Allahabad High Court
Mirza Anwarul Hasan Beg Deceased And 2 ... vs Mirza Zafrul Hasan Beg And 2 Others on 11 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:176170
Court No. - 36
Case :- SECOND APPEAL No. - 739 of 2024
Appellant :- Mirza Anwarul Hasan Beg Deceased And 2 Others
Respondent :- Mirza Zafrul Hasan Beg And 2 Others
Counsel for Appellant :- Manish Pandey,Radhey Krishna Pandey,Rahul Sahai
Counsel for Respondent :- Md. Muzzammil.I.Qureshi
Hon'ble Kshitij Shailendra,J.
1. Heard Shri Rahul Sahai, learned counsel for the appellant-defendants and Shri Md. Muzzammil.I.Qureshi, learned counsel for the plaintiff-respondents.
2. The appellants are defendants in Original Suit No. 1336 of 2017, which was instituted by the plaintiff-respondents, claiming a decree for partition of the property in dispute. The suit was decreed by the trial court and civil appeal arising therefrom has been dismissed. As a result thereof, a preliminary decree of partition has been drawn.
3. Brief facts giving rise to the appeal are that the suit in question was filed on the plea that property being co-owned by the plaintiff and defendant, they being real brothers, and the defendants not recognizing plaintiff's half share in the property, decree for partition be drawn. The defendants contested the proceedings by filing written statement taking a plea as regards to a compromise decree dated 08.12.1981 drawn by the civil court in Original Suit No. 154 of 1981, in which recognition was granted to an oral hiba. Both the parties produced oral and documentary evidence and both the courts below have found that the property being co-owned.
4. Assailing the impugned judgments and decrees, Shri Rahul Sahai submits that it has come in the oral testimony of the plaintiff-respondent that he had been appointed as a lecturer in Aligarh in the year 1968, whereafter he left for Canada in 1970 and, thereafter, he shifted to America, where he was appointed in permanent capacity in National Institute of Health and he as well as his children got American citizenship. Learned counsel, therefore, submits that although plea of hiba was there, but since the plaintiff-respondent never came in actual or physical possession over the property, the hiba was never acted upon and, therefore, the claim for partition had no substance. He further submits that in order to prove a hiba, many ingredients are required to be established and none of them being present in the instant case, the suit was bound to fail.
5. Per contra, Shri Md. Muzzammil.I.Qureshi submits that admittedly both the parties are real brothers and in Original Suit No. 154 of 1981, the plaintiff-respondent was not party but in paragraph No. 3 of the plaint of the suit which was filed by the present appellant against father of both the parties, it was stated that father had executed an oral hiba in favour of both the real brothers i.e. his sons and delivered actual and physical possession to both of them. It is, therefore, contended that once title vested to the extent of half-half share based upon oral hiba recognized under a compromise decree drawn in a previous suit, both the courts below have rightly decreed the suit for partition.
6. Having heard learned counsel for the parties, I find that no plea of oral hiba was taken by the plaintiff-respondent in his plaint, however, half-half share of both the parties was asserted. As far as defence is concerned, it was substantially based upon the compromise decree dated 08.12.1981. The plaint of Original Suit No. 154 of 1981 is on record, paragraph No. 3, whereof reads as under:
"3- ?? ?? ???? ? ????? ?????? ??? ????? ?? ?? ????????? ?? ????? ??? 1981 ?? ??? ?????? ????? ????? ?????? ???????? ? ????? ??? ?????? ?? ?????? ?? ?? ??? ???? ?????? ???? ?????? ????? ??? ???? ?????? ?????? ?? ?? ?????? ? ?????? ?? ?????? ????? ???? ?? ????? ????? ??? ???? ?? ?? ?????? ? ?????? ?? ?????? ?? ???? ???? ????? ?? ????? ? ????? ???? ?????? ?????? ?? ???????? ????? ?? ???? ?? ?? ???? ?? ?? ?????? ? ????? ??? ?????? ?? ?????? ???? ? ????? ?????? ??? ????? ?? ???? ???? ??????? ????? ?????? ????? ????? ????"
7. It is not in dispute that compromise decree drawn in the aforesaid suit, in which the respondent was not a party, has attained finality. Even in absence of the respondent being a party to the proceedings, since the defendant-appellants had recognized half share in the previous proceedings and the decree has attained finality, merely because the plaintiff shifted to any foreign country, the same would not vanish his share in the immovable property.
8. As far as the contention based upon ingredients of hiba is concerned, it is to be noted that the present lis is not with regard to the validity of the oral gift or its acting upon. The question of proof or disproof of hiba not being directly involved in the lis, the compromise decree drawn in the previous proceedings recognizing paragraph No.3 of the plaint with regard to hiba and its ingredients has to be seen in the light of the decree itself and once the father being defendant entered into compromise with the appellant recognizing right of the plaintiff-respondent, this Court is of the considered view that the argument based upon alleged non-acting of hiba has no substance.
9. In view of the above discussion, this Court does not find anything on record by which the half share in the property vested in the plaintiff-respondent stood vanished in any way recognized under the law.
10. Consequently, the preliminary decree drawn is according to the law.
11. No substantial question of law arises for consideration of the appeal.
12. The appeal has no merit and is, accordingly, dismissed under order 41 Rule 11 CPC.
Order Date :- 11.11.2024
K.K.Tiwari
