Md. Jalaluddin vs Md. Mustafa

The petitioner, appellant in Title Appeal No. 25 of 2009, is aggrieved of rejection of his application filed under Section 75(b) and 75(c) read with

Order XLI Rule 23 CPC for framing additional issue - “Whether any of the heirs of recorded tenant of Hassan Ali was an evacuee under Section

2(D) of Administration of Evacuee Property Act, 1950?â€​.

Title Suit No. 7 of 1997 was instituted by the petitioner for a decree for declaration that the suit property is the joint family property of the plaintiff

and defendant no. 1 and for a decree for partition to the extent of half share for the plaintiff in the suit property. Subsequently amendment in the plaint

was permitted and certain paragraphs were deleted/modified. Initially, in paragraph no. 5 of the plaint the plaintiff pleaded that the entire suit property

was joint in occupation, however, instead of 1/3rd share of Gulzar Ali entire suit property was put on auction and the defendant no. 1-Md. Mustafa

purchased the same in his name. Through amendment the plaintiff has inserted that, “but in the sale certificate the evacuee property has been

recorded in the name of Gulzar Aliâ€​.

In the suit, following issues were settled by the trial court:

(1) Is the suit maintainable in present form ?

(2) Whether the plaintiff has any cause of action to sue thesuit ?

(3) Is the suit barred by law of Limitation ?

(4) Whether the suit property is joint and coming on jointownership of both parties ?

(5) Has the order and decree passed by A.D.J.I Sahibganjin T.A. No. 75/73 obtained fraudulently and is illegal, void and not binding on the plaintiff ?

(6) Whether the plaintiff is entitled to get reliefs claimed ?

(7) To what other relief or reliefs the plaintiff is entitledto ?

During the trial the plaintiff examined 3 witnesses and the defendants have also examined 3 witnesses besides producing as many as 32 documents.

After a full-fledged trial the suit was dismissed on contest. The plaintiff thereafter filed Title Appeal No. 25 of 2009, in the pending appeal the

aforesaid application for framing an additional issue and for remanding the suit under Order XLI Rule 23 CPC was filed which has been dismissed by

the appellate court vide impugned order dated 16.06.2012. Contending that the appellate court while dismissing the aforesaid application has

committed patent error of record when it has recorded a finding that plaintiff has admitted that the entire suit property was declared evacuee

property and the defendant no. 1-Md. Mustafa has purchased the same in public auction, the learned Senior counsel for the petitioner submits that not

only the application for framing additional issue has been rejected illegally by the appellate court, the aforesaid finding would prejudice the appellant in

Title Appeal No. 25 of 2009.

As noticed above, the plaintiff has no doubt admitted that the defendant no. 1-Md. Mustafa has purchased the evacuee property in an auction sale,

however, the plaintiff has asserted that only 1/3rd of the suit property was the evacuee property and not the entire property. In the Title Suit No. 7 of

1997 the trial judge has declared that the entire suit property was not the joint property of the plaintiff and the defendant no. 1. Evidently, the plea

taken by the petitioner is on merits of the matter. The trial court has returned a finding on appreciation of the evidence led by the parties and on that

count no additional issue is required to be framed. In the impugned order dated 16.06.2012, in the penultimate paragraph where the appellate court has

recorded that, “it has been admitted that the property is declared evacueeâ€, the expression “entire†is missing and while so, anxiety of the

petitioner that the appellate court has held that entire suit property is evacuee property is misplaced. Moreover, the aforesaid issue would be finally

decided in the pending appeal. 6. In the above facts, finding no infirmity in the impugned order dated 16.06.2012 the writ petition is dismissed.

Interim order dated 27.08.2012 stands vacated.

Let a copy of the order be transmitted to the trial court through Fax.