Bombay High Court
Sajid Ismail Ig vs 4 Rajasaheb Appasaheb Maldar on 25 October, 2013
Bench: A.P. Bhangale
FA-1380-2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1380 OF 2003
WITH
CROSS OBJECTION (STAMP) NO.21759 OF 2008
AND
CIVIL APPLICATION NO.2011 OF 2012
AND
CIVIL APPLICATION NO.3054 OF 2012
IN
FIRST APPEAL NO.1380 OF 2003
SAJID ISMAIL ig )
Sole proprietor of M/s Allied Constructions )...APPELLANT
V/s.
1 SAIRABI ABDUL GAFFAR SHAIKH )
(since deceased through her legal heirs) )
1a) Mehtab Yunus Khan )
1b) Roshanara Abdul Gaffar Shaikh )
)
2 AISHARBAI FAKHRUDDIN SHAIKH )
)
3 VAIJAVANTI RAJENDRA PAREKH )
(Suit abated against her vide order )
(dtd.19.1.2006 in CAF 3238 of 2005) )
)
4 RAJASAHEB APPASAHEB MALDAR )
)
5 RAFIQUE MOHAMMED ALI BALEGAONKAR )
@ RAFIQUE SYED ABDUL GAFOOR SHAH )...RESPONDENTS
Mr.C.G.Gavnekar with Mr.A.M.Kulkarni, Akshay Shinde Advocate for
the Appellant.
Mr.M.D.Adkar with Shri S.R.Ganbavale Advocate for the Respondent
Nos.1a, 1b and 2.
Mr.Rajdeep Khadapkar i/b. Mr.Sangramsingh Yadav and Mr.Rahul
Walvekar Advocate for Respondent Nos.4 and 5.
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FA-1380-2003
CORAM : A. P. BHANGALE, J.
DATE ON WHICH :
JUDGMENT IS RESERVED : 17th OCTOBER, 2013.
DATE ON WHICH :
JUDGMENT IS PRONOUNCED : 25th OCTOBER, 2013.
JUDGMENT :
1 Heard submissions at the Bar at length. This appeal is
against the Judgment and order dated 21-08-2003 passed by Jt. C.J.S.D.
Pune, in Special Civil Suit No.2107 of 1997, decreed in favour of the
original plaintiffs-respondents, declaring them as owners of ¾th share of
the suit property i.e. Land survey no. 61/9/1 admeasuring 14 gunthas,
situated at Mauje Vanvadi, District Pune, and that agreements between
the defendant nos.1 and 2 in favour of the defendant no.3 or in favour
of the defendant no.4 dated 23.04.1994 and 04.09.1995 respectively are
not binding on the plaintiffs and their undivided share. Defendant nos.1
to 4 were restrained permanently from carrying out any construction in
the suit property and from creating any third party interest or
encumbrance on the three-fourth share of the plaintiffs over the suit
property. While the defendant nos.5 to 7 were restrained from
sanctioning any plan for construction on the suit property without the
consent of the plaintiff nos.1 and 2 in respect of their three-fourth share.
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2 The facts stated are:-
Special Civil Suit No.2107 of 1997 was instituted by the
original plaintiffs real sisters namely 1.Smt Sairabi Abdul Gaffar Sheikh
and 2.Smt Aisharbi Fakhruddin Sheikh. They had real brother
Mohammed Ali. According to the plaintiffs their mother Jamalbi owned
House property situated upon land Survey No.737 at Shukravar Peth,
Pune, as also an house situated at land Survey No.736 at old Shukravar
Peth, Pune. Mohammed Ali with consent of the plaintiffs sold old
property and purchased the suit property land Survey No.61/9/1 at
Wanwadi i.e. Suit property. The suit property was purchased under the
registered sale deed dated 09-06-1982 in the name of Mohammed Ali
and his Wife Zulekhabi. On 23.03.1984 Mohd. Ali died issueless leaving
behind his widow Zulekhabi. Zulekhabi died issueless on 13.06.1990.
The plaintiffs sisters had filed a Miscellaneous Application No.357 of
1984 which was granted and numbered as Special Civil Suit No.518 of
1984 for partition of the suit property. On 01.08.1984, the defendant
Zulekhabi was restrained from transferring the suit property to any
third person. Thus in the said suit temporary injunction was granted.
While suit against Zulekhabi being Suit No.518 of 1988 was pending,
which was defended by Zulekhabi, she died on 13.06.1990. According
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to the plaintiffs Zulekhabi had died issueless. But then defendant no.1
Mr.Rajasaheb Appasaheb Maldar and defendant no.2 Mr.Raffique
Mohammed claimed share in the suit property and had applied under
Order 22 Rule 4 and 4A of Civil Procedure Code to bring legal
representatives of Zulekhabi and to join the suit as party defendants on
record. They had claimed that they became entitled to the suit property
as they are legatees on the premise that the suit property was
bequeathed to them under the alleged last Will by Zulekhabi. On
04.07.1992, Raffique also claimed that he is son of Mohd. Ali through
another wife Mariambi in addition to the plea as legatee under the
alleged Will by Zulekha. For want of application under Order 22 Rule 1
and 2 of Civil Procedure Code the Suit No.518 of 1988 was held as
abated. On or about 06.10.1995, the plaintiffs had informed Pune
Municipal Corporation (PMC) not to grant sanctioned plan of building
upon suit property. The City Engineer had informed the plaintiffs that
the PMC had temporarily stopped the process of sanctioning a building
plan. A Writ Petition No.609 of 1996 was filed in order to challenge
the abatement of the suit. Writ Petition was dismissed on 17.03.2008.
The plaintiffs filed the present Suit No.2107 of 1997 which was
decreed as stated above. According to the original plaintiffs they were
joint owners with their late brother Mohammed Ali. According to the
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plaintiffs they along with their brother Mohammed Ali and Zulekhabi
had undivided interest of ¾th and 1/6th +1/6th in the suit property.
After death of Mohammed Ali, Zulekhabi as a legal heir under
Mohommedan law was entitled to ¼th of his 1/6th share and the
plaintiffs are entitled to remaining ¾th share of Mohammed Ali by
inheritance. After Mohammed Ali died issueless, Zulekhabi was entitled
to the ¼th share of Mohammed Ali's undivided share in the suit
property and the plaintiffs were entitled to the remaining undivided ¾th
share by inheritance. The plaintiffs in addition to their ¾th share were
entitled to ¾th of 1/6th of Mohammed Ali's share after his demise. Thus
share of Zulekhabi undivided share was 1/12th and she was not
competent to bequeath it by the testamentary disposition under the
General Law, and 1/3rd of 1/12th according to Muslim Personal law as it
permits disposition of 1/3rd only and remaining ¾th devolves as per
personal law of inheritance. Thus assuming the validity of the bequest,
it would operate to the extent of 1/36th undivided share only. Raffique
claimed as adopted son of Zulekhabi. Concept of Adoption is not
recognized under Muslim Law. Hence Raffique (defendant no.2) could
not have been recognized as legal heir of Zulekhabi under Muslim Law
of inheritance. According to the plaintiffs though Raffique was son of
Sayed Abdul Gafoor Sheikh, he also claimed as Son of late Mohammed
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Ali through his so called another wife Mariambi. Defendant no.2
claimed that Mariambi was married with late Mohammed Ali at
Kolhapur on 08.06.1969 as per Muslim Personal law.
3 According to the plaintiffs, Raffique (defendant no.2) have
not even semblance of legal right. He cannot be recognized as legal heir
under Muslim Personal law of inheritance of Mohammed Ali or
Zulekhabi as claimed by him. After death of Zulekhabi the defendants
nos.1 and 2 moved an application to the Tahasildar, Pune, and without
giving any notice to the plaintiffs got their names mutated in the V.F.
VII/XII extracts of the suit land on the basis of alleged Will of scribed in
Kannada language without any authentic certificate of the translation
in official Marathi language. Tahasildar, Pune, had mechanically
without holding any inquiry as contemplated under the Maharashtra
Land Revenue Code, mutated names of defendant nos.2 and 3 in the
7/12 extract. The Mutation was challenged by RTS Appeal no.104 of
1994 before the Sub-Divisional Officer, who by the Judgment dated
30.10.1995 dismissed the appeal. Second Appeal no.253 of 1997 is
pending before the Collector, Pune. Meanwhile, taking undue
advantage of mutation entry in their favour, the defendant nos.1 and 2
entered in the Development agreement in respect of the suit property
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with defendant nos.3 and 4 on 24.03.1994 and 13.09.1995 respectively
and a Building plan along with VII-XII extract of the suit property was
submitted to the Pune Municipal Corporation through Power of
attorney holder and developer. The plaintiffs claimed that the
agreement between the defendant nos.2 and 3 on one hand and 3 and
4 on the other hand regarding the development of the suit property is
not binding on them. Under the pretext of the Development agreement
the defendant nos.1 to 4 are trying to develop the suit property to the
exclusion of the plaintiffs. The defendants have denied the suit claim
and claimed interest in the suit property. Defendant no.4 filed suit for
specific performance being Regular Civil Suit No.1667 of 1995 against
the plaintiffs and defendant no.3 for declaration and injunction seeking
to restrain the plaintiffs and the defendant no.3 from entering in the
suit property. Pune Municipal Corporation is not party to the suit but
sanctioned the building plan submitted by the defendant no.4 after
payment of huge amount of Rs.1,71,000/-. According to Pune
Municipal Corporation it had verified the title of the suit property and
took indemnity Bond and undertaking from the M/s.Allied
Constructions. Further according to PMC it is dispute as to title to the
suit property inter se between the defendant nos.1 to 4 and the original
plaintiffs. As the defendant nos.1 to 4 have not complied with certain
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provisions the Building plan was not finally approved. Municipal
Corporation contended that it will follow the order of the Court.
Defendant no.3 claimed that he was put in possession of the suit
property under the part performance of the contract and his suit for
specific performance is pending against the defendant nos.1, 2 and 4,
which was stayed under section 10 of the Civil Procedure Code.
4 During the pendency of this appeal, the parties filed
consent terms. By order of this Court dated 24.02.2011, compromise
has attained finality. My Brother Judge Shri A.S.Oka recorded
compromise as a result of the agreement evidenced by the consent
terms (marked 'x' for identification) signed by Appellant Nos.2 and 3 as
well as Respondent Nos.1-A, 1-B and 2. Since the Appellant No.1 did
not agree with the consent terms (and raised objection to acceptance of
the consent terms) his objection was overruled and it was recorded that
the consent terms will not bind the Appellant No.1. Thus we find that
there was already a decree binding between Appellant Nos.2 and 3 and
Respondent Nos.1A, 1-B and 2. The appeal thus remains pending as
contest limited between the Appellant No.1 (now sole appellant) and
rest of the parties. Appellant Nos.2 and 3 were thus transposed as party
Respondents at the request of Appellant no.1. Order XXIII of CPC deals
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with "Withdrawal and Adjustment of Suits". Rule 3 of Order XXIII
speaks about "compromise of suit" which reads as under:
"3. Compromise of suit.- Where it is proved to the
satisfaction of the Court that a suit has been
adjusted wholly or in part by any lawful
agreement or compromise in writing and signed
by the parties, or where the defendant satisfies
the plaintiff in respect of the whole or any part of
the subject matter of the suit, the Court shall
order such agreement, compromise or satisfaction
to be recorded, and shall pass a decree in
accordance therewith so far as it relates to the
parties to the suit, whether or not the subject
matter of the agreement, compromise or
satisfaction is the same as the subject matter of
the suit :
Provided that where it is alleged by one party and
denied by the other that an adjustment or
satisfaction has been arrived at, the Court shall
decide the question; but no adjournment shall be
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granted for the purpose of deciding the question,
unless the Court, for reasons to be recorded,
thinks fit to grant such adjournment.
Explanation -- An agreement or compromise
which is void or voidable under the Indian
Contract Act, 1872 (9 of 1872), shall not be
deemed to be lawful within the meaning of this
rule."
It is submitted on behalf of the respondents that in view of the consent
terms recorded 'X' for identification as above, nothing really would
survive in this appeal now continued by the builder and developer who
merely intended to gain pecuniary advantage out of the pending
dispute between the co-sharers according to Muslim Personal law who
consented to bury their dispute during pendency of the appeal by a
compromise recorded by this Court. The Decree by compromise or
consent terms is not challenged by the appellant as prescribed by law
and therefore in my opinion shall bind him as well because he is
seeking to claim under the consenting parties to the compromise
namely original defendant nos. 2 and 3.
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5 Thus the salutary question in this appeal is as to whether
the impugned Judgment and order requires any interference in exercise
of the appellate power by this Court? The answer has to be given in the
negative for following reasons:
6 The first contention is that the earlier Suit no.518 of 1988
filed by the Plaintiffs abated by order dated 29.08.1996 and Writ
Petition No.6409 of 1996 was dismissed on 17.03.2000. Hence present
suit is barred by the principle of Res Judicata (S.11 C.P.C.). Admittedly
earlier Civil Suit no.518 of 1988 was not decided on merits. No
evidence was recorded as it was disposed of as abated. Defendant no.1
and 2 as heirs of Zulekhabi were not permitted to come on record.
Hence it is not just and proper to say that present suit is not
maintainable as barred by the principle of Res Judicata when earlier
suit was not decided on merits according to law. In the ruling in Ram
Kalap Vs. Banshi Dhar and others AIR 1958 All. 573 in Para 3
Division Bench of Allahabad High Court observed thus :
"Order XXII, Rule 5 of the Code of Civil
Procedure provides only a summary procedure
for appointing a person to be the legal
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representative of the deceased party for the
purpose of prosecuting the suit and the order
appointing the legal representative does not
operate as a final determination of the
representative character of the person appointed,
that is to say, it does not operate as res judicata.
Vijayalakshmi Jayaram Vs. M. R. Parasuram
and others AIR 1995 AP 351 it was observed in
Para 5 thus:-
"A Full Bench of Punjab and Haryana High Court
in Mohinder Daur vs. Piara Singh,
MANU/PH/0197/1981 has held that
determination of the point as to who is the legal
representative of the deceased plaintiff or
defendant under Order 22, Rule 5 of the Code of
Civil Procedure is only for the purposes of
bringing legal representatives on record for the
conducting of those legal proceedings only and
does not operate as res judicata and the inter se
dispute between the rival legal representatives
has to be independently tried and decided in
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separate proceedings. Following this decision
another Judge of Punjab and Haryana High Court
in S.Charanjit Singh vs. Bharatinder Singh,
MANU/PH/143/1988 held that proper course to
follow is to bring all the legal representatives on
record so that they vouchsafe the estate of the
deceased for ultimate benefit of the real legal
representatives"
8 The case of the original plaintiffs is that their mother
Jamalbi was Owner of the old Survey No.736 from Shukravar peth and
land Survey No.737 from old Shukravar Peth. The suit property was
acquired out of the Sale proceeds of earlier ancestral property. It is
further averred that Jamalbi had allowed Mohammed Ali to reside in
the suit property till his death and according to her Will; the suit
property will devolve upon the Son of the Mohammed Ali in case he
begets Son from Zulekhabi otherwise entire property would be
inherited by the Daughters of Jamalbi. Admittedly Mohommed Ali and
Zulekhabi died issueless. Under these circumstances the claim is made
that Defendant no.2 Raffique is adopted Son of Mohammed Ali and
Zulekhabi. Exhibit 96 shows that the land City survey no. 737 of
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Shukravar Peth was renumbered as 1021 of Budhvar Peth was mutated
on 08.03.1967 in the names of the Plaintiff nos.1 and 2 on the basis of
the Will by Jamalbi Dastagir Belgaonkar who expired in the year 1967.
The mutation entry remained unchallenged. Let us consider the
evidence on record and admissions by the Defendant no. 1 in his cross
examination -
a) In Para 4 he admits that he has no personal knowledge as to
where from the consideration was paid for purchase of the suit
property.
b) No proceeding was initiated regarding the "Vyavastapatra"
from Jamalbi. Land City Survey no. 1021 in Budhwar Peth (Old
survey no.737 of Shukrawar Peth was Mutated in the name of
Original Plaintiffs pursuant to the said "Vyavastha Patra"
executed by Jamalbi (vide Ex 174). Old City Survey no.736 of
Shukravar Peth was also owned by Jamalbi. (Mother of the
Plaintiffs and Mohommed Ali). Ex 176 is copy of the sale Deed.
Original Sale Deed is not on record. The said property was sold
by Mohammed Ali and the Plaintiffs Sairabi and Aisharbi etc to
Kasabai Hullappa Imnad.Thus Mohammed Ali had limited
interest/ Share.
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c) No documentary evidence is on the record to show that
Zulekhabi paid any part of consideration to purchase suit
property.
d) Zulekhabi was not having any separate source of income.
Merely because her name was shown as joint purchaser by
Mohammed Ali it would not lead to safe conclusion that she was
only surviving co-owner in her own right to dispose of the
property to the exclusion of the original Plaintiffs who are
residuary co-sharers under Muslim personal law i.e. Hanafi law
of inheritance. The Trial Court in its discussion did consider that
Mohammed Ali and his Wife Zulekhabi were Joint purchasers of
the Suit property having considered the ostensible title of
Zulekhabi.
e) Though Defendant no. 1 claims as Brother of Zulekhabi, he
do not know whether Mohammed Ali and Zulekhabi sold
property City Survey no.1021 in Budhwar Peth (old Survey no
737 of Shukravar Peth which was owned by Jamalbi) in the year
1982. Defendant no.1 conveniently feigns ignorance as to the
sale proceeds of earlier property in the hand of Mohammed Ali
who later used it to purchase the suit property.
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f) There was no evidence to show that Mohammed Ali had
purchase money from his own source to purchase the suit
property. The inference is that the source of purchase money
emanated from Sale of ancestral old property owned by his
Mother Jamilabi. (Vide Ex 176)
g) The contention of the defendant no.2 Rafique that he is son of
Mohammed Ali seems sheer opportunism. The contention is
therefore not acceptable as it has no concrete factual or legal
basis in the evidence on record. The conduct of the defendant no.
2 to remain dormant and inactive even after death of
Mohammed Ali to get his name entered in the Revenue record
within reasonable time speaks volumes against him.
h) Alleged original Will by Zulekhabi is not produced on the
record. No explanation is brought on the record as to why
original Will document is not produced, although it is claimed
that Defendant nos.1 and 2 were entitled to claim half-share each
in the suit property. Onus is upon the propounder of the Will to
establish it. Even assuming for the sake of argument that
Zulekhabi could have bequeathed the property, under Muslim
personal law she could not have bequeathed more than One-
third of her own share in the suit property. Merely because the
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defendant no 2 told Tahasildar, Pune, that he was accepting
Zulekhabi as his Mother, it cannot be legally acceptable evidence
to establish disposition by Will without proper proof according to
law or the legal validity of the document. There was no
acceptable real evidence to prove Zulekhabi's joint legal
ownership of suit property in the absence of the proof of her
separate source of her income and her contribution to the
purchase of the suit property.
i) ME 363 was recorded by the Tahasildar, Pune, on the basis of
superficial material mere Xerox copy of alleged Will vide
statement Ex.135. According to the contents of the statement
made by the Defendant no.1 Rajasaheb, Zulekhabi, his maternal
aunt died issueless on 13-06-1990. Defendant no.1 Rajasaheb
Appasaheb Maldar claimed that he is legal heir as he is Son of
Brother of Zulekhabi along with Defendant no.2.
j) There is no concept of adoption in Muslim personal law so as
to accept claim that Zulekhabi adopted Defendant no.2 Raffique
@ Raffique Sayyad Abdul Gaffar Sheikh as her Son. Learned
commentator Mulla in his book "Principles of Mohammedan Law"
has observed that Mohammedan Law does not recognize
adoption as a mode of filiation. He however states that where a
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special family or tribal custom of adoption is proved the adoption
can be done. The burden of proving custom is on the person who
asserts or propounds custom. No such custom has been
established in the present suit.
k) Even for the sake of argument if contention of the Defendant
nos.1 and 2 that Mohammed Ali purchased the suit property is
accepted, even then since Mohammed Ali died issueless. His
Widow Zulekhabi was entitled to 1/8th share of the property
owned by Mohammed Ali rest going to the Plaintiffs-his two full
sisters. Zulekhabi also died issueless. In the absence of other
legal heirs under Muslim Personal law the Plaintiffs were entitled
to inherit the property to claim their shares as per Muslim
Personal Law.
l) Version of the defendant no.2 Raffique that he is Son of
Mohammed Ali through his alleged wife Mariambi is found
without any rational or convincing basis and appear an
afterthought generated by greed, falsely invented, make believe
story due to his greed for the suit property. Such artificially
manipulated version cannot help him or anybody claiming under
him to profess legal right or title in respect of the disputed
immovable property.
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m) Abdul Kafis Abdul Kadir whose affidavit (Ex 87) was sought
to be relied upon is not examined in the trial Court. Merely
tendering his affidavit cannot be legal evidence since he was not
offered for cross examination of the contesting parties. Original
Nikahnama was not produced to prove marriage according to
Muslim Personal law between Mohammed Ali and Mariambi.
9 Apart from the observation on merits, it must be borne in
mind that the term `compromise' essentially means settlement of
differences by mutual consent terms. In such process, the adversarial
claims come to an end and the cavil between the parties is given a
decent burial. A compromise which is arrived at by the parties puts an
end to the litigative battle between them. Sometimes the parties to the
longstanding dispute feel that it is an unfortunate long drawn out bitter
struggle and allow good sense to prevail over them to amicably resolve
the dispute. In certain cases, by intervention of mediator or well-
wishers, the conciliatory process commences and eventually, by
consensus and concurrence, rights get crystallized for their mutual
benefits. A reciprocal settlement with a clear open mind reduced in to
writing is regarded as noble way sometimes by fair give & take
approach to end the suit controversy. It signifies dignified and majestic
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facets of the human mind. The mind-set to make peace and not to fight
is quintessence of sublime somberness and helps social stability. In the
present case, as the factual matrix would reveal, a consent decree came
to be passed on the bedrock of a compromise between the consenting
parties except for the sole appellant. Consent terms thus leaving
nothing to be done between the consenting parties in the future. The
curtains were really drawn up between the original plaintiffs and the
original defendant nos.1 and 2. This Court gave the stamp of approval
to the same. Thus, the inescapable conclusion is that the compromise/
consent terms decree between the parties except the sole appellant
herein was a final and enforceable decree between the consenting
parties.
10 Barring the consent terms, above mentioned facts
indicated that for want of legal evidence Defendant nos.1 and 2 were
not entitled to any share as they are legal heirs of neither Mohammed
Ali nor Zulekhabi according to Muslim Personal Law. The persons
claiming under Defendant nos.1 and 2 who merely having ventured to
purchase the immovable property on the basis of revenue mutation
entry cannot have legal rights, title and interest in the suit property.
The sole appellant in Para 17 of his written statement stated thus:-
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"....the defendant no 4 has paid the entire monetary
consideration to defendant nos.1 and 2 and has
handed over possession of two flats in another
building that has been constructed by Defendant no.
4. It is submitted that Defendant no.4 has fulfilled all
his obligations towards Defendant nos.1 and 2 and is
facing considerable hardship and monetary loss due
to dilatory tactics of the Plaintiffs".
If that is so, sole appellant cannot escape blame on the ground of
conduct of champerty i.e. clandestinely entering in to illegal agreement
with the litigant to aid or finance the litigation in return for a share of
the proceeds following a successful outcome of the litigation.
Champertous litigant can never be encouraged as he cannot claim
equity so as to be allowed to continue the litigation endlessly when all
other parties have settled the dispute amicably in the suit by means of
consent terms recorded to the satisfaction of this court. It is also
pertinent to note that the written statement for the defendant nos.1, 2
and 4 was verified by Altamash Sajid Ismail as their 'power of attorney
holder'. He could not have vouchsafed for the averments made in Para
3 of the Written Statement. He alleged that Nikah between
Mohommed Ali and Mariambi took place on 08.06.1969 at Kolhapur as
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per Muslim Personal law and claimed that the defendant no.2 is only
legal heir for suit property as real Son of Mohommed Ali through
Mariambi. No reliable legal evidence was forthcoming to establish tall
claims made by him as 'power of attorney holder' for defendant nos.1,
2, and 4. The facts such as happening of Nikah/ Marriage ceremony
which are within personal knowledge of a witness or facts which relates
to a state of mind of a witness cannot be deposed by indirect evidence
of an agent of the party concerned, when facts require direct evidence
or legal proof by the best evidence available.
11 Furthermore, it is well settled legal proposition that mere
revenue mutation entry cannot confer a legal right or title in favour of
the person who may have succeeded to obtain it sometimes even by
clandestine connivance with revenue official concerned. Revenue
Mutation entry obtained in their favour of the defendants nos.1 and 2
cannot confer any legal right or title to them in the suit property.
Mutation entry is not the real evidence of legal title as it is result of
merely a fiscal inquiry by Revenue officer to prima facie find out or
discover the person by whom revenue is regularly payable. The final
decision of the competent Civil Court called upon to decide the legal
right or title would alone bind the parties.
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12 Learned trial Judge examined the facts in details with
reference to well established principles of Muslim Personal law while
applying his judicial mind to the facts and circumstances of the case to
arrive at logical and correct conclusions. The approach of the learned
trial Judge is to deal with all the contentions raised by the parties by a
well reasoned and sound judgment. The impugned judgment appears
flawless, without any blemish and needs no interference in exercise of
the appellate power.
13 Hence appeal by sole appellant has to fail. It is dismissed
with costs.
14 Learned counsel for the appellant prayed for continuation
of interim order dated 8.4.2013 for a period of eight weeks.
15 Continuation of interim order is objected.
16 The interim order passed on 8.4.2013 will continue for a
period of eight weeks, since the appellant would like to avail of further
relief, which will continue for a period of eight weeks.
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17 Civil Application No.2011 of 2012, Cross Objection
(Stamp) No.21759 of 2008, and Civil Application No.3054 of 2012 do
not survive and stand disposed of.
(A. P. BHANGALE, J.)
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