Habib Basheer Sahab,
Age : 48 years.
196] Shaikh Farukh Shaikh Osman
Sahab, Age : 37 years.
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197] Mohd. Abdul Majed Sk.
Karimuddin Ausvee,
Age : 46 years.
198] Masab Ali S/o Gaffar Ali,
Age: 32 years.
199] Haji Gulam Samdani Mohd.Gulam Gaus,
Age : 50 years.
200] Kariman Begum Haji Shaikh,
Age : 58 years.
201] Nasima Begum W/o Mir Malikzafar Hasmi,
Age : 50 years.
202] Sk. Rasool Sk. Aamll Saheb,
Age : 60 years.
203] Azhar Mohammad Gazi S/o Sk. Mohd.
Ausvee, Age : 40 years.
204] Daulatbi Sk. Mehboob Sahab,
Age : 60 years.
205] Sk. Mehoob S/o Sk. Khaja Saheb,
Age : 58 years.
206] Syeda Begum W/o Shakeel Hamid Sahab,
Age : 59 years.
207] Bismillah bee W/o Abdul Rashid Sahab,
Age : 60 years.
208] Hafiz Sk. Abdul Jabbar Sk. Abdul Karim Sahab,
Age : 65 years.
209] Taleb Bin Aslam Saheb,
Age : 50 years.
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210] Shakera bee Abdul Majeed,
Age : 38 years.
211] Qamarbi W/o Ibrahim Sahab,
Age : 55 years.
212] Sailesh S/o Shivaraj Patil,
Age : 36 years.
213] Abdul Majid Abdul Kari,
Age : 39 years.
214] Shahjahan Begum W/o Sk. Zaheer Ahmed Sahab,
Age : 45 years.
215] Prashashak, Nagarpalika,
Latur.
216] Syed Maqsood Syed Chand Sab,
Age : 50 years.
217] Prayagbai Nagnathrao Agle,
Age : 38 years.
218] Ambaji Maruti Gaikwad,
Age : 56 years.
219] Hasinabi Shaikh Ahmed Sab,
Age : 50 years.
220] Ambaji Maruti Gaikwad,
Age : 56 years.
221] Shivaji Eknath Shirsagar,
Age : 45 years.
222] Abdul Razzak Haji Bakshu,
Age : 30 years.
223] Saida Sabha Begum Syed Lalsahab,
Age : 36 years.
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224] Khatunbi W/o Sk. Mehooob Sahab,
Age : 50 years.
225] Vithal S/o Fakira Kamble,
Age : 45 years.
226] Mohd. Ismail S/o Abbas Karim Sahab,
Age : 43 years.
227] Ramesh S/o Trimbak Madrewar,
Age : 34 years.
228] Meenabai W/o Balasaheb Tarte,
Age : 40 years.
229] Dr. Nazeer Ahmed Saheblal Inamdar,
Age : 35 years.
230] Kasturbai Chandrakant Swami,
Age : 45 years.
231] Prashashak, Nagar Palika,
Latur
232] Mehrunnisa Begum Abdul Karim,
Age : 38 years.
233] Wasimunnisa Begum Abdul Hamid,
Age : 40 years.
234] Akhtar S/o Lal Saheb,
Age : 50 years.
235] Khairunnisa Begum Zahid Hussain,
Age : 49 years.
236] Khatunbi Shaikh Mehboob Sahab,
Age : 60 years.
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237] Dilip Narayan Patil,
Age : 35 years.
238] 1] Vidyadhar
2] Shrisagar Raosaheb More,
Age : 28 and 26 years.
239] Khatunbegum Syed Mehoob Ali,
Age : 55 years.
240] Sk. Yakub Sk. Baban Sab,
Age : 48 years.
241] Prayagbai Nagnath Aagle,
Age : 45 years.
242] Mahboob bee Yakub Sahab,
Age : 55 years.
243] Mahboob Yakub Sahab,
Age : 55 years.
244] Kulsumbi Yaakub Sahab,
Age : 50 years .
245] Prayagbai Jagannath Hotkar,
Age : 45 years.
246] Gyandev Yashwant Jogdand,
Age : 60 years.
247] Mohd. Hussain Mohd. Latif ,
Age : 50 years.
248] Subashchandra Shirsagar Pawar,
Age : 60 years.
249] Halimabe Khudubuddin Sahab,
Age : 45 years.
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250] Shaikh Maqbool Sk. Kadar,
Age : 40 years.
251] Syed Abdul Karim Syed Abbas Ali,
Age : 35 years.
252] Chotibegum Ismailsahab,
Age : 50 years.
253] Babysaharabi Abdul Karim Sab,
Age : 45 years.
254] Abdul Sattar Dastageer,
Age : 32 years.
255] Ismail Khan Akbar Khan,
Age : 36 years.
256] Vazir Papamiya,
Age : 30 years.
257] Nasen Bin Galib,
Age : 28 years.
258] Baburao Arjun Kamble,
Age : 45 years.
259] Mohd. Bin Galib,
Age : 34 years.
260] Abdul Karim Allauddin,
Age : 38 years.
261] Salauddin Abdul Karim,
Age : 30 years.
262] Chandbi Mehboob Sahab,
Age : 40 years.
263] Mohd. Shafiuddin Nizamuddin,
Age : 38 years.
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264] Mod. Khaja Mohd. Shrvar,
Age : 38 years.
265] Sk. Abdul Waheed Abubakar,
Age : 31 years.
266] Khaja Abdul Wahab Khaja,
Age : 32 years.
267] Baburao Arjun Kamble,
Age : 48 years
268] Baban S/o Mahadeo Hatkar,
Age : 48 years.
269] Bismillah Bee W/o Shamsuddin Mulla,
Age : 60 years,
R/o. Tq. Shirur Anantpal,
Dist. Latur.
Respondent Nos.16 to 268 all
Occu.: Agriculture, All R/o.
Khori Galli, Latur, Dist.Latur.
270-a] Noorullah Khan S/o Karimullah Khan,
Age : 45 years, Occupation Fabrication,
R/o.Single Camp, Latur, Dist. Latur.
271-b] Sadeq S/o Karimullah Khan,
Age : 34 years, Occ. Fabrication,
R/o. Signal Camp, Latur,
Dist. Latur.
[Appellant No.4 Hanifunnisa Begum w/o.
Karimullah Khan - since died -
Respondent Nos.270 (a) & 271(b) are L.Rs.
Of Appellant No.4]
RESPONDENTS
( No. 270 & 271- Ori. Plaintiffs)
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First Appeal 269 of 2006
24
...
Mr.N.V.Gaware h/f Mr.G.K.Sontakke Advocate for
Appellants.
Mr. R.S.Shaikh, Advocate for Respondent No.1.
Mr.P.M. Shah, Senior Advocate, for Respondent No.2
Mr. P.R. Patil, Advocate, for Respondent No.3
Mr.R.N. Dhorde, Senior Advocate, for Respondent No.4
Mr. V.B. Jadhav h/f Mr.V.D. Hon, Advocate for
Respondent No.5
Mr. S.G.Rudrawar, Advocate for Respondent No.6
Appellant Nos.1-A, is added as per Court's Order dated
8.10.2007 in Civil Application No.467 of 2007.
Respondent Nos. 1-B, 1-C are added as per Court's Order
dated 8.10.2007 in Civil Application No.467 of 2007.
Appellant No.2 is deleted as per Court's Order dated
19.11.2014 in Civil Application No.3408 of 2012.
Respondent Nos.9, 11 & 12 are deleted as per Court's
Order dated 29.8.2005.
Heirs of Respondent Nos.14 & 15 of deceased Appellant
No.2 are taken on record as per Court's Order dated
19.11.2014 in Civil Application No.3408 of 2012.
Respondent Nos.16 to 271 are deleted as per Court's
Order dated 11.2.2005.
...
CORAM : R.D.DHANUKA AND
SUNIL K. KOTWAL JJ.
Reserved on : 8th September, 2017
Pronounced on : 13th October, 2017
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First Appeal 269 of 2006
25
JUDGMENT ( PER R.D.DHANUKA J.)
1] By this First Appeal, the appellants (original plaintiffs) have challenged the impugned order passed by the learned Civil Judge, Senior Division, Latur, dated 10th December, 2003 below Exhibit No.1 and also challenged the composite order passed below Exhibit Nos. 260 and 268, in Special Civil Suit No. 219 of 1996 dated 10.12.2003 by the learned Civil Judge, Senior Division, Latur.
2] By the said order dated 10th December, 2003, the learned Civil Judge, Senior Division, Latur, had allowed the application filed by some of the defendants below Exhibit No.1 dismissing the entire suit as abated in view of the plaintiffs' failure to bring on record the legal representative of the alienees and in view of the fact that the suit had also abated against some of the alienees. The learned Trial Judge also dismissed the application filed by the plaintiffs for deletion of the name of the alienees i.e. defendant No.16 to defendant No. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 26 271(B).
Some of the relevant facts for deciding this appeal and the civil applications are as under :-
3] The parties described in this appeal are described as per their status in the trial Court proceeding. 4] Mr. Hamid Ali Khan had two wives Qamarbano ( 1 st wife) and Zeban Bano ( 2nd wife). The said first wife Qamarbano had a son by name Mahaboob Ali Khan. The second wife of the said Hamid Ali Khan i.e. Zeban Bano had a son namely Osman Ali Khan. The said Mahboob Ali Khan and Osman Ali Khan died leaving behind him his widow Umrao Bano and second wife Sharfan Bano.
The son of the said Mahboob Ali Khan died during the life time of Umrao Bano. The second wife of Mahboob Ali Khan also died leaving behind 2nd daughter namely Noor Bano and Abed Bano (plaintiff No.1) and son Hamid Ali Khan. The Noor Bano died leaving behind the plaintiff Nos.3,4,5,,6,13 and a son by name Abdul Hasan. The said son Abdul Hasan died leaving behind the plaintiff No.2 and defendants Nos.14 and 15.
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First Appeal 269 of 2006 27 5] On the other hand, Hamid Ali Khan, who was son of Sharfan Bano, died leaving behind defendant Nos. 1 to 12. The plaintiff No.1 was the real sister of Hamid Ali Khan and other plaintiffs are the daughters of deceased Noor Bano, who is also real sister of Hamid Ali Khan. The defendant Nos.1 to 12 are the sons and married daughters of Hamid Ali Khan and defendant Nos. 13,14 and 15 are grandsons of deceased Noor Bano. 6] It is the case of the plaintiffs that the suit agricultural lands shown in Schedule ''A'' in all admeasuring 135 Acres and 8 Gunthas was given by Hamid Ali Khan to his first wife in view of her right for Mehar whereas the other properties were given to Zeban Bano - the second wife.
7] Various proceedings came to be filed between Osman Ali Khan S/o Amir Ali Khan as plaintiff and Hamid Ali Khan as defendant, such as Regular Civil Suit No.315 of 1344. There were other proceedings also amongst family members of the defendants Nos.1 to 14. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 :::
First Appeal 269 of 2006 28 It is the case of the plaintiffs that suit agricultural lands were owned and possessed by the first wife Qamar Bano. After death of Qamar Bano, her son Mehboob Ali Khan became the sole owner and possessor of the lands. On the death of Mehboob Ali Khan, the properties i.e. the agricultural lands stood devolved upon his two widows Umrao Bano & Shragan Bano, Umrao Bano was the senior widow. It is the case of the plaintiffs that the entire management of the properties was jointly inherited, owned and was being looked after by Hamid Ali Khan for himself and also on behalf of his two sisters. Hamid Ali Khan held half share and his two sisters each held 1/4th share.
8] The State of Maharashtra acquired some portions from and out of lands Survey Nos.211 and 212 and also Survey Nos.208 and 209. Hamid Ali Khan claimed the amount of Rs.2,01,50,580-00 in respect of the said acquired lands before the Land Acquisition Officer. The Land Acquisition Officer determined the various amount. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 :::
First Appeal 269 of 2006 29 9] It is the case of the plaintiffs that Mr.Hamid Ali Khan and his two sisters had undivided and joint interest over the said properties as co-owners thereof and that the said Hamid Ali Khan and his sons and daughters took possession of properties illegally. It is the case of the plaintiffs that Hamid Ali Khan had no right at all under Mohammedan Law to transfer either by way of partition, gift, Hibba or in any other way, the properties of co-ownership and thus the legal heirs of the said Hamid Ali Khan could not have claimed exclusive ownership in respect of those properties at the hands of the defendants allegedly in the possession of the defendants Nos.1 to 12. The plaintiffs accordingly sought partition and possession of the suit properties which were allegedly at the hands of the defendant Nos.1 to 12.
10] The defendant Nos.1 to 12 had denied the said demand by letter dated 15th May, 1996. According to the plaintiffs, cause of action thus arose when the defendant Nos.1 to 12 denied the share of the plaintiffs and to make ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 30 partition of the suit properties. The plaintiffs accordingly filed a suit on 12th December, 1996, inter alia praying for possession by way of partition of the lands and also the house properties shown under the Schedules I and II to the extent of 3/8th share and also prayed for directions against the defendants to deliver the possession thereof. The plaintiffs also prayed for a decree to recover amount of Rs.13,980.76-75 Paise against the defendants Nos.1 to
12. The plaintiffs also sought declaration that the plaintiffs are entitled to receive their proportionate share from and out of compensation amount as determined under the said Reference filed by Hamid Ali Khan and after his death, as continued by the defendant Nos.1 to
12. The said suit was resisted by the defendants Nos.1 to 12 by filing written statement 14th October, 1999. 11] On 3rd February, 2003, the learned Trial Judge recasted the issues which were framed on 14 th October, 1999. The re-casted Issue No.4 was -
"Whether defendants 2 to 6 and 8 to 12, in the alternative, prove that Hamid Ali Khan perfected ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 31 his title to suit properties by adverse possession ?"
The issue No.8 was -
"Whether defendants 102( 1 & 2), 103,191, 192 and 193 prove, in the alternative, that they have perfected their title to the property by adverse possession ?"
The Issue No.10 was -
"Whether suit is bad for non-joinder of necessary parties ?"
12] In the written statement filed by the defendant Nos. 1 to 12, it was their case that the said Hamid Ali Khan was exclusive owner and possessor of the suit lands. It was alleged that the said Hamid Ali Khan had remained in exclusive, continuous and open possession and enjoyment of the properties described in Schedules I and II as exclusive owner and possessor, to the knowledge of all including the plaintiffs and defendants Nos.13 to 15 and their ancestors. In the additional written statement, it was brought on record by the defendant Nos.1 to 12 that large number of properties described in Schedules I and II were already sold and ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 32 transferred by the said Hamid Ali Khan in favour of several parties.
13] On 1th March, 2000 some of the defendants filed application ( Exhibit 58) inter alia praying for framing preliminary issue of non-joinder of the necessary parties. On 7th April, 2000, the learned Trial Judge framed a preliminary issue i.e. '' Whether the suit is incompetent for non-joinder of the necessary parties ?''. The said order was not challenged by the plaintiffs. 14] On 3rd May 2000, the plaintiffs filed an application (Exhibit 64) in the said suit inter alia praying for time to implead necessary parties. On 10 th July, 2000, the learned Trial Judge passed an order below (Exhibit 64) granting time to the plaintiffs to implead necessary parties. On 8th September, 2000, the plaintiffs filed an application (Exhibit 68) for carrying out amendment of the plaint to add 252 defendants.
15] On 17th November, 2000, summons were issued to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 33 the added defendants. On 27th November, 2000, the Bailiff submitted report that some of the defendants had expired. On 20th November, 2002, the plaintiffs filed Pursis ( Exhibit 212) to pass appropriate order against the defendants who had expired. On 4 th December, 2002, the learned Civil Judge, Senior Division, passed order of abatement against the dead defendants. The said order was not challenged by the plaintiffs. 16] On 7th February, 2003 the learned Civil Judge, Senior Division, passed an order below Exhibit 232 for hearing of the preliminary issue. On 27th February, 2003, the learned Trial judge allowed the said application (Exhibit 232) for framing preliminary issue. On 13 th March, 2003, the plaintiffs filed an application (Exhibit
235) inter alia praying for review of the order passed by the learned Trial Judge on 27th February, 2003 below (Exhibit 233). On 5th April, 2003, the learned Trial Judge dismissed the said application (Exhibit 235). The said order was not challenged by the plaintiffs. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 :::
First Appeal 269 of 2006 34 17] On 16th July, 2003, the learned Trial Judge passed an order below Exhibit No.1. By the said order dated 16th July, 2003, the learned Trial Judge held that the suit suffered from non-joinder of the necessary parties. The defendant Nos.2 to 6, 8 to 12 had placed on record several documents in which names of transferees had been specified, who were not joined as parties to the suit. The learned Trial Judge considered the arguments of the defendant Nos.2 to 6, 8 to 12 that the said Hamid Ali Khan had sold several plots from the part and parcel of the suit properties. Son of Hamid Ali Khan had also sold number of plots. There were nearly 400 instances of the subsequent transfer of the suit properties in favour of various alienees, pursuant to which the names of the purchasers had been entered in the City Survey record.
18] It was contended by those defendants that those purchasers had not been added as defendants and thus the suit itself was bad for non-joinder of the necessary parties. It was contended by those defendants ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 35 that out of 135 Acres of land, around 100 Acres of land was in actual possession of the purchasers who were not impleaded as parties to the suit. The learned Trial Judge, after recording these findings, however, held that instead of dismissing the suit at once, it was proper to give an opportunity to the plaintiffs, to implead subsequent transferees as a party defendants, within four weeks from the date of the said order. The plaintiffs thereafter filed an application on 13 th August, 2003 (Exhibit 245) for adding defendant Nos.270 to 828. On 11th September, 2003, the plaintiffs filed an application (Exhibit 252) inter alia praying for not passing any order for two weeks.
19] The learned Trial Judge accordingly adjourned the matter for two weeks. On 3 rd September, 2003, the plaintiffs filed an application (Exhibit 260) for seeking permission to withdrew suit against the defendant No.16 onwards. The said application was opposed by the defendants by filing reply on 13 th October, 2003.
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First Appeal 269 of 2006 36 20] On 20th October, 2003, some of the defendants filed an application (Exhibit 268) inter alia praying for abatement of the suit in entirety. On 10 th, December, 2003 the learned Trail Judge, dismissed the application filed by the plaintiff (Exhibit 260) seeking withdrawal of the suit against the defendant No.16 onwards. On 10th December, 2003, the learned Trial Judge allowed the application (Exhibit 268) filed by those defendants inter alia praying for abatement of the suit in the entirety. On 8th March, 2004, the plaintiffs filed Appeal From Order in this Court inter alia challenging the order passed by the learned Trail Judge below (Exhibits 260 and 268). On 7 th April, 2004, the plaintiffs withdrew the said Appeal from Order as not maintainable and thereafter filed this First Appeal on 16 th September, 2016 along with Civil Application for condonation of delay.
21] On 11th February, 2005, this court allowed the Civil Application No.700 of 2004 filed by the plaintiffs inter alia praying for deletion of the defendants Nos.16 to 271 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 37 from the array of the respondents. It was however, made clear in the said order that deletion of those respondents was at the risk of the respondents. On 29 th August, 2005, the plaintiffs filed a Civil Application bearing No.720 of 2004 in this Court for deletion of the defendant Nos. 9,11 & 12. The said Civil Application was allowed by this Court. On 4th April, 2005, the defendant No.3 filed a Civil Application bearing No.1128 of 2008 inter alia praying for dismissal of the First Appeal for non-joinder of necessary parties.
22] Mr.N.V. Gaware, learned counsel for the plaintiffs, invited our attention to various annexures to the First Appeal and also to the separate compilation of the documents filed by the parties in the First Appeal. He also invited our attention to the impugned order passed by the learned Trial Judge. The learned counsel for the plaintiffs made following submissions for consideration of this Court.
(I) The original defendants Nos.1 to 5 were the co- heirs and were entitled to share in the suit ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 38 properties along with the plaintiffs. Some of the defendants have sold their shares to third parties. Those third parties were impleaded as defendants Nos.16 to 269.
(II) There was no concept of co-parcenery in view of the fact that the plaintiffs and the defendants Nos.1 to 12 were Mohammedan. Shares of the co- heirs are also fixed in the Mohammedan Law which is applicable to these parties and were not required to be heard in the suit for partition filed by the plaintiffs. The defendant Nos.16 to 269 were alienees who had alleged to have purchased various portions of the undivided share of the defendants Nos.1 to 5 in the suit properties.
(III) Reliance is placed on the genealogy of the family produced on record. Reliance is also placed on the compromise decree between the plaintiffs and the defendant Nos.1,7, 13 to 15. The suit came to be abated by an order dated 4 th December, 2002 against some of the defendants who expired. The learned Trial Judge dismissed the entire suit as ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 39 abated by an order dated 10th December, 2003, on the ground that the plaintiffs had failed to bring on record the legal representatives of the alienees and also on the ground that the suit had already been abated against some of the alienees by relying upon the Order Order XXII Rule 4 of the Code of Civil Procedure, 1908.
(IV) The alienees who claimed right, title and interest in respect of some of the suit properties were neither necessary nor proper parties in a suit for partition and possession filed by the legal heirs of the original owners. The alienees would at the most step into the shoes of the vendors and had no exclusive right. The substantive prayer in the plaint is only against the co-heirs. Separate and independent proceedings can be filed against the subsequent purchasers by the plaintiffs after the suit for partition and possession is decreed by the learned Trial Judge.
(V) The plaintiffs and defendants Nos.1 to 12 were tenants in common in the suit. Even if the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 40 alienees or their legal representatives would not have been brought on record as party defendants, the suit could not have been dismissed in entirety. Even if the legal heirs of some of the defendants were not brought on record, under Order XXII Rule 2 of the Code of Civil Procedure, 1908, the entire suit could not have been abated. The impugned order passed by the learned Trial Judge is contrary to Order XXII Rule 4 of the Code of Civil Procedure, 1908, and against the principles of law laid down by the Supreme Court and this Court. Finding of the learned Trial Judge in the impugned order that there was adverse claim of the defendants and alienees is ex-facie incorrect. There were definite and separate claims of the individuals. The alienees would claim only through the defendants Nos.1 to 12 and not individually. Subsequent purchasers can always claim possession subsequently but cannot claim joint share along with co-heirs. VI] Reliance is placed on Order XXII Rules 1 and 4 of the Code of Civil Procedure, 1908, to contend ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 41 that the right to sue survives against the remaining defendants even if some of the alienees would have been deleted or even if the legal heirs of some of the legal representatives, which were already impleaded, were not brought on record. Reliance is also placed Order XXII Rule 3 of the Code of Civil Procedure in support of the submission that suit stands abated only against the deceased defendants and not in the entirety. No separate order is required to be passed by the Court for abatement of the suit against the defendants who had expired and even their legal representatives are not brought on record under Order XXII Rule 3 of the Code of Civil Procedure, 1908.
VII] The application made by some of the defendants (Exhibit 268) for dismissing the suit in its entirety as abated itself would not be maintainable and was without any legal basis and more particularly when the suit was being proceeded for recording of evidence. Issues were also framed including the issue as to whether the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 42 suit was bad for non-joinder of the necessary parties after framing the preliminary issue. The learned Trial Judge could not have entertained the application by some of the defendants for dismissal of the suit in entirety as abated for not bringing the legal heirs of some of the alienees, who had expired during the pendency of the suit.
VIII] The application (Exhibit 260) was made by the plaintiffs for deletion of the those defendants Nos.16 onwards as the plaintiffs did not want to pursue the suit against those alienees. Some of the alienees were dead after their impleadment as party defendants. The address of some of the alienees, who were impleaded as party defendants, was not described by the plaintiffs and hence, service of summons was not completed. The Bailiff has submitted report accordingly.
(IX) The hearing of the suit was unnecessarily delayed, which was totally attributable to the defendants. The plaintiffs had rightly applied for deletion of the defendants No.16 onwards from the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 43 cause title of the plaint. None of the alienees had filed any application for impleadment of the legal heirs of those deceased legal alienees or for dismissal of the suit in entirety as abated. The application was filed by the some of the co-heirs deliberately with a view to delay the outcome of the suit and not to proceed with the trial in near future. No such application, made by some of the co-heirs for dismissal of the suit as abated, could have been entertained by the learned Trial Judge.
X] Various observations made by the learned Trial Judge in the impugned Order dated 16th July, 2003 below Exhibit 1 were made out of the context and without any basis. The said impugned order of dismissal of the suit in entirety as abated passed by the learned Trial Judge requires to be set aside.
XI] Reliance is placed on the Order I, Rule 10 (II) of the Code of Civil Procedure, 1908 to contend that the Court may strike out or add any party to the suit at any stage even on application of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 44 any of the party or even suo-moto. Merely because, at one stage, the plaintiffs had impleaded defendant Nos. 16 to 271 as defendants, who claimed to be the alienees, the plaintiffs were entitled to file application for deletion of their names at any stage of the proceedings, as they were neither necessary parties nor proper parties according to the plaintiffs.
XII] Reliance is placed on Order I, Rule 9 of the Code of Civil Procedure, 1908 and it is submitted that no suit shall be entertained with the mis- joinder or non-joinder of the parties. The Trial Court could not have decided the preliminary issue after framing of issues under Order XIV Rule 2 of the Code of Civil Procedure, 1908. The learned Trial Judge, therefore, ought to have decided all the issues together under Order XIV Rule 2 of the Code of Civil Procedure, 1908. The learned Trial Judge, however, committed a complete failure of justice by deciding the preliminary issue after framing of issues under Order XIV Rule 2 of the Code of Civil ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 45 Procedure, 1908. There was no bar to file a suit, subject matter of which was for partition and separate possession filed by the plaintiffs. The issue as to whether the suit filed by the plaintiffs would stand abated or not, partly or fully, also could have been decided at the time of trial. XIII] The application filed by defendant Nos. 2 to 6 and 8 to 12 (Exhibit 268) for abatement of the suit was not filed under any provision of the Code of Civil Procedure 1908, and thus, ought to have been dismissed on this ground alone by the learned Trial Judge. The learned Trial Judge had, thus, no jurisdiction to entertain any such application which was filed not under any provision of the Code of Civil Procedure, 1908.
XIV] The share of the plaintiffs and co-heirs, being Muslim, were already fixed and would not fluctuate in spite of the sale of the undivided share by any of the co-heirs in favour of the third party. Only the co-heirs in the family were necessary and proper parties to the suit for partition and ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 46 possession and not the alienees.
XV] The inheritance in this case opened after the death of the ancestor whose property is claimed by the parties by way of inheritance. Reliance is placed on various paragraphs from the commentary of Mulla on Mohammedan Law in support of these submissions which read thus :
Commentary on Mohammedan Law :-
Son gets double share of the daughter under the Mohammedan Law applicable to the Suni.
XVI] There was no likelihood of any conflicting decrees in this case i.e. one decree against the co-sharer and another against the alienees in view of lis-pendens as also subsequent purchasers were not required to be impleaded as party to this suit. Suit at the most could have been dismissed only against those alienees - defendants who had expired.
XVII] Reliance is placed on the judgment of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 47 the Supreme Court in case of Shahazada Bi Vs. Halimabi ( Since Dead) By Her Lrs. (AIR 2004 (SC) 3942) and in particular paragraph Nos.2 to 9 in support of the submissions that since the interest of the co-defendants were separate as in case of co-
owners, the suit would be abated only against them claiming particular of the interest of the deceased parties.
XVIII] The appeal can stand abated as against the deceased respondent under Order XXII Rule 4 (3) read with Order XXII Rule 11 of the Code of Civil Procedure where no application is made to implead the legal representatives of the deceased defendants / respondents. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other.
XIX] Reliance is placed on the judgment of Allahabad High Court in case of M.T. Zabaishi ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 48 Begam Vs. Naziruddin Khan and others (AIR 1935 Allahabad, 110) and in particular on page No.115 in support of the submissions that the interests acquired by the heirs of a deceased Mohammedan in his property are always definite, distinct and ascertained, and as such the absence of one co- heirs from a suit brought by another co-heirs for possession of his share cannot be a ground for dismissing the suit in entirety.
XX] Reliance is placed on the judgment of the Supreme Court in case of Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai (AIR 1982 Supreme Court 121) and in particular para No.18 in support of their submissions that even if the legal heirs of the some of the alienees were not brought on record by the plaintiffs, the suit could not be abated as against the other surviving defendants and the plaintiffs were not legally barred from proceeding with the suit against the surviving defendants.
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First Appeal 269 of 2006 49 XXI] Reliance is placed on the judgment of the Supreme Court in case of Assiz Vs. Chithamm (AIR 1954 Travancore-Cochin 370) and in particular paragraph No. 20 in support of the submissions that in a suit by an heir for the recovery of his share, the co-heirs are proper parties but as the interest of the heirs are distinct, the omission to join a co-heir is not a good reason for dismissing the suit.'' XXII] Reliance is placed on the judgment of the Supreme Court in case of Syed Shah Ghulam Ghouse Mohiuddin Vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri (1971 AIR (SC) 2184) and in particular paragraph No.21 in support of the submissions that in Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The share of heirs under Mohammedan Law are definite ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 50 and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim, there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law.
XXIII] Reliance is also placed on the judgment of this court in the case of Abbas Abdul Mhalter and another Vs. The Director Resettlement and others (AIR 1997 Bombay 237) and in particular para No. 6 and 7 in support of the submission that in so far Mohammedan are concerned the heirs of the deceased Mohammedan hold the property as tenants-in-common having specified share therein. XXIV] Reliance is also placed on the judgment of the Privy Council in the case of M.T. Zabaishi Begam v. Naziruddin Khan (AIR 1935 Allahabad,
110) and in particular paragraph Nos.15 to 19 in support of the submission that no suit shall be defeated by reason of non-joinder of parties and suit could have been dismissed at the most as ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 51 abated only against those defendant whose legal heirs were not brought on record by the plaintiff and not in the entirety.
XXV] Reliance is also placed on the judgment of Kashmir High Court in case of Khazir Bhat Vs. Ahmad Dar and others ( AIR 1960 JAMMU AND KASHMIR 57) and in particular paragraph No.6 in support of the submission that the doctrine of survivorship is not known to Mohammedan Law to the heirs of a deceased Mohammedan who succeed to a definite fraction of every part of his estate. The specific share of each of the heirs is also determined by the law itself and on partition only distribution by metes and bounds and separate possession and enjoyment of the specific items of the properties is happened.
XXVI] Reliance is placed on the judgment of Madras High Court in the case of Haji Mohamed Abdullah and others Vs. C. Abdul Rahiman and others (AIR 1964 Madras 234) and in particular ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 52 para No. 1 in support of the submissions that under the Mohammedan law, the heirs inherit their share for the definite fractions. When there are several heirs and each of them owns a definite fraction, they are all joint co-owners or tenants-in- common. Each of the heirs become entitled to his definite fraction of every part of a estate. XXVII] Reliance is placed on Mohammad Subhan Vs. Dr. Misbahuddin Ahmad &other( AIR 1971 Rajasthan 274 ) Page No. 54 and in particular paragraphs Nos. 23, 24 and 36 in support of the submissions that in case of Mohammedan Law each of the heirs get definite share.
XXVIII] The reliance is placed on the judgment of the Supreme Court in case of Beharilal Vs. Bhuri Devi (AIR 1997 (SC) 1879) and in particular paragraphs No. 8 and 9 in support of the submission that the suit for non joinder of the legal heirs of some of the alienees defendants could not ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 53 have been dismissed on the ground of non joinder of the necessary parties in view of the fact that the issues framed under Order 14 Rule 2 included the said issue and the evidence was likely to start in the matter.
XXIX] Reliance is placed on the decision of the Supreme Court in the case of Rukmani Ammal Vs. Jagdeesa Gounder (AIR 2006 (SC) 276) and in particular paragraph No.20 in support of the submissions that even if the legal heirs of some of the alienees defendants were not brought on record, at the most decree in favour of the plaintiffs would not bind such parties. However, the suit on that count could not have been dismissed on its entirety.
XXX] The reliance is placed on the judgment of this court in case of Waman Nago Choudhari & Ors. Vs. Mahadu Nago and Brothers & Others (2011(4) Bombay Cases Reporter 632) and in particular paragraph Nos. 7 and 8 in support of the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 54 submission that since alienees who expired , in a suit for partition and possession, were not necessary parties for complete and final adjudication of the question involved in the suit. Such, legal heirs of the alienees of the deceased alienees also therefore were not necessary parties under Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908. The plaintiff could not have been forced to join the other alienees and legal heirs of alienees. Some of the plaintiffs are ladies and to implead those large number of alienees at the first instance and thereafter to implead legal heirs of the deceased alienees was causing substantial delay in the proceeding. Suit was filed in the year 1996. Though an order was passed by the Court to decide the said suit by 2002, the evidence in the suit could not be started due to frivolous application filed by the co-heirs. More than 600 parties are claiming to be alienees as on today. Issue of non-joinder of parties could be gone into by the learned trial judge, during the course of oral evidence in the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 ::: First Appeal 269 of 2006 55 suit. The procedural law is meant to advance the cause of justice. No relief have been claimed by the plaintiffs against those alienees/ purchaser. XXXI] Reliance is placed on the judgment of this court in case of Vitthal Bapu Mane Vs. Balasaheb Sidhu Masal and others (2017(3) Mh.L.J. 232) in support of the submissions that in a suit for partition by a coparcener, after alienation of the certain property by a co-parcener, it is not necessary to seek a specific declaration for setting- aside alienation in favour of the purchaser. 23] Mr.P.M. Shah, the learned Senior Counsel for the defendants No.2, on the other hand, invited our attention to various averments made in the plaint and also the prayers. He also invited our attention to various annexures to the plaint, compilation of the documents and various orders passed by the learned Trial Judge from time to time. The learned Senior Counsel made the following submissions :- ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:17 :::
First Appeal 269 of 2006 56
(a) The suit, as filed by the plaintiffs, itself is not properly constituted. All the properties of the estate are not properly included. The entire estate of the deceased is not before this Court. All the co-
sharers or co-owners of the of the suit properties are not impleaded as parties to the suit.
(b) The plaintiffs have not only prayed for partition of the suit properties in this suit, but also for separate possession of all the properties. Most of the suit properties are already sold by the defendant No.1 much prior to the date of filing of the suit. Large number of alienees are in physical possession of those properties under various documents including registered documents as owners. Since the plaintiffs have prayed for recovery of possession also in respect of those plots, which are already sold much prior to the date of filing of suit or thereafter, such relief of possession in respect of such properties cannot be granted by the Court without impleading such alienees as party to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 57 this suit. The parties in possession of such properties will be necessary parties. Attention of this Court is invited to the prayers made in the plaint. The reliefs are sought in respect of the properties in the hands of the transferees.
(c) No effective decree could have been passed by the learned Trial Judge in respect of such properties which are in possession of the transferees without impleading them or even without impleading the legal heirs of some of such transferees as parties to the suit. Though decree can be passed in respect of the remaining properties, no executable decree can be passed by the learned Trial Judge against the transferees, who were not parties to the suit. The details of the properties already transferred by the co-hearers are already on record to the knowledge of the plaintiffs. The application for amendment was made by the plaintiffs based on those details.
(d) The issue of lis pendens raised by the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 58 plaintiffs is not applicable to the transactions of sale effected much prior to the filing of the suit. The transferees of various properties forming part of the suit lands are claiming through Mehboob Khan, who expired in the year 1915. The succession in respect of those properties, even according to the plaintiffs, were opened in the year 1915. The plaintiffs are claiming share of said Mehboob Khan in this suit after more than 81 years.
(e) There was a suit filed by the two daughters of the Mehoob Ali Khan against Mr.Hamid Ali Khan and successors of Hamid Ali Khan. Some of such litigants are also referred in the plaint itself by the plaintiffs. The co-heirs, who were in possession of the suit properties, also acquired title by adverse possession. The suit filed by the plaintiffs is not only for the title, but also for partition and separate possession.
(f) Hamid Ali Khan had four sons and seven ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 59 daughters. The defendant Nos.1 to 4 who are his sons and defendant Nos. 6 to 12 are his daughters. In paragraph 18 of the plaint, 1/2 share of the defendant Nos.1 to 12 is admitted in the suit properties. The remaining 1/2 share is claimed by the Noor Bano and Abeda Bano equally. There was compromise between plaintiffs and the some of the defendants i.e. defendant Nos.1 and 7. The defendants Nos.13,14,15 have also compromised the dispute, who are the successors of Noor Bano. The plaintiffs did not proceed against the defendant Nos.1 and 7 in view of the compromise decree (Exhibit 24). Reliance is placed on order passed by the Court regarding compromise on 4 th September, 2001.
(g) The defendant Nos.2 to 6 and 8 to 12 are not consenting parties to the compromise. The plaintiffs have deleted the defendant Nos. 1 and 7 who were admittedly the co-owners of the suit properties and thus the suit is bad for non-joinder of the necessary parties. Those properties which ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 60 were subject matter of the compromise are not available for partition today. The defendant No.1 himself had sold 68 properties, the details of which are annexed at page no.51 of the compilation.
(h) The plaintiffs themselves filed an application (Exhibit 64) for impleading the alienees as necessary parties to the suit. The alienees had also filed separate application. The application of the plaintiffs for impleadment was allowed by the learned Trial Judge. Mr.Jamseth Amir Khan, who was one of the transferees and purchaser of one of the properties by way of sale-deed executed in the year 1985 is also not made party.
(i) The plaintiffs also undertook to implead those persons as party - defendants to preempt that no preliminary issue shall be decided by the learned Trial Judge and accordingly agreed to implead all the alienees. On the application of the plaintiffs, the learned Trial Judge allowed the plaintiffs to carry out amendment and to implead the alienees. The learned Trial Judge had given opportunity to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 61 the plaintiffs to avoid dismissal of the suit for non- joinder of the necessary parties.
(j) The application made by the plaintiffs for amendment was in compliance with the order dated 10th July, 2000 at page No.48 of the compilation. All the transactions are made prior to the date of institution of the suit. Even if the Trial Court would have passed decree, as prayed by the plaintiffs, such a decree could not have been executable. The prayers in the plaint were totally defective. Though some of the co-heirs have admittedly compromised their dispute with the plaintiffs, the decree for partition and possession is sought also in respect of those properties. The purpose of the lands is also converted into Non-Agricultural by the concerned alienees.
(k) In the plaint, daughter of Noor Bano should have been impleaded as plaintiff No.1. Upon her demise, her legal heirs were brought on record. However, in the appeal, the defendants No.4-1 i.e. Anjuun ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 62 Jahanahra has been joined as appellant No.4-1, original plaintiff Nos.4-2 and 4-3 are not joined as appellants but are joined as the respondent Nos. 271(A) and 271(B).
(l) By an order dated 11th February, 2005, on the application of the plaintiffs in Civil Application No.1170 of 2004, names of the defendant Nos. 16 to 271 were deleted from the array of the respondents in the appeal at the risk of the plaintiffs. The original plaintiff Nos.4-1 and 4-2 were also joined as respondent Nos.270-(A) and 270(B). The learned Trial Judge dismissed the suit against all the plaintiffs including original plaintiff Nos.4-1 and 4-2. No appeal is filed by plaintiff Nos.4-1 and 4-2 against the order of dismissal of the suit. No cross objections are filed by them. The respondent Nos.6 to 271 are deleted with effect from 11th February, 2005 at the stage of condonation of delay itself and are excluded from the suit property. Dismissal of the suit against the original plaintiff Nos.4-A and 4-B has become final. If this appeal is allowed by this ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 63 Court and if the decree is set-aside, there would be a conflicting decree against the original plaintiff Nos.4- A and 4-B against whom the order of dismissal of the suit has attained finality. The appeal suffers from the defect of a fundamental nature.
(m) The decree between plaintiff Nos.4-1 and 4-2 also would be conflicting decree. Even if this First Appeal is allowed by this Court, there will be conflicting decrees inter se between legal heirs and Hanfisa Begum i.e. original plaintiff No.1. The suit would be dismissed against the plaintiff Nos.4-1 and 4-2 and would be decreed in favour of plaintiff No.4- 3, which would be conflicting decree inter se between them. Appeal is continuation of the suit. Since the appeal itself is defective, the suit filed by the plaintiffs can not be restored to its file.
(n) In the civil application for condonation of delay, the plaintiffs had applied for issuance of notice only to defendant nos.2 to 5 for the purpose of delay condonation. No notices were issued to the defendant nos.6 to 12 (original defendant nos.6 to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 64
12) in application for condonation of delay. Those defendants were also not parties to the substantive appeal. Attention of this Court is invited to page no.14 of the compilation to demonstrate that no notices of the appeal were sought to be served upon defendant nos.6 to 12. Defendant nos.6 to 12 were similarly situated to defendant nos.1 to 4, who were also co-sharers.
(o) In the plaint and more particularly in paragraph no.18, the plaintiffs themselves had averred that the defendant nos.1 to 12 jointly had ½ share in the suit properties. As a result of the plaintiffs' not having issued any notices to the defendant nos.6 to 12 who were co-sharers / co- owners of the suit property, those defendants are excluded from the litigation. This exclusion of defendant nos.6 to 12 was the defect of fundamental nature going to the root of the matter. There are several latent and patent defects in the frame of the suit.
(p) Application by some of the defendants for ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 65 dismissal of the suit in these circumstances was justified. Reliance is placed on Order XIV Rule 2(b) and Order I Rule 9 of the Code of Civil Procedure, 1908. In view of the amendment to Order I Rule 9 of the Code of Civil Procedure with effect from 1.2.1977, the impleadment of necessary parties to the suit was must which goes to the root of the matter. The trial Court thus could not have passed an executable decree. The appellate Court also simultaneously cannot pass any decree in the suit in these circumstances which would be an effective or executable decree.
(q) The original owner had admittedly expired in the year 1915. The succession had thus opened in the year 1915 itself. The suit for partition and for recovery of possession has been, however, filed by the plaintiffs in the year 2006. The first suit filed between the family members of Hamid Ali Khan was filed in the year 1944 (Suit No.315/1944). The suit thus became suit for title and thus the presence of all the legal heirs and representatives and the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 66 persons claiming through them became necessary. Hamid Ali Khan was setting up the claim of title all throughout. The plaintiffs themselves have referred to five such litigations referred to in the plaint inter- se defendants.
(r) Reliance is placed on paragraph no.44-A of the written statement filed by the defendant no.2 in support of the submission that the co-heirs had raised a plea of adverse possession. The issues were re-casted by the learned trial Judge. A reference is made to Issue No.10 of the re-casted issue, which was whether the suit was bad for non-joinder of necessary parties.
(s) Reliance is placed on the judgment of Patna High Court in case of Churaman Mahto & others v. Bhatu Mahto & others (AIR 1935 Pat 241) and in particular paragraph nos.1 and 4 in support of the submission that in a suit for partition, all the members of the joint family were necessary parties. One of the sons of deceased was not impleaded as party to the appeal. The appeal, therefore, stood ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 67 abated in its entirety.
(t) Reliance is placed on the judgment of the Supreme Court in the case of Babu Sukhram Singh v. Ram Dular Singh & others (AIR 1973 SC 204) and in particular paragraph nos.9, 12 and 15 in support of the submission that if a party claims a joint property, all the co-heirs or co-owners would be necessary parties to the suit. It is submitted that even before 1976 Amendment, the Supreme Court had taken such a view.
(u) The learned trial Judge had passed the impugned order after giving full opportunity to the plaintiffs to implead the alienees and had specifically held that those alienees were necessary parties. The plaintiffs had given an undertaking to the learned trial Judge and had amended the plaint. The order passed by the learned trial Judge allowing such amendment was not challenged by the plaintiffs. The entire estate is requested to be represented before the Court. All the co-owners are thus required to be impleaded in the suit.
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First Appeal 269 of 2006 68
(v) Even in case of Muslims to whom the Mahomedan Law applies, the extent of share pleaded in the plaint is required to be adjudicated upon, which was admittedly a subject matter of the dispute in the plaint filed by the plaintiffs. The co-owners and co-heirs had claimed the title due to various reasons in the suit properties. The shares claimed by the plaintiffs were admittedly disputed by the defendant nos.1 to 12 in the suit properties. The share of the parties would thus crystallize on the date of decree in the suit in such circumstances. (w) Reliance is placed on the judgment of Gujarat High Court in case of Ali Amad (deceased represented by L.Rs.) v. Sindhi Ebrahim Kasam & others (AIR 1983 Gujarat 156) and in particular paragraph nos.3 to 6 in support of the submission that even in cases where the law of inheritance of Hindu operates, there are specified shares and the property devolves on those sharers in specified shares as it is in the case of Muslims. The question of representation does not arise when different ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 69 persons inherit the property in different specified shares. As long as partition is not effected, there is an undivided specified share of all the sharers, both Hindu and Muslims in respect of the entire property and there is nothing peculiar about the Muslim inheritance.
(x) Reliance is placed on the judgment of this Court in case of Equbal Begum v. Abdul Rahim (2009 (2) Mh.L.J., 547) and in particular paragraph nos.8, 12, 14 and 16 in support of submission that in case of a suit for partition decree, on death of one of the respondents, passing of decree in favour of the appellants will be contradictory to the decree which has become final with respect to the same subject matter between them and the deceased, who was one of the co-heirs.
(y) Reliance is placed on the judgment of the Supreme Court in case of Kanakarathanammal v. V.S. Loganatha Mudaliar & another (AIR 1965 SC
271) and in particular paragraph nos.9, 14 and 15 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 70 in support of the submission that the plaintiffs had accepted the order passed by the learned trial Judge that impleadment of the alienees was necessary being necessary parties to the suit and the plaintiffs having carried out the amendment by impleading such alienees to the plaint and thus could not have applied for deletion of those alienees from cause title of the plaint and also could not have refused to implead the legal heirs of some of those alienees who had expired during the pendency of the suit. (z) Reliance is placed on the judgment of Gauhati High Court in case of Rajiba Khatoon & others v. Rafiqui Hussain Bhuyan (1998 (4) GLT 464) and in particular paragraph no.6 in support of the submission that without impleading the co-heir of the deceased owner in a suit for partition, the entire suit will abate and not only against the particular defendant. Most of the parties to the suit who were impleaded initially in the appeal memo have been deleted by the plaintiffs including some of the co- heirs. In these circumstances, the entire appeal also ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 71 shall stand abated.
(aa) Defendant nos.9, 11 and 12, who were contesting defendants and had filed written statement, have been deleted in these proceedings. This Court had permitted such amendment at the instance of the plaintiffs at the risk of the plaintiffs. It was specifically mentioned in the order that such deletion was permitted at the risk of the plaintiffs. (bb) No notices have been issued to the legal heirs of defendant no.1 i.e. who were impleaded as defendant nos.1-B and 1-C. Some of the legal heirs from the branch of the plaintiffs are not before the Court. Suit is already dismissed against those parties before the trial Court. Rights and interest of those parties cannot be decided by this Court in this appeal in view of those parties having excluded from the appellate Court proceedings at the risk of the plaintiffs. All the successors in interest of Mehboob Ali Khan are not admittedly before this Court. (cc) Defendant nos.6 to 12, who were the contesting defendants and were parties before the trial Court ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 72 having share in the property, have been excluded from the appeal by the plaintiffs. All the co-heirs and representatives of Mehboob Ali Khan are not before the Court, which would affect and invalidate the entire proceedings.
(dd) Reliance is placed on the judgment of the Supreme Court in case of Kenchegowda (since deceased) by L.Rs. v. Siddegowda alias Motegowda (1994) 4 SCC 294) and in particular paragraph nos.14 and 16 in support of the submission that a suit even for partial partition in the absence of the inclusion of other joint family properties and the impleadment of other co-sharers is not warranted in law.
(ee) Reliance is placed on the judgment of the Supreme Court in case of Sri Chand & others v. M/s Jagdish Pershad Kishan Chand & others (AIR 1966 SC 1427) in support of the submission that it is laid down by the Supreme Court as to when an appeal abates in its entirety. It is submitted that each and ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 73 every test laid down by the Supreme Court in the said judgment specifically applies to the facts of this case. If this appeal is allowed, there will be a conflicting decree against some of the defendants since the decree against those defendants would stand, whereas against some of the defendants, the decree would not survive. Some of the defendants before the trial Court were not brought before the appellate Court. The decree as prayed in the appellate Court, if passed, would be thus an ineffective and inconsistent decree. (ff) The decree against the surviving representatives has to be an executable decree. In Schedules I and II of the plaint, entire properties are the subject matter of the suit. The reliefs sought by the plaintiffs are not only for partition but also for recovery of possession of the entire properties. The individual share of the co-sharer / co-heir is not being partitioned or ear-marked. The frame of the appellate proceedings itself is defective fundamentally which goes to the root of the matter ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 74 invalidating the whole proceedings. Modification of decree against some of the defendants would not be possible.
(gg) Reliance is placed on the judgment of the Supreme Court in case of Budh Ram & others v. Bansi & others (2010) 11 SCC 476) and in particular paragraph nos.2, 3, 4, 6 and 12 to 20 in which the law on the issue as to when the appeal stands abated in toto is laid down. The existence of a joint right as distinguished from tenancy-in- common alone is not the criterion but the joint character of the decree, de-hors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged. It is held that if any relief is granted and the decree is ultimately passed would become totally unenforceable and mutually self-destructive and unworkable vis-a-vis the other part, which had become final. The appeal has to be declared abated in toto. It is the duty of the Court to preserve and protect the rights of the parties.
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First Appeal 269 of 2006 75 24] Mr.R.N. Dhorde, learned Senior Counsel for defendant no.4 adopted the arguments advanced by Mr.P.M. Shah, learned Senior Counsel for the defendant no.2 and made additional submissions as under:-
i] There was a compromise between defendant nos.1,7,13, 14 and 15. The defendant no.1 had sold several properties. All the parties were in joint possession. In view of out of Court settlement, those defendants who were parties to the compromise decree were paid various amounts. No disclosure is made by those parties as to how much amount was paid to them under the said compromise decree. Those defendants have already got their share in the joint properties. Defendant nos.13 to 15 and plaintiff nos.1 to 6 are thus not concerned in respect of those properties.
ii) However, in the plaint, the plaintiffs have prayed for a decree of partition and separate possession in respect of the properties including the properties which were subject matter of that ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 76 compromise decree and against all the defendants without carrying out any amendment. The compromise between those parties has become final and is not challenged. iii] Defendant no.1 is not before this Court. Now the legal heirs of defendant no.1 are not brought on record. In view of the fact that the parties were tenants in common, the decree is inseparable. No contradictory decree can be passed by the Court.
iv] After framing of preliminary issues by the learned trial Judge, the plaintiffs had filed an application for impleadment of the alienees as necessary parties. In support of this submission, attention of this Court is invited to various pleadings filed by the plaintiffs for such impleadment and the orders passed by this Court prior to such application and passed thereafter. Summons on some of the defendants could not be served. The plaintiffs had already implemented the order of impleadment passed ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 77 by this Court which order itself was not challenged. The plaintiffs had given incomplete address of some of the defendants and were solely responsible for the same. On the basis of the Purshis dated 20.11.2002 filed by the plaintiffs, the suit was abated against some of the defendants.
v) Reliance is placed on the said order dated 4.12.2002 passed by the learned trial Judge dismissing the suit as abated against defendant nos.84, 85, 88, 89, 94, 95, 104, 149, 160, 164, 179 and 184. The said decree of dismissal as abated was passed at the request of the plaintiffs. Order dated 7.2.2003 passed by the learned trial Judge to hear the preliminary issue first was not challenged by the plaintiffs and the said order attained finality.
vi] The plaintiffs had made an application for deletion of defendant nos.9, 11 and 12 and though those defendants were necessary parties to the suit, any decree that could have been ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 78 passed by the learned trial Judge or by this Court would be thus unexecutable and cannot be implemented.
vii] Reliance is placed by the learned Senior Counsel on the judgment of the Supreme Court in case of Badni (dead) by L.Rs. & others v. Siri Chand (dead) by L.Rs. & others (1999) 2 SCC 448 and in particular paragraph nos.6,7 and 10 in support of the submissions that some of the parties who were parties before the learned trial Judge have been deleted by the plaintiffs in this appeal and thus no decree can be passed by this Court against those parties who were necessary parties and thus this appeal deserves to be dismissed in entirety as abated to avoid conflicting decrees on the common issue and in respect of the same properties in respect of which reliefs were sought by the plaintiffs against all the defendants.
viii] Reliance is placed on the judgment of the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 79 Supreme Court in case of Bakshish Singh (dead) by L.Rs. v. Arjan Singh & others (1996) 8 SCC
323) and in particular paragraph no.4 in support of the submission that since the decree passed by the learned trial Judge was single and indivisible, there could not be inconsistent decrees as against the deceased defendants and the contesting surviving defendants. It is submitted that since the legal heirs of some of the subsequent purchasers were not brought on record, the decree as prayed for recovery of separate possession could not have been passed by the learned trial Judge and thus the suit was rightly dismissed as abated in entirety. ix] Reliance is placed on the judgment of this Court in case of Gajanan s/o Namdeo Kale v. Sakhubai w/o Bhimaji Kharat (died) & others (2012 (3) ALL MR 871) and in particular paragraph no.11 in support of the submission that since the decree sought by the plaintiffs ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 80 was inseparable and indivisible, in absence of the legal representatives of one of the deceased, the entire suit deserves to be dismissed as abated and not only against those defendants whose legal heirs and representatives were not brought on record by the plaintiffs, but as against all the defendants.
25] Mr.P.R. Patil, learned counsel for the defendant no.3 adopted the arguments advanced by Mr.P.M. Shah, learned Senior Counsel for defendant no.2 and made additional submissions as under:-
a] All the defendants impleaded in the suit were in possession even according to the plaintiffs, however, were not impleaded as parties. All the alienees (subsequent purchasers) are admittedly deleted by the plaintiffs at their own risk. The plaintiffs were aware of the fact that the suit properties were in possession of third parties. Though the plaintiffs had initially not impleaded those third parties as defendants to the suit, the plaintiffs ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 81 ultimately accepted the order passed by the learned trial Judge for impleadment of those parties and had amended the plaint. After carrying out amendment to the plaint after accepting the order of the learned trial Judge that those alienees were necessary and proper parties, the plaintiffs could not have applied for deletion of those parties from the plaint. Similarly, the plaintiffs could not have refused to implead the legal heirs and representatives of some of the alienees who were already impleaded as defendants in the plaint.
b] Learned counsel for the defendant no.3 placed reliance on the judgment of the Supreme Court in case of Ram Swarup & others v. S.N. Maira & others (1999) 1 SCC 738) and in particular paragraph no.3 in support of the submission that in a suit for recovery of separate possession, as filed by the plaintiffs, the parties who were actually in possession of the suit properties or any part thereof were necessary ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 82 parties without whose presence, no effective or executable decree could have been passed by the learned trial Judge. The entire suit was rightly dismissed as abated.
c] Reliance is placed on the judgment of the Supreme Court in case of Rajkumar Gurawara (dead) through L.Rs. v. S.K. Sarwagi and Company Private Limited & another (2008) 14 SCC 364) and in particular paragraph nos.16 to 18 in support of the submission that the inconsistent decree could not have been passed by the learned trial Judge.
d] Learned counsel for the defendant no.3 also pressed the Civil Application No.11288/2008 and would submit that if this Court dismisses the First Appeal filed by the plaintiffs, in that event, the Civil Application would also become infructuous, otherwise the same deserves to be allowed.
26] Mr.V.B. Jadhav, learned counsel for the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 83 defendant no.5 adopted the submissions advanced by Mr.P.M. Shah, learned Senior Counsel for the defendant no.2; Mr.P.R. Patil, learned counsel for the defendant no.3 and Mr.R.N. Dhorde, learned Senior Counsel for the defendant no.4.
27] Mr.N.V. Gaware, learned counsel for the plaintiffs, in rejoinder, submits as under:-
A] Learned trial Judge has dismissed the suit as abated only on limited grounds and had not passed any decree on merits. This Court thus cannot consider the objections in this appeal on various other grounds and which were raised by the defendants in the written statement filed before the learned trial Judge at this stage in this appeal in support of their submissions that the said suit filed by the plaintiffs was even otherwise could not have been filed, was also not maintainable or deserved to be dismissed on merits.
B] In a suit for partition and possession, the share of each of the co-owner and co-heir was ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 84 already predetermined which would not have changed at any stage in the trial till its disposal. The plaintiffs had inherent right to seek partition and separate possession. The plaintiffs were not required to challenge the alienation or to challenge any other subsequent facts after filing of the suit.
C] The rights of the plaintiffs were denied by the defendants for the first time in the year 1996 and thus the suit was immediately filed. Two civil suits already filed inter-se between some of the co-heirs or persons claiming through them had been already referred in the plaint by the plaintiffs. The plaintiffs were not parties to the compromise decree in those suits and the said decree was thus not binding on the plaintiffs. D] The possession of the properties of Mr.Hamid Ali Khan was on behalf of all the co- owners and co-heirs and was not an exclusive possession on behalf of himself.
E] The application filed by some of the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 85 defendants for dismissal of the suit as abated was not made under any provisions of law and thus could not have been entertained by the learned trial Judge.
F] Principles of Hindu Law cannot be applied to the plaintiffs and defendant nos.1 to 12 who were Muslims and were governed by Mohammedan Law. The concept of co-
parcenery prevailing in Hindu Law does not apply to the Muslims who are governed by Mohammedan Law. The status of all such co- owners and co-heirs was of tenants in common. Reliance is once again placed on the judgment of Allahabad High Court in case of M.T. Zabaishi Begam Vs. Naziruddin Khan and others (AIR 1935 page 110) in support of the submission that share or interest of all the co-heirs or co- owners being Muslims was definite and does not change. Absence of any such heirs in the suit would not affect the suit in any manner whatsoever.
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First Appeal 269 of 2006 86 G] Appeal is continuation of the suit. All the co-heirs were not necessary parties to the suit being Mohammedan and thus were not necessary parties to the appeal. The principles applicable to the parties that the shares and interest of each of the co-heir and co-owner being definite and ascertained, apply also to the proceedings before this Court. The appeal thus cannot be dismissed as abated as sought to be canvassed by some of the defendants.
H] Even if the suit is restored and some of the legal heirs are not parties to the suit, the Court can still pass a decree against all the co-heirs. The share is fixed and ascertained. Those co- heirs or co-owners who were left out and were not impleaded in the suit, they can always claim their rights even subsequently.
I] Insofar as the submissions of the learned Senior Counsel for the defendant no.2 on the issue of partial partition is concerned, it is submitted that distinction is carved out between ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 87 Hindus and Mohammedans. The concept of partial partition applies only to Hindus. The concept of survivorship does not apply to Mohammedans. Partial partition is thus permissible. Reliance is placed on the decision of Madras High Court in case of Haji Mohamed Abdullah and others Vs. C. Abdul Rahiman and others (AIR 1964 Madras 234).
J] Decree of possession can be effected by the revenue authorities after such decree would have been passed by the learned trial Judge for decree of partition and for separate possession. There was no question of any inconsistent or conflicting decrees. No separate decree against individual defendants was required to be passed by the learned trial Judge.
K] Reliance is placed on the judgment of this Court in case of Vitthal Bapu Mane Vs. Balasaheb Sidhu Masal and others (2017(3) Mh.L.J. 232) and in particular paragraph no.8 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 88 in support of the submission that no separate declaration challenging the alienation of the properties in favour of third parties was required to be sought by the plaintiffs in the plaint originally or by carrying amendment to the plaint.
L] Some of the defendants did not contest the suit and became parties to the compromise decree. The law cannot permit the other parties to overpower the plaintiffs by tool of oppression and hence they could not be party to appeal. The notice was thus directed to be issued only against limited defendants. The defendants who were not served with notices also could have filed their separate appeal or could have filed cross-objections. Their names were deleted in the year 2005, whereas the civil application for impleadment was filed in the year 2011.
M] Insofar as Civil Application No.10445/2011 filed by the four applicants is concerned, no notice was served upon them by ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:18 ::: First Appeal 269 of 2006 89 the appellants and their names were deleted at the risk of the plaintiffs in the year 2005. No such civil application in the year 2011 by those four applicants thus could be filed by them before this Court and the same thus deserves to be dismissed.
N] The judgments relied upon by the learned counsel for the plaintiffs are distinguishable on the ground that even in respect of the parties being Muslim when Mahomedan Law applies, the general law relating to partition applies and thus those judgments would not assist the case of the plaintiffs. The judgment in case of Shahazada Bi Vs. Halimabi ( Since Dead) By Her Lrs. (supra) is distinguished on the ground that in that matter, the properties of each of the defendant was identified in the plaint and the portion of the property was ear-marked. In the facts of that case, the Supreme Court held that the abatement in respect of the particular defendant in respect of the definite share in ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 90 possession of that party, for not impleading the legal heirs of such party, the suit would abate only against such particular defendant and not in entirety. It is submitted that the facts are totally distinguishable with the facts of this case.
O] Provision of Order I Rule 9 of the Code of Civil Procedure has to be read with Order I Rule 13 of the Code of Civil Procedure. The objection has to be raised at the earliest. The subsequent events had occurred when Court passed an order against some of the defendants whose legal heirs were not brought on record. In these circumstances, the application made by some of the defendants for dismissal of the suit in entirety as abated for non-joinder of necessary parties was fully justifiable and maintainable.
P] The issues can be corrected or re-cast by the Court at any stage of the proceedings being a procedural part.
28] The questions that arise for consideration of this ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 91 Court in this First Appeal are:-
a) Whether in a Suit of partition and for recovery of possession of property filed by a Mohammedan, all the parties in possession of the Suit properties are necessary or proper parties and in absence of those parties not having been impleaded or if legal heirs of the deceased defendants are not impleaded (a) whether under Order XXII Rule 1 and 4 of the Code of Civil Procedure, 1908, entire Suit is abated or right to sue survives against the remaining defendants ?, (b) whether the appeal also can be dismissed as abated in entirety if necessary parties are not impleaded ?, (c) the question that also arises for consideration of this Court is that in view of the aforesaid admitted facts in earlier paragraphs of the order, whether decree, if any, which could have been passed by the Trial Court in the Suit filed by the plaintiffs for partition and recovery of possession is executable decree or it would be conflicting decree between some of the defendants inter-
se and the plaintiffs between some of the plaintiffs who had not challenged the decree passed by the learned ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 92 Trial Judge and the remaining plaintiffs. 29] Some of the admitted facts emerged from the record produced before this Court are as under:-
a) The plaintiffs had filed a Suit inter alia praying for partition of the properties prescribed in Schedule-A to the plaint and also for recovery of possession. Before filing of the Suit, substantial portion of the Suit properties had been already alienated by the original defendant No.1 Mr.Hamid Ali Khan in favour of several persons. The predecessor in title in respect of the said property died in the year 1915.
b] Defendant Nos.1 to 12 are the sons and married daughters of Mr.Hamid Ali Khan and Defendant Nos.13 to 15 are impleaded being grandsons of Mrs.Noor Bano.
C] It was the case of the plaintiffs that the entire management of the properties was jointly inherited and was looked after by Mr.Hamid Ali Khan for himself and also on behalf of his two sisters. Mr.Hamid Ali Khan held half share and two sisters each held one-fourth ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 93 share, according to the plaintiffs. It was the case of the plaintiffs that the said Mr.Hamid Ali Khan and his two sisters had undivided joint properties as co-owners thereof. The Suit was filed for partition and possession of the properties initially against the defendant Nos.1 to
12. d] The Trial Court re-casted issues, which were framed on 14.10.1999. Issue No.10 was "whether the Suit is bad for non-joinder of necessary parties?" On the application of some of the defendants for framing the preliminary issue of non-joinder of necessary parties on 01-03-2000, the learned Trial Judge framed a preliminary issue on 7.4.2000 as 'whether the Suit is incompetent for non-joinder of necessary parties'. The said order is admittedly not challenged by the plaintiffs. e] On 3.5.2010, the plaintiff filed an application in the Suit praying for time to implead necessary parties. The learned Trial Judge granted time to the plaintiffs upto 10.7.2000 to implead necessary parties. The plaintiffs filed and application for carrying out and amendment to add 252 defendants. The amendment ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 94 was thereafter carried out by the plaintiffs. The Bailiff submitted a report pointing out that some of the defendants are expired. The plaintiffs did not take any step for setting aside the amendment of the Suit against dead defendants.
f] The learned Trial Judge allowed the applications of some of the defendants to hear the issue of non-joinder of necessary parties. The plaintiffs applied for review of the said Order passed by the learned Trial Judge. The said application of the plaintiffs came to be dismissed on 5.4.2003. The said order was not challenged by the plaintiffs.
g) The learned Trial Judge thereafter, passed an order below Exh.1 on 16.7.2003 holding that the Suit suffered from non-joinder of necessary parties. The learned Trial Judge observed that large number of Plots forming part of the Suit properties were already sold by Mr.Hamid Ali Khan. There were instances of subsequent transfers of the said properties in favour of the various alienees, whose names are entered in the City Survey ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 95 Record. Around 100 Acres of land out of 135 Acres of land was in possession of the purchasers, who were not impleaded as parties to the Suit. The learned Trial Judge, however, took a liberal view and gave opportunity to the plaintiffs to implead subsequent transferees as party defendant, instead of dismissing the Suit on that ground.
h) The plaintiff made an application on 13.8.2003 for adding defendant Nos.270 to 828 before the Trial Court. The plaintiffs, however, thereafter, made an application on 11.9.2003 requesting for not passing any order on that application for two weeks. On 3.9.2003, though the plaintiffs had already carried out amendment to implead defendant Nos.16 to 271, the plaintiffs made an application for withdrawal of Suit against defendant Nos.16 onwards. The said application was opposed by the defendants. Some of the defendants have filed application for abatement of Suit in entirety on 20.10.2003. The learned Trial Judge dismissed the application filed by the plaintiffs seeking withdrawal of Suit for plaintiff Nos.16 onwards and allowed the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 96 application filed by some of the defendants praying for abatement of the Suit in entirety.
i] In this First Appeal, the plaintiffs filed an application for deletion of defendant Nos.16 to 271 from the array of the appeal. This Court allowed the said application for deletion and clarified that those deletion was at the risk of the plaintiffs. The plaintiff thereafter applied for deletion of defendant Nos.9 to 12 on 29.8.2005. This Court allowed the said application also. Defendant No.3 made an application for dismissal of First Appeal for non-joinder of necessary parties. j] The plaintiffs impleaded original plaintiff No.4(1) and 4(2) as respondent Nos.271(A) and 271(B) in the First Appeal. The Trial Judge had dismissed the Suit against all the plaintiffs including original plaintiff Nos.4(1) and 4(2). No appeals were filed by the original plaintiff Nos.4(1) and 4(2) against the Order of dismissal of the Suit nor any cross-objection came to be filed by them. By virtue of the application made by the plaintiffs to delete respondent Nos.16 to 271, those defendants are excluded from the present proceedings. The dismissal of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 97 Suit against original plaintiff Nos.4(A) and 4(B) has become final.
k] No notices of the First Appeal were issued to respondent Nos.6 to 12 in the application for condonation of delay at the instances of the plaintiffs. No notices of First Appeal were sought to be served upon defendant Nos.6 to 12, who were similarly situated as plaintiff Nos.4(1) and 4(2), who were co-shares. l] There was a compromise decree between plaintiffs and defendant Nos.1, 7, 13 to 15. The Suit against defendant Nos.1, 7, 13 to 15 accordingly came to an end. No amendment is sought to be carried out by the plaintiffs for modifying the prayers for deletion of the parties with whom a compromise decree took place. Till the Suit was dismissed by the learned Trial Judge as abated in entirety, the prayer in the plaint for partition of the entire property and recovery of possession continued. m] It is not in dispute that issues were already re-casted by the learned Trial Judge which include a issue 'whether the Suit is bad for non-joinder of necessary parties. The learned Trial Judge accordingly ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 98 passed an order to decide the said issue as a preliminary issue. The said order was not challenged by the plaintiffs. The Trial Court though passed an order holding that the Suit was not bad for non-joiner of necessary parties, gave an opportunity to the plaintiffs to apply for impleading those persons as parties to the Suit. The plaintiffs applied for time to carryout amendment and thereafter, actually carried out amendment and impleaded those parties.
n] Some of the defendants had pointed out that there were about more than 400 transactions. The plaintiffs applied for carrying out amendment and to bring large number of alienees as defendants. At that stage, the plaintiffs made an application to once again delete the defendant Nos.6 onwards till 271 from the plaint. Admittedly, some of the defendants, who were impleaded by the plaintiffs expired. The Trial Court also passed an order of abatement of Suit against those defendants, who were expired.
o] The defendants did not challenge the said order passed by the learned Trial Judge. The plaintiffs ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 99 though had applied for impleadment of defendant Nos.270 to 828 on 13.8.2003, subsequently made a fresh application for deletion of defendant Nos.16 onwards. Some of the defendant prays for dismissal of Suit in entirety on various grounds including the ground that some of the alienees had expired and all the alienees are not on record.
30] It is thus clear that the plaintiffs had availed of the liberty granted by the learned Trial Judge to implead the remaining alienees though had come to a conclusion that the Suit was bad for non-joiner of the parties. The plaintiffs, however, instead of carrying out an amendment, had applied for deletion of the defendant No.16 onwards till defendant No.271. 31] The learned counsel for the plaintiffs and the contesting defendants invited our attention to the various applications filed by the parties, various orders passed by the Trial Court and also by this Court in these proceedings and are relied upon large number of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 100 Judgments of various Courts for consideration of this Court. After considering the Judgments relied upon by the parties, following principles of law laid down by the various Courts can be culled out as under:-
i] If no separate claim was made against any of the defendants, a joint claim, which was made in the plaint for a permanent injunction, the appeal stand abated as a whole under Order XXII Rule 4 of the Code of Civil Procedure, 1908.
ii] The question of representation does not arise when different persons inherit property in different specified shares. As long as partition is not effected, there is an undivided specified share of all the heirs, both in Hindus and Muslims, in respect of entire property and there is nothing peculiar about the Muslim inheritance.
iii] If the decree has become final in respect to the same subject matter betweens some of the parties, death of one of the respondents in case of partition decree, entire appeal would be abated since in view of the fact that passing of the decree in favour of the appellants ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 101 would be contradictory to the decree, which had become final with respect to same subject matter between them and the deceased.
iv] When the success of the appeal may lead to the Court's coming to a decision, which would be in conflict with the decision between the appellant and the deceased respondent, and therefore, would lead the Court's passing a decrees, which will be contradictory to the decree, which had become final with respect to the same subject matter between the appellants and the deceased respondent v] When the appellants could not have brought the action for the necessary relief against those respondents alone, who are still before the Court or when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say, it could not be successfully executed, the entire appeal would stand abated and not only against the deceased respondents, whose legal heirs were not brought on record. The appellant Court cannot in such a situation modify that decree directly or indirectly.
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First Appeal 269 of 2006 102 vi] When the decree in favour of the respondents is joint and indivisible, the appeal against the deceased respondent can be proceeded with, if the appeal against the deceased respondent is abated. If the aforesaid test are not satisfied, the appeal has to be dismissed as abated. The aforesaid tests laid down by the Supreme Court in case of State of Punjab Vs. Nathurao, AIR 1962 SC, 89 are not cumulative tests and thus, if one of them is satisfied, the Court may hold that the appeal is abated in its entirety.
Vii} When the success of the appeal may lead to the Court's coming to a decision, which may be in conflict with decision between the appellant and deceased respondent, which will lead to Court's passing a decree, which may be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent in the same case, the appeal may abate as a whole in such a situation.
viii] Existence of a joint right as distinguished ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 103 from tenancy-in-common alone is not the criteria but the joint character of the decree de hors relationship of the parties inter-se and the frame of the appeal will take colour from the nature of the decree challenged. The entire proceeding will stand abated in case of non- impleadment of necessary party to the appeal. If any relief is granted and decree is ultimately passed would become total unenforceable, self-destructive and unworkable vis-a-vis. the other part which had become final, the appeal has to be declared abated in toto. It is the duty of the Court to preserve the right of the parties. ix] Every co-owner has a right to enjoy equal share that of the other co-owners. A co-owner of the property had share in every part of the composite property along with others and he cannot held to be fractional owner of the party unless partition takes place.
x] Where each one of the parties has an independent and distinct right of his own, not inter- dependent upon one or the other, nor the parties affecting interest inter-se, the appeal may abate only qua the deceased respondent. However, in the case there is ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 104 possibility that the Court may pass a contradictory decree in favour of the deceased party, the appeal would abate in toto for the simple reason that appeal is continuity of the Suit and the law does not permit two contradictory decrees in the same Suit. xi] When the decree is single and indivisible, there cannot be inconsistent decrees as against deceased respondent and contesting surviving respondents. xii] If the interests of the co-defendant are separate as in case of co-owner, the Suit will abate as regards particular interest of the party. If the case is of such a nature that the absence of legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. If the appeal is allowed to proceed in such a situation against remaining respondents, there would be two contradictory decrees about the same properties and thus to avoid conflicting decrees, the Court has to dismiss the appeal as a whole. xiii] Existence of joint right as distinguished from tenancy in common alone is not a criteria but the joint ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 105 character of the decree de hors relationship of the parties inter-se and the frame of the appeal will take colour from the nature of the decree challenged. A decree can be said to be a inconsistent or contradictory only when two decrees are incapable of enforcement and that enforcement of one negate the enforcement of the other.
xiv] Court cannot pass a decree granting reliefs to the plaintiff without prejudicially affecting the right of the co-parcener, who is not party to the Suit and as such the Court cannot, but dismiss the Suit.
xv] A share acquired by the heirs of the deceased Mohammedan in his property are always definite, distinct and ascertained and as such, the absence of one of the co-heirs from a Suit brought by another co-heir for possession of his share, cannot be a ground for dismissing the Suit.
xvi] In Mohammedan law, the doctrine of partial partition is not applicable because the heirs are tenants- in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 :::
First Appeal 269 of 2006 106 The share of heirs under Muslim Law are definite and are known before actual partition.
xvii] Even if the presence of the third party applicants would be necessary for complete and final adjudication of the question involved in the case, impleadment of such party would be necessary and in absence thereof, the Suit would be bad for non-joinder of the parties.
32] We shall now consider as to which of the principles laid down by the various Courts, which are culled out in the earlier paragraphs of this Judgment would apply to the facts of this case.
33] It is not in dispute that plaintiffs had initially impleaded only the co-heirs and co-owners of the properties, which according to the plaintiffs were entitled to specific share in the Suit property. It is also not in dispute that even before filing of the Suit by the plaintiffs for seeking the partition and recovery of possession, large portion of the properties had been already sold by one of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 107 the co-heirs. The plaintiffs themselves had impleaded the alienees, in respect of some of those properties transferred, to the Suit being necessary parties. It was the case of the plaintiffs themselves that those alienees would be necessary parties to the Suit and had applied for their impleadment accordingly.
34] Some of such alienees, however, were not brought on record. In our view, the plaintiffs having been proceeded on the premise that such alienees would be necessary and/or proper appropriate parties to the Suit for partition and recovery of possession, the plaintiffs could not have filed an application for deletion of the alienees from the plaint. The plaintiffs took advantage of the order passed by the learned Trial Judge by availing an opportunity to implead the alienees as necessary parties and did not allow the Trial Court to dismiss the Suit for want of impleadment of necessary parties.
35] The plaintiffs also did not take any steps to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 108 apply for setting aside the order of abatement against some of the alienees, who were impleaded as defendants by the plaintiffs. In these circumstances, the learned Trial Judge was right in dismissing the application filed by the plaintiffs for deletion of the defendant Nos.16 onwards from the plaint and in allowing the applications filed by some of the defendants inter alia, praying for dismissal of entire Suit as abated.
36] It is not in dispute that before the Trial Court the Suit was compromised between the plaintiffs and some of the defendants in respect of the some of the properties, which were subject matter of the Suit. It is also not in dispute that the substantial part of the properties was already in possession of third parties. The plaintiffs did not carry out any amendment to the plaint, though there was a compromise decree between the plaintiffs and some of the defendants in respect of part of the Suit properties and the plaintiffs continued to pray the relief for recovery of possession of the Suit properties from all the defendants, alienees and those ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 109 defendants with whom the plaintiffs had compromised the Suit in respect of some of the properties. 37] The alienees who had vested interest in those properties and most of them were already impleaded initially. The plaintiffs could not have taken a contradictory stand by first impleading alienees as defendants as necessary parties and thereafter for making an application for deleting all those parties from the array of the Suit.
38] In our view, in absence of impleadment of the other alienees in the Suit for partition and for recovery of possession and also in view of the fact that the parties, who had compromised the Suit with the plaintiffs in respect of part of the Suit properties, the plaintiffs not bringing legal heirs of the deceased alienees, the plaintiffs not having amended the subject matter of the Suit including the prayer, the learned Trial Judge in these circumstances, could not have passed an executable decree for possession against all the parties to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 110 the Suit in respect of the entire properties. 39] Though the plaintiffs had prayed for a specified share in the properties, the shares of the plaintiffs and the defendants prescribed in the Suit were admittedly not admitted by the defendants. The dispute about the shares thus existed between the parties. In the written statement filed by the co-heirs, the co-heirs had also not only disputed the entitlement of the plaintiffs to seek any relief, but also claimed title in respect of the properties independently by setting up claim of adverse possession.
40] It is thus clear that Suit filed by the plaintiffs was not a Suit simplicitor for declaration of their share in the Suit property, but was a Suit for physical partition of the Suit properties and for recovery of possession. These prayers sought in the plaint were inseperable and indivisible. The share of the plaintiffs and the defendants were disputed in the Suit and were required to be adjudicated upon. The intervening rights created ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 111 in favour of the third parties, who had purchased the properties for valuable consideration, are prior to even filing of the Suit by the plaintiffs, also was required to be adjudicated upon before passing any decree for recovery of possession.
41] In our view, no decree for recovery of possession could have been passed against the third parties, who were in possession and were not on record already on record as defendants or though some of them were brought on record were deleted in appeal. The plaintiffs were knowing well that those third parties, who were in possession of the said properties, their impleadment in the Suit for recovery of possession was necessary. No effective decree thus could have been passed by the Trial Court in the absence of such parties. 42] A perusal of the record further indicates that the plaintiffs themselves had admitted in their pleading that impleadment of all the alienees to the Suit was mandatory and had infact applied for their impleadment. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 :::
First Appeal 269 of 2006 112 The applicants thus could not have been allowed to take a different stand in the matter after already having carried out the amendment by impleading more than 200 defendants alienees and after making applications for impleadment of remaining alienees also. The plaintiffs could not be allowed to blow hot and cold at the same time.
43] A perusal of the record further indicates that the plaintiffs are claiming share in the property through Mr.Mehboob Ali Khan, who admittedly expired in 1915. Even according to the plaintiffs succession had thus opened in respect of those properties in the year 1915. The plaintiffs filed the Suit only in the year 1996. The entire assets of the said deceased are not before the Court. In our view, the Suit thus itself was not instituted properly. Admittedly, two of the daughters of Mr.Mehboob Ali Khan had filed a separate Suit against Mr.Hameed Ali Khan. There were various litigations admittedly amongst the defendants also. Some of such litigants are also referred in the plaint. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 :::
First Appeal 269 of 2006 113 44] Mr.Hameed Ali had four sons and seven daughters. Even according to the plaintiffs, defendant Nos.1 to 12 had half share in the Suit property and the plaintiffs together had the remaining half share. The plaintiffs had not proceeded against defendant Nos.1 and 7 in view of the compromise decree and having resolved the dispute out of the Court. The properties are in respect of which Suit is already compromised with some of the defendants are not available for partition. 45] The defendant No.1 had himself sold 68
properties, the details of which were already mentioned in the plaint. Some of the transactions are very old transactions as apparent from the details of the transfers annexed to the plaint. The plaintiffs had given an undertaking to the Court to implead the alienees to pre- empt dismissal of Suit. Suit was thus not dismissed at that stage by the trial Court.
46] A perusal of the record further indicates that original plaintiff No.4, who was daughter of Mrs.Noor ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 114 Bano had expired. Her legal heirs were brought on record in the plaint. In the First Appeal, however, only Mrs.Anjum Jahanara was impleaded as the appellant No.4.(i) Plaintiffs Nos.4.(i) and 4.(ii) are not impleaded as the appellants, but have been impleaded as respondent Nos.270(a) and 270(b).
47] The plaintiff applied for condonation of delay in filing this First Appeal. The notices in the civil applications were sought to be issued in the First Appeal to defendants Nos.2 to 5 for the purpose of condonation of delay. No notices were issued to defendant Nos.6 to 12, who were parties to the Suit as well as to this First Appeal. The application for condonation of delay was not addressed against defendant Nos.6 to 12 and thus, the First Appeal stood dismissed against defendants Nos.6 to 12, who were situated similarly as defendant Nos.4 & 5 and also co-owners and co-heirs.
48] In the plaint, the plaintiffs had themselves made averments that the defendant Nos.6 to 12 had ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 115 undivided share in the Suit property. In our view, the share of the defendant Nos.6 to 12 are accordingly excluded from the litigation. The original plaintiff Nos.4[i] and 4[ii], who were not impleaded as appellants and who have been impleaded as respondents, the share claimed by them in the Suit also stand excluded from the purview of the Suit, they not having challenged the decree passed by the trial Court.
49] The Division Bench of this Court allowed deletion of the names of defendant Nos.16 to 271 from the array of the defendants on the applications of the plaintiffs at their own risk. In these circumstances, it is clear beyond the reasonable doubt that some of the parties, who were parties to the Suit, are not impleaded in the First Appeal, whereas some of the parties to the Suit, who were required to be impleaded as plaintiffs, are impleaded as defendants. Thus, these plaintiffs have not filed any separate First Appeal or cross-objection in this appeal. The plaintiffs are pressing for setting aside the entire decree passed by the learned Trial Judge ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 116 dismissing the Suit as abated in entirety. 50] By virtue of the plaintiffs, not impleading all the defendants against whom a decree for partition and recovery of possession was sought before the Trial Court are not parties to this appeal. The decree passed in their favour by the Trial Court has thus attained finality. There was no physical partition of the Suit properties. The case of the plaintiffs themselves was that each of the co-heir and co-owner was entitled to specific undivided share in the joint properties forming part of the Suit property.
51] In these circumstances, the First Appeal, which is continuation of the Suit, also become fundamentally defective and thus, any decree even if passed by this Court in these circumstances in favour of the plaintiffs would not only be a unexecutable and inoperative decree, but such decree would be conflicting decree between original plaintiffs inter-se and between plaintiffs and the co-heirs and co-owners on the other ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 117 hand. In our view, in these circumstances, the learned Trial Judge was right in dismissing the entire Suit as abated and not only against the defendants, who had expired and whose legal heirs were not brought on record by the plaintiffs.
52] In our view, the learned Judge thus could not have passed a decree in absence of the necessary parties including the alienees and the legal heirs of some of the alienees, who had expired. Simultaneously, this Court in this First Appeal also cannot pass any conflicting and unexecutable decree. In these circumstances, this Court cannot grant any relief in favour of the plaintiffs by setting aside the impugned decree passed by the learned Trial Judge dismissing the entire Suit as abated and to pass a fresh decree in the Suit.
53] The Suit was already dismissed against the plaintiffs including plaintiff Nos.4(1) an 4(2). The defendant Nos.16 to 271 also were deleted by the plaintiffs from the array of this appeal and thus no ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 118 decree can be passed by this Court against such parties, who were parties to the Suit but are not parties to this appeal and also against those parties, who were sought to be impleaded as parties as defendants being other alienees forming part of the Suit properties and were not impleaded by the parties on the erroneous premise. The principles of law culled out from various judgments of the Supreme Court and this Court, referred to aforesaid, would apply to the facts of this case.
54] In so far as submission of the learned counsel for the plaintiffs that in case of the Muslims, their shares are definite, certain and is predetermined is concerned, there is no dispute about this proposition of the law. However, in the facts of this case, the shares and entitlement of the plaintiffs are disputed by other co- owners and co-heirs on various grounds including a separate claim of ownership by way of adverse possession set up by the defendants against the plaintiffs. The plaintiffs themselves having compromised the Suit with some of the defendants, which properties ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 119 stood excluded according to the plaintiffs from the Suit, no decree can be passed in respect of those properties by the Trial Court.
55] In our view, even in case of Muslims, in so far as partition of the properties is concerned, the general law applies for partition and distribution of properties. We are thus, not inclined to accept the submission of the learned counsel for the plaintiffs that even co-heir or co- owner were not necessary parties to the Suit for partition and recovery of possession nor any alienees are either necessary or proper parties to the Suit. 56] In our view, there is no substance in the submission of the learned counsel for the plaintiffs that alienees would have independent claim against the vendors of the properties are even though such properties forming part of the Suit property and thus were neither necessary nor proper parties to the Suit. 57] It is not in dispute that the plaintiffs have ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 120 prayed for recovery of possession of the entire property. Therefore parties, who are in possession of the property to the knowledge of the plaintiffs are necessary or at least proper parties to the Suit. We are not inclined to accept the submission of the learned counsel for the plaintiff that right title or interest of alienees or their legal heirs can be decided at the stage of execution of the proceedings and thus, there presence in the Suit was not necessary. In our view, this submission of the learned counsel for the plaintiffs is contrary to the stand taken by them before the trial Court to the effect that all these alienees were necessary and proper parties and based on such contention, an application for their impleadment was made by the plaintiffs themselves at the initial stage. 58]In our view, there is no merit in the submission of the learned counsel for the plaintiffs that in this situation and considering the nature of dispute and the prayers sought in the plaint, the Suit could have been at the most dismissed by the learned Trial judge only against the defendants, who had expired and whose legal heirs ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:19 ::: First Appeal 269 of 2006 121 were not brought on record and not in entirety. 59] Even if this Court accept the submission of the learned counsel for the plaintiffs that the impugned order and decree passed by the learned Trial Judge deserves to be set aside with the modification that the Suit can be dismissed only against such defendants, whose legal heirs are not brought on record, in our view since decree against some of the defendants have attained finality by virtue of the plaintiffs having deleted their names in this First Appeal, even if, the decree passed by the learned Trial Judge is set aside, this Court or the learned Trial Judge would not have power and jurisdiction to pass a decree against such defendants against whom a decree of dismissal of Suit has attained finality.
60] The number of Judgments relied upon by the learned counsel for the plaintiffs are rightly distinguished by Mr.P.M.Shah, learned senior counsel for the defendant no.2 and Mr.R.N.Dhorde, learned senior ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 122 counsel for defendant No.4 on the ground that the facts before the Courts in those Judgments were totally different. In our view, none of the Judgment relied upon by the plaintiffs would assist the case of the plaintiffs and are clearly distinguishable in the facts of this case. 61] In our view, if the impugned decree passed by the learned Trial Judge is set aside as prayed by the learned counsel for the plaintiffs, there may be conflicting decrees against the parties in whose favour the decree is passed by the learned Trial Judge has attained finality. In our view, thus appeal suffers from defects of fundamental nature. Though the plaintiffs had impleaded the alienees, who were parties before the Trial Judge, in the First Appeal, all such alienees were deleted from the array of the appeal at the risk of the plaintiffs. Some of the co-heirs and co-owners are also stood deleted in view of the notices not having been issued to them at the behest of the plaintiffs in the application for condonation of delay. This Court thus cannot pass any decree, which would be unexecutable, inoperative, and ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 123 would be a conflicting decree. In these circumstances, the provisions of Order XXII Rule 4 of the Civil Procedure Code would apply to the facts of the case and thus, the entire appeal also would stand abated against all the defendants.
62] In so far as reliance placed on the judgment on Supreme Court in case of Syed Shah Ghulam Ghouse Mohiuddin (supra) by the learned Counsel for the appellants is concerned, in our view, this judgment of the Supreme Court would not assist the case of the appellants for the reason that the shares of the appellants as well as respondent Nos.1 to 12 set out in the plaint as well as entitlement of the plaintiffs to share in the property itself is disputed by defendant Nos.1 to 12, which was required to be adjudicated upon in the suit. Similarly, in so far as the judgment of this Court in the case of Abbas Abdul Mhaiter and others, judgment of Jammu and Kashmir High Court in the case of Khazir Bhat, judgment of Madras High Court in the case of Hazi ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 124 Mohamed Abdullah and others and judgment of Rajasthan High Court in the case of Mohammad Subhan (supra) are concerned, the said judgments would also not assist the case of plaintiffs for the similar reason. 63] The judgment of Privy Council in the case of Mt. Zabaishi Begum (supra) would not assist the case of plaintiffs on the ground that the said judgment is delivered prior to amendment in Order I Rule 10 of the Code of Civil Procedure and also on the ground that since the decree in the facts and circumstances of this case would not have been an executable decree and would have been a conflicting decree. 64] In so far as the judgment of Supreme Court in the case of Beharilal (supra) relied upon by the learned Counsel for the plaintiffs in support of the submission that since the issues were already framed under Order XIV Rule 2 of the Code of Civil Procedure, 1908 including the issue whether the suit was bad for non-joinder of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 125 necessary parties and evidence was likely to start in the matter is concerned, under Order XIV Rule 5 of the Code of Civil Procedure, 1908, the Court is empowered to amend and strike out the issues at any stage. Be that as it may, the application filed by some of the defendants to frame issue as to whether the suit was bad for non- joinder of necessary party was allowed. The said order was not challenged by the plaintiffs. 65] The learned trial Judge thereafter proceeded to decide the said issue and had held that the suit was bad for non-joinder of necessary parties. However, before passing any final order on the said application, gave an opportunity to the plaintiffs to amend the suit by impleading the alienees. The plaintiffs availed of that opportunity and made an application for impleadment of those alienees as defendants. It was specifically averred by the plaintiffs that those alienees would be the necessary parties. The final order passed by the learned trial Judge allowing the plaintiffs to carry out the amendment at their request was admittedly not ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 126 challenged by the plaintiffs. Plaintiffs thus cannot be allowed now to urge that the learned trial Judge could not have decided the issue as to whether the suit was bad for non-joinder of necessary parties after framing of all the issues.
66] We are not inclined to accept the submission of the learned Counsel for the plaintiffs that since the alienees themselves were not necessary parties to the suit, the legal heirs of some of the alienees who had expired during pendency of the suit, are also not necessary parties under Order I Rule 10 (2) of the Code of Civil Procedure, 1908 and thus on that ground itself the learned trial Judge would not have dismissed the suit as abated in entirety. In our view, the alienees are the necessary and/or proper parties to the suit in view of specific prayers of the plaintiffs for recovery of possession and partition in respect of the suit properties most of which properties were in possession of the alienees. The said issue decided by the learned trial Judge in the application filed by some of the defendants, pursuant to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 127 which the plaintiffs had already impleaded those alienees as parties, the said order attained finality and had been implemented.
67] It is a matter of record that the plaintiffs also filed an application for impleadment of remaining alienees also as parties defendants to the suit. The argument advanced by the learned Counsel for the plaintiffs is thus contrary to the earlier orders passed by the learned trial Judge, which had attained finality. The judgment of this Court in the case of Waman Nagu Chaudhari (supra) would thus not assist the case of plaintiffs.
68] In so far as the judgment of this Court in the case of Vitthal Bapu Mane (supra) relied upon by the learned Counsel for the plaintiffs is concerned, in our view, the facts before this Court in the said judgment were totally different. Since the plaintiffs had applied for recovery of possession in respect of the suit properties, ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 128 which were in possession of several alienees to the knowledge of the plaintiffs, all such transfers of the property had taken place even prior to the date of filing of the suit, such alienees were necessary and proper parties.
69] Even if the plaintiffs did not desire to seek specific declaration for setting aside the alienation in favour of purchaser, in view of the plaintiffs seeking a prayer for recovery of possession from such alienees, their impleadment as parties defendants was necessary. The judgment of this Court thus in case of Vitthal Mane (supra) would not assist the case of plaintiffs. 70] In so far as the issue of limitation raised by learned senior counsel for defendant No.2 and also the plea of adverse possession raised by some of the defendants in the written statement and submission that the learned trial Judge could have dismissed the suit also on such and other grounds raised in the written statement is concerned, we do not propose to deal with ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 129 these submissions on the ground that trial Court has not dismissed the said suit on these grounds. 71] In so far as the submission of learned Counsel for the plaintiffs that the application filed by some of the defendants for dismissal of the suit was not under any specific provision of the Code of Civil Procedure is concerned, there is no merit in this submission of the learned Counsel for the plaintiffs. The Court has inherent powers under Section 151 of the Code of Civil Procedure, 1908 to deal with such application to dismiss the suit for want of necessary parties.
72] In so far as the submission of learned Counsel for the plaintiffs that the plaintiffs and defendant Nos.1 to 12 being Muslims and were governed by Mohameddan Law, the concept of coparcenary applicable under Hindu Law does not apply to the Muslims is concerned, there is no dispute about this proposition of law. However, when the shares of the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 130 parties are disputed for various reasons including their entitlement, such issues were required to be adjudicated upon by the trial Court and upon arriving at a conclusion that the parties were entitled to a particular share in the property, the general law applicable for partition of properties would have applied which is common to all, including Muslims. The judgment of Madras High Court in the Case of MT. Zabaishi Begum (supra) thus would not assist the case of plaintiffs. 73] In so far as the submission of learned Counsel for the plaintiffs that the decree of possession can be effected by the Revenue Authorities after such decree would have been passed by the learned Judge for decree of partition and possession and thus there would not have been any inconsistent or conflicting decrees is concerned, in our view, this submission of the learned Counsel has no merit. The right, title and interest of the alienees could be decided only in the suit filed by the plaintiffs and such issues could not have been decided by the Revenue Authorities while enforcing the decree of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:43:20 ::: First Appeal 269 of 2006 131 partition.
74] We do not find any infirmity in the decree passed by the learned Trial Judge and thus, are not inclined to grant any relief to the plaintiffs in this First Appeal. We, therefore, pass the following order:-
ORDER (I) First Appeal No.269 of 2006 is dismissed.
(II) Civil Applications pending if any in this
appeal, are disposed of in view of the
dismissal of the First Appeal.
(III) There shall be no order as to costs.
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
Ysk/
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