Amin Khan (Deceased) and Others vs Razzab Khan (Deceased) and Others

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the appellant at the admission stage.

This appeal has been filed by defendant no.3 of O.S. no.64 of 1985 which was filed by Hussain Khan since deceased and survived by respondent no.1/1 to 1/6 for partition of his 2/9 share. The suit was decreed by Munsif East Balia on 3.12.1992. Counter claim of defendant no.23/1 to 23/9 was also decreed and it was declared that they had 1/27 share in the property in dispute. Initially the suit was filed for partition of two properties shown in Schedule A and B to the plaint. However, through amendment in the year 1989 another property shown in schedule C was added.

No party filed any appeal regarding properties of schedules no. A and B, only defendant nos. 2 and 3 i.e. Amin Khan and Mangru Khan filed appeal against the decree passed by the trial court. Both Amin Khan and Mangru Khan were sons of Liyaqat Khan. During pendeny of appeal before lower appellate court (Civil appeal no.11 of 1993) Amin Khan filed an application supported by affidavit that he had not filed the appeal and the memorandum of appeal and Vakalatnama did not bear his signatures. It was for this reason that after his death his legal representatives were not substituted. The appeal was treated by the lower appellate court only on behalf of Mangru Khan who had also died during pendency of appeal before the lower appellate court and was substituted by his son Abrar Ahmad Khan who is appellant in this Second appeal.

In respect of the house shown in the Schedule C initially the case of Mangru Khan and Amin Khan was that they were exclusive owners of the same and it was described as Zanan Khana (part of the house where ladies of the family reside). Earlier also litigation had taken place in the year 1939 regarding the properties in dispute. In the suit giving rise to the instant appeal Court amin had been directed to inspect the spot and submit report. The amin after inspection had submitted the report along with map. Both the courts below after comparison of the map in the suit of 1939 and the amin map filed in the suit giving rise to the instant Second Appeal held that house shown in Schedule C belonged to the common ancestors of the parties. Both the courts below further held that defendant nos. 2 and 3 could not prove that the house belonged to them exclusively and they could not show that how and when they acquired the same. Lower appellate court also mentioned that the fact that Amin Khan, real brother of Mangru Khan had submitted to the decree passed by the trial court in respect of house shown in Schedule C was a very strong circumstance to show that the said house did not belong to Amin Khan and Mangru Khan otherwise there was no question of Amin Khan giving up his right.

The number of the earlier suit was O.S. no.216 of 1939. In the said suit Abdul Khan had filed a map. Abdul Khan was real brother of Akbar Khan who was father of Husain Khan plaintiff and Liyakat father of defendant nos. 2 and 3.Abdul Khan died unmarried hence his share was also inherited by Akbar Khan. As Annexures 4 and 5 to the affidavit filed in support of stay application in this appeal both the maps have been filed. On comparison of the maps the inference drawn by both the courts below appears to be quite correct.

Accordingly, I do not find least error in the findings of the courts below that property shown under Schedule C of the plaint also belonged to the common ancestors of the parties. The mere fact that it was added in 1989 through amendment in the plaint will not make much difference. The argument that the court inspected the site in 1985 i.e. before amendment in the plaint will not make much difference as comparison of the two maps i.e. of 1939 and 1985 clearly shows that the land shown under Schedule C belonged to the common ancestors. In the Court amin''s map towards west of disputed property (till that time) a portion was shown by digits 6 -6 -7 -7'' and in the map of O.S. no.216 of 1939 that portion was shown by latters 1-5-7-8 towards west of land of Abdul Khan. This land of Abdul Khan as shown in the map of O.S. no.216 of 1939 was shown by digits 1-2-6-6 and mentioned as disputed sahan in the map of 1985. Accordingly, the inference was more than warranted. I do not find any error in the impugned findings. Second appeal is dismissed under Order 41 Rule 11 C.P.C.