Bombay High Court
Naimuddin S/O Habibulla Khan vs Smt. Rabiyabegam W/O Moh. Ishaque ... on 24 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5524 OF 2014
Naimuddin s/o Habibulla Khan,
Aged about 55 years,
Occupation - Driver,
R/o Naik Road, Mahal, Nagpur. .... PETITIONER
VERSUS
1) Smt. Rabiyabegam w/o Moh. Ishaque,
Aged about 45 years,
Occupation - Household,
R/o Goalpura, Naiebasti, Ansari Nagar,
Jabalpur (MP).
2) Smt. Hajrabai w/o Khalilulla,
Dead Legal Heirs.
2(a) Jabiulla s/o Khaliulla,
Aged 51 years, Occ. - Labour.
2(b) Jaffarulla s/o Khaliulla,
Aged 51 years, Occ. - Labour,
2(c) Hidayatulla s/o Khaliulla,
Aged 49 years, Occ.- Labour,
2(d) Aziziulla s/o Khalilla,
Aged 43 years, Occ.- Labour,
2(e) Ajamatiulla s/o Khaliulla,
Aged 41 years, Occ.- Labour.
2(a) to 2(e) R/o Naik Road,
Mahal, Nagpur.
2(f) Smt. Bilkisbegum w/o Dadamiya
Jabiulla, Aged 47 years,
Occupation - Nil,
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R/o Near Majid, Jalalkheda Road,
Mowad, Tahsil - Narkhed, District-
Nagpur.
3) Smt. Rukhayyabegam w/o Sk. Altaf,
Aged about 35 years,
Occupation - Household,
R/o Naik Road, Mahal, Nagpur. .... RESPONDENTS
______________________________________________________________
Mrs. S.V. Taksande, Advocate for the petitioner,
Shri H.G. Katekar, Advocate for the respondent Nos.1, 2(a), 2(b), 2(c),
2(d) and 3.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 24
th JUNE, 2016
ORAL JUDGMENT :
1, Heard Mrs. S.V. Taksande, Advocate for the petitioner-
original plaintiff and Shri H.G. Katekar, Advocate for the respondent
Nos.1, 2(a), 2(b), 2(c), 2(d) and 3-original defendants.
2. Rule. Rule made returnable forthwith.
3. The dispute is between brother and sisters in respect of the
property owned by their mother.
4. The petitioner-plaintiff filed Regular Civil Suit
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No.2067/1994 praying for decree for declaration that he has the legal
right in the house. The plaintiff prayed for decree for permanent
injunction restraining the defendants from dispossessing the plaintiff
from the portion occupied by him on the ground floor, if the suit house
is partitioned between the parties. The trial Court dismissed the claim
of the plaintiff for decree for declaration, however, the trial Court
granted decree for injunction restraining the defendants from
disturbing the possession of the plaintiff over the ground floor of house
without due process of law. The plaintiff being aggrieved by the
rejection of this claim by the trial Court, has filed appeal which is
pending. In this appeal, the plaintiff filed an application (Exhibit
No.17) under Order VI Rule 17 of the Code of Civil Procedure seeking
permission to amend the plaint and praying for decree for partition
and separate possession of 2/5th share in the property. The learned
District Judge has rejected this application by the impugned order.
5. The learned Advocate for the respondents-defendants has
pointed out from the judgment passed by the trial Court the findings
recorded by the trial Court that the defendants had established that the
property was gifted by their mother to the defendants and therefore,
the plaintiff does not have any right, title or interest in the suit
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property.
6. The application seeking permission to amend the plaint is
filed after about 17-18 years. The learned District Judge has properly
considered all the relevant aspects and has rightly rejected the
application.
I do not find any illegality or irregularity in the impugned
order. The petition is dismissed with costs quantified at Rs.6,000/-
(Rupees Six Thousand) to be paid by the petitioner to the respondents
within one month. The receipt showing payment shall be filed on
record of the District Court. The amount of costs shall be given to the
respondents equally.
JUDGE
adgokar
