Shakir Khan (Since Deceased) And 4 ... vs Jahid Khan And 3 Others
2022 Latest Caselaw 417 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                Reserved On:- 10.03.2022 
 
   Delivered On:- 04.04.2022 
 
Case :- MATTERS UNDER ARTICLE 227 No. - 2571 of 2020
 
Petitioner :- Shakir Khan (Since Deceased) And 4 Others
 
Respondent :- Jahid Khan And 3 Others
 
Counsel for Petitioner :- Vipul Kumar Dubey,P.K. Upadhyay
 
Counsel for Respondent :- Arvind Srivastava Iii,Arvind Srivastava Iii
 

 
Hon'ble Siddharth, J.

1. Heard Sri P. K. Upadhyay, learned counsel for the petitioners and Sri Arvind Srivastava, III, learned counsel for the respondents.

2. This petition has been filed under Article 227 of the Constitution of India praying for setting aside the judgment and order dated 16.03.2020 passed by the District Judge, Rampur, in Civil Revision No. 25 of 2019 (Jahid Khan and others vs. Shakir Khan and others) whereby the proceedings of Original Suit No. 131 of 2001 have been abated.

3. The plaintiffs-petitioners instituted an Original Suit No. 131 of 2001 before the Civil Judge (Junior Division), Rampur, praying for decree of of eviction of the defendants from the property in dispute and further decree of permanent injunction too. The defendants filed their written statement on 17.01.2002 and an order of temporary injunction was passed by the trial court after hearing the parties on 15.04.2002. After framing of issues on 17.12.2013 the suit was posted for evidence of the parties. Another Original Suit No. 280 of 2012 was also instituted by the plaintiffs-petitioners praying for a decree of cancellation of sale deed which was connected with the Original Suit No. 131 of 2001.

4. During the pendency of Original Suit No. 131 of 2001, the plaintiff no. 1, Shakir Khan, died on 23.06.2010 and in his place the petitioner no. 1/1 to ¼ were substituted as his legal heirs and representatives in the suit. The plaintiff no. 2, Afsar Khan subsequently died on 30.04.2013 but no substitution application was filed for bringing on record his legal heirs. The defendants filed an abatement application on 14.01.2019 praying for dismissing the Original Suit No. 131 of 2001 as abated, which was objected by the plaintiff-petitioner on 28.01.2019 and by the order dated 25.05.2019 the trial court rejected the abatement application filed by the defendants-respondents. The defendants-respondents preferred Civil Revision No. 25 of 2019 against the order dated 25.05.2019 passed by the trial court which has been allowed by the order dated 16.03.2020 and the Original Suit No. 131 of 2001 instituted by the plaintiffs has been dismissed as abated, hence this petition.

5. Learned counsel for the plaintiffs-petitioners has submitted that the revisional court has committed patent illegality in dismissing the suit as abated. He has submitted that during the pendency of suit an application 151-C was filed by the legal heirs of plaintiff no. 2 for withdrawal of the suit on their behalf which was dismissed on 20.05.2015 since they were not parties to the suit. He has submitted that the plaintiff no. 2 was not the co-owner of the suit property and therefore the rights of the legal heirs of plaintiff no. 1 was distinct and the suit should have been permitted to proceed on their behalf. He has submitted that finding of the revisional court that there is joint claim in the plaint and the non-substitution of heirs of plaintiff no. 2 would be fatal to the suit is incorrect.

6. Learned counsel for the defendants-respondents has relied upon the judgment of the Apex Court in the case of Hemareddi vs. Ramachandra Yallappa Hosmani and others, 2019 AIR SC 3297, where the Apex Court has held that where the appellants had joint right, abatement of appeal against one appellant will lead to abatement of appeal as a whole. He has further relied upon the judgment of the Apex Court in the case of State of Punjab vs. Nathu Ram 1962 AIR (SC) 89, wherein the Apex Court has held that where the land was acquired jointly by two brothers, compensation was also jointly awarded, abatement of appeal against one respondent not proper. The appeal would abate as a whole.

7. After hearing the rival submissions, this court finds that the revisional court has recorded the finding that as per plaint averments that one Zakir Ali Khan was employed in police and he executed sale deed dated 23.09.1953 in favour of the plaintiff no. 1 and plaintiff no. 2 and their mother, Smt. Batul Begum. Habib Ahmad Khan used to live with the plaintiffs and their father, Chuttan Khan, in the same house and he used to look after their fooding, etc. In 1958, Habib Ahmad Khan died and his share went to his brother, Chuttan Khan. Buddhan Khan had died in 1942 and therefore Chuttan Khan became owner of 2/3 share and ownership of remaining 1/3 share remained with the plaintiffs and their mother, Smt. Batul Begum. In 1977 the mother of the plaintiff, Smt. Batul Begum, died and thereafter the plaintiffs and their sister, Idris Jahan, Shamim Jahan and Smt. Rukhsar Begum became the owners in possession of the whole property. On 12.12.1978, two sisters of the plaintiff, namely, Idris Jahan and Shamim Jahan, gave their shares by means of oral hiba to the plaintiff and therefore they became owner of the whole house along with Smt. Rukshar Begum, their third sister. The revisional court found that how much is the share of the substituted plaintiff no. 1/1 to 1/4 in the house in dispute is not clear.

8. It has further submitted that the legal heirs of the deceased-plaintiff no. 1 were required to get the legal heirs of deceased-plaintiff no. 2 substituted in the suit but they did not did so. Rather the legal heirs of the plaintiff no. 2 made an application 151 C for withdrawing from the suit. The revisional court reached the conclusion that the legal heirs of plaintiff no. 1 and plaintiff no. 2 are the co-owners of the disputed house. The legal heirs of the plaintiff no. 1 can institute separate suit. It further found that in case the suit of the plaintiff is dismissed the appeal would be preferred by the legal heirs of plaintiff no. 1 only and the legal heirs of plaintiff no. 2 would be unable to prefer any appeal. The right and title of the plaintiff nos. 1 and 2 was common in suit property and therefore the suit cannot proceed at the behest of the legal heirs of the plaintiff no. 1 only.

9. This court finds that the suit was instituted by the plaintiffs, who are real brothers praying for a decree of eviction and a decree of permanent injunction against the defendants restraining them from damaging the constructions of the disputed house. The defendants are the relatives of the plaintiffs and it was pleaded that they were permitted to live in the house in dispute with the consent of the plaintiffs. With the passage of time the family of plaintiffs expanded and therefore the needs of the plaintiffs and their family increased and hence they instituted the suit.

10. The plaintiffs were joint owners of the property and after the death of plaintiff no. 1, namely, Shakir Khan, his legal applied for substitution of their names in place of deceased-plaintiff no. 1 but subsequently when the plaintiff no. 2 died they did not moved any application for substituting the legal heirs of deceased-plaintiff no. 2.

11. Rather the legal heirs of the plaintiff no. 2 filed an application for withdrawal of defendant no. 2 from the suit which was dismissed being not maintainable at their behest. Therefore, the finding of the revisional court that since the ownership of the plaintiff is joint, a decree cannot be passed at the behest of the legal heirs of deceased-plaintiff no. 1 only is correct. Their shares have not been defined in the plaint therefore their right to a decree of eviction and possession over the property in possession of the defendant cannot be passed. In a suit for permanent injunction or a suit for a decree of eviction a title of the plaintiffs is required to be decided by the court and without deciding their right and title in the suit property such a decree cannot be passed in favour of the plaintiffs. In the undivided property, wherein the plaintiff no. 1 as well as plaintiff no. 2 along with their sisters, Smt. Rukhsar Begum, were the owners a decree only in favour of a legal heirs of the plaintiff no. 1 cannot be passed. Since such a decree, if passed would amount to declaration of the title of the legal heirs of the plaintiff no. 1 over the entire house and they would be in a position to get the entire house vacated from the defendants which may affect the right, title and possession of the legal heirs of deceased-plaintiff no. 2 and defendant no. 5, Smt. Rukhsar Begum.

12. In view of the above consideration, the order of the revisional court appears to be justified and calls for no interference.

13. However as observed by the revisional court the legal heirs of plaintiff no. 1/petitioner can institute separate suit for eviction of defendants from their share in the property in dispute after declaration of their share in suit property.

14. The petition is devoid of merit and is hereby, dismissed.

Order Date :- 04.04.2022

Rohit