Bombay High Court
Abeda Bano Shaikh Jalaluddin & Ors vs Jamshid Amir Ali Khan & Ors on 13 October, 2017
Bench: R.D. Dhanuka
First Appeal 269 of 2006
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 269 OF 2006
1] Abeda Bano W/o Sk. Jalaluddin,
(Since Died, through L.R.)
1-A] Shahjadi Begum w/o.Shaikh Nabilal
Age: 65 years, Occu.: Household,
R/o.201, Forest Colony, Daund,
Dist.Pune.
2] Smt. Tasneem Bano W/o Syed Abdul Hasan,
Age : 55 years, Occupation: Household,
R/o. Ambajogai, Dist. Beed. (Deleted)
3] Smt. Latifunnisa Begum W/o Sk. Shafiuddin,
Age : 65 years, Occ. Household,
R/o. Railway Colony, Kurduwadi,
Dist. Sholapur.
4] Hanifunnisa Begum W/o Karimullah Khan,
(Since Died through L.Rs.]
4-3] Anjum Jahanara W/o Fahimuddin
Age : 43 years, Occ. Household,
R/o. Kurduwadi, Tq. Madha
Dist. Sholapur.
5] Smt. Ashrafunnisa Begum
W/o Shafiq Ahmed Siddiqui,
Age : 54 years, Occu.Household,
R/o : Near Jalashahi Masjid,
Ausa, Dist. Latur.
6] Arefunnisa Begum w/o Khalique
Ahmed Siddiqui,
Age : 53 years, Occu. Household,
R/o : Barshi Road, Prakash Nagar,
Latur.
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All Appellants through General
Power of Attorney Holder, M.A.
Muqsith Khan s/o Mohd. Mehboob
Khan, Age : 65 years, Occu. Retired
Govt. Servant, R/o : Bhadkal Gate,
Aurangabad. ...APPELLANTS
(Orig. Plaintiffs)
VERSUS
1] Jamshid Amir Ali Khan s/o Hamid
Ali Khan, Age : 32 years, Occ.Agri.
R/o. In front of S.P. Office,
Ambajogai Road, Latur.
1) Abeda Bano W/o Jalaluddin Died. L.R.
1-B) Shaikh Zahuroddin S/o Jalaluddin Age : 71 Yrs
1-C) Shaikh Moinuddin S/o Jalaluddin Age : 63 Yrs
Both Occ.Pensioner, House No.201,
Near Forest Colony, Daund Dist.Pune.
2] Taufique Aslam Khan s/o Hamid
Ali Khan, Age : 48 years, Occu.
Agri. R/o : Near Abbas complex,
Ambajogai Road, Latur.
3] Zaki Khan s/o Hamid Ali Khan,
Age : 39 years, Occu.Business,
R/o : Near Abbas Complex,
Ambajogai Road, Latur.
4] Saquib Abbas Khan s/o Hamid
Ali Khan, Age : 36 years, Occu.
Doctor, R/o : Ambajogai Road,
Latur.
5] Smt. Maimoona Bano w/o Hamid
Ali Khan, Age : 80 years, Occu.
Household, R/o : Ambajogai Road,
Latur
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6] Smt. Qamar Bano W/o Abdul
Basmit Khan, Age : 65 years,
Occu. Household, R/o Ghalib
Nagar, Idgah Road, Parbhani.
7] Smt. Qaisar Bano w/o Abdul
Muqsith Khan, Age : 57 years,
Occu. Household, R/o Sane
Hospital, Bhadkal Gate,
Aurangabad.
8] Smt. Akhtar Bano w/o Muntajbuddin
Shaikh, Age : 55 years, occu. Household,
R/o : High School, Bhadkal Gate,
Aurangabad.
9] Smt. Afsar Bano w/o Iftekhar Ahmed,
Age : 53 years, Occu. Household,
R/o . C/o Patel Rauf, In front of
Chause Building, Altamash Colony,
Aurangabad. (Deleted)
10] Smt. Akbar Bano w/o Mahmood Ali
Khan, Age : 51 years, Occu. Household,
R/o. Near S.P. Office, Ambajogai Road,
Latur.
11] Afroz Bano w/o Abdul Hamid Patel,
Age : 49 years, Occu. Household,
R/o . H.No. 1-112, Patel Cottage,
Station Bazar, Gulbarga (Karnataka).
(Deleted)
12] Tabassum Bano w/o M.A. Mansoor,
Age 33 years, Occu. Household,
R/o : 22/4, M.S.E.B. Colony,
Vasai Road, Mumbai. (Deleted)
13] Mir Raza Ali S/o Mir Shahad Ali,
Age 49 years, Occu. Auto Mechanic,
R/o : Near General Post Office,
Latur.
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14] Riyaz Ahmed s/o Abdul Hasan,
Age : 29 years, Occu. Service,
R/o . Gandhi Nagar, Ambajogai,
Tq. Ambajogai, Dist. Beed
15] Zaki Ahmed s/o Abdul Hasan,
Age : 29 years, Occu. Nil,
R/o ;Gandhi Nagar, Ambajogai,
Tq. Ambajogai, Dist. Beed.
16] Syed Dayam Hussain s/o
Syed Hussain Saheb Dayami,
Age : 50 years
17] Manohar s/o Bhaurao Wadikar,
Age : 60 years.
18] Mehboobbi w/o Abdul Karim
Saheb, Age : 65 years.
19] Syed Ghaus s/o Syed Younus
Dayami, Age : 55 years.
20] Saliya Begum w/o Syed Ghaus
Saheb, Age : 45 years.
21] Shabbir Miya s/o Mehtab Saheb,
Age : 45 years.
22] Mohd. Hamed Peer Pasha s/o
Mohd. Osman Saheb Junaidi,
Age: 40 years.
23] Pasha Miya s/o Hussain Saheb,
Age : 48 years.
24] Shakuntala Bai w/o Siddeshwarrao
Birajdar, Age : 50 years.
25-1] Prabhakar s/o Vithalrao Kshirsagar,
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Age : 40 years.
25-2] Errappa s/o Govindrao Lode,
Age : 45 years
26] Budha Vihar Mandal Narsingrao
Bodke, Age : 65 years.
27] Ashraf Khan s/o Hayat Khan,
Age : 40 years.
28] Chairman Venkatrao Apparao
Patil, Age : 60 years.
29] Mastanbi w/o Mohd. Yasin
Saheb, Age : 60 years.
30] Mastanbi w/o Mohd. Yasin
Saheb, Age : 60 years.
31] Kasturibai w/o Ramdas
Thakur, Age : 50 years
32] Tukaram s/o Kashinathrao
Kale, Age : 55 years
33] Abdul Sattar s/o Baban
Saheb, Age : 45 years.
34] Kasturbai w/o Ramdas
Thakur, Age : 50 years.
35] Khaleedabi w/o Hasan Khan
Pathan, Age : 60 years.
36] Abdullah s/o Mohiuddin,
Age : 40 years.
37] Dr. Dilip s/o Govindrao
Deshpande, Age : 55 years
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38] Anisa Begum w/o Abdul
Waheed Deshmukh,
Age : 40 years.
39] Noor Jahan Begum w/o
Mohd. Rafiq Saheb,
Age : 35 years
40] Hajrabi w/o Sk. Rahim
Saheb, Age : 38 years
41] Syed Pasha Syed Mohd. Dafedar,
Age : 45 years,
42-1] Dawood Khan s/o Vazir Khan,
Age : 35 years.
2] Roshan Khan s/o Vazir Khan,
Age : 32 years.
43] Rahmatbi Dastagir Pathan,
Age : 40 years.
44] Jahanara Begum w/o Syed
Majed Hussain, Age : 32 years.
45] Syed Yasin Saheb s/o Syed
Pasha, Sahab Dayami,
Age : 50 years
46] Safia Begum w/o Shaikh Ismail
Saheb, Age : 32 years.
47] Nuzhat Sultana w/o Nisar
Ahmed Chaus, Age : 35 yrs.
48] Raeesa Begum w/o Mohd. Azam
Sahab, Age : 38 yrs.
49] Devidas s/o Bapurao Somwanshi,
Age : 50 years
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50] Kantabai w/o Nivrati Kamble,
Age 35 years.
51] Shaikh Hameed Multan Pasha,
Age : 42 years.
52] Shaikh Nulfam Multan Pasha
Saheb, Age : 60 years.
53] Narsingh Gundappa Landge,
Age : 55 years.
54] Sudheer Manikrao Waghmare,
Age : 52 years
55] Nitin Murlidharrao Shasturkar,
Age : 45 years
56] Kishan Babwantrao Kulkarni,
Age : 35 years.
57] Lalitabai Udhavrao Jadhav,
Age : 35 years.
58] Sk. Mehboob Sk. Bashusahab,
Age : 45 years.
59] Vasant s/o Mukundrao Kasle,
Age : 42 years.
60] Usha w/o Tukaram Kulkarni,
Age : 30 years.
61] Neela w/o Dattatraya Kulkarni,
Age : 30 years.
62] Sunita Sunil Jirge,
Age : 25 years.
63] Sunil Ramrao Jire,
Age : 45 years
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64] Jagdish Neelkanthrao Kulkarni,
Age : 56 years.
65] Bhaulal Hanumanth Share,
Age : 43 years.
66] Shakuntala w/o Bhaurao Joshi,
Age : 48 years.
67] Meera w/o Vinod Hibare,
Age : 45 years.
68] Sunil Ramrao Jire,
Age : 45 years.
69] Kiran W/o Gopalrao Phadke,
Age : 40 years.
70] Gurukrupa Housing Society
71] Dhondopanth Babarao Kulkarni,
Age : 50 years.
72] Maruti Budrake,
Age : 55 years,
73] Fateh Modh. Ismail,
Age 54 years,
74] Mohd. Ismail Mohd. Hussain,
Age 51 years,
75] Vaijnath Devilal,
Age : 55 years,
76] Dattukishan Ghadge,
Age : 45 years.
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77] Syed Wali Mohd. Chandsaheb,
Age : 38 years,
78] Abdul Razzak Modhi Sahab,
Age : 60 years,
79] Manik Namdeo Wangaskar,
Age : 45 years.
80] Shaikh Abdul Sattar,
Age : 38 years.
81] Sheshrao Shamrao Adhav,
Age : 48 years.
82] Shaikh Mehboob Sk. Lal,
Age : 50 years.
83] Baburao Krushna Shinde,
Age : 57 years.
84] Sayaji Narayan Vasudev,
Age : 50 years.
85] Rambhau Shankar Chaugle,
Age : 45 years
86] Ramesh Shakarrao Kulkarni,
Age : 38 years.
87] Babumanik Vasudev,
Age : 40 years.
88] Kashibai Nurutti Dhangar,
Age : 54 years.
89] Santabai Rawan Vasudev,
Age : 45 years.
90] Mahadev Sitappa Bhade,
Age : 50 years.
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91] Rangnath Laxman Kadam,
Age : 52 years.
92] Shankarrao Vithalrao,
Kulkarni, Age : 48 years
93] Balayya Swami,
Age : 47 years.
94] Sushilabai Baliram Lokre,
Age : 39 years.
95] Kishan Babu Berde,
Age : 60 years.
96] Shankar Babu Bhandare,
Age : 47 years.
97] Sudrabai Narayan Thakur
Age : 45 years,
98-1] Gorakdajiba Ghade
Age : 45 years,
2] Sadashiv Limbaji Dhamal,
Age : 48 years,
99] Sambhaji Ganpat Madne,
Age : 45 years,
100] Baburao Gundeba Gondhale,
Age : 50 years.
101] Saharabi Sk. Ghodusahab,
Age : 60 years,
102-1] Hanuman Dattusingh,
Age : 30 years.
2] Subhash Dattusingh,
Age : 28 years
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103] Manohar Dattatraya Deshpande,
Age : 45 years
104] Sarubai Tulshiram Gondle,
Age : 55 years
105] Mohd. Yaqub Sahab,
Age : 60 years
106] Srimati S. Paulma Sinhapalli,
Age : 50 years
107] Aminabi Mehboob Saheb,
Age : 65 years
108] Shakuntalabai Sukhdeo Khandelwal,
Age : 56 years
109] Ranba Govinda Solkar,
Age : 45 years
110] Rukmaji Shamrao Durve,
Age : 48 years.
111] Ambubai Tukaram Hadve,
Age : 50 years
112] Malanbegum Sk. Mehboobsaheb,
Age : 60 years.
113] Ashabai Ismail Saheb,
Age : 62 years,
114] Prabhakar Vithalrao Kshirsagar,
Age : 35 years
115] Shrimant Tukaram Birajdar,
Age : 48 years.
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116] Rafat Sultana Begum W/o Sk. Abdul
Wahab Sahab, Age : 48 years
117] Prashsak, Nagar Palika
118] Haji Khan Goye Khan,
Age : 60 years
119] Vidyadhar Shridhar Rao,
Age : 46 years
120] Dilip Narayan Patel,
Age : 49 years.
121] Shamim Begum Abdul Lateef,
Age : 38 years.
122] Sk. Nazir Ismail,
Age : 40 years.
123] Sharad Shankarrao Halkude,
Age : 48 years.
124] Aminabi Abdul Khadar,
Age : 57 years.
125] Atiquinnisa Begum D/o. Habibuddin,
Age : 22 years.
126] Haji Abdul Karimuddin s/o Burhanuddin,
Age : 60 years.
127] Hasham Ali S/o Ahmed Ali,
Age : 55 years.
128] Rehanbi W/o Harun Basle,
Age : 39 years.
129] Syed Mehboob Ali Ashraf Ali,
Age : 38 years
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130] Mohd. Mustafa Osman Landge,
Age : 40 years
131] Sarabegum W/o. Osman Sahab,
Age : 37 years.
132-1] Janardhan Govind Sathe,
Age : 45 years.
2] Vilas s/o Govind Sathe,
Age : 40 years
133] Saifan Maqdoom Sahab Damre,
Age : 56 years.
134] Kazi Sultana Begum w/o
Minhajuddin, Age : 34 years
135] Kazi Sultana Begum w/o
Minhajuddin, Age : 34 years
136] Mustafa Osman Landge,
Age : 55 years.
137] Shaikh Abdul Sattar Rasool
Sahab, Age : 50 years.
138] Mehboob Qasim Sahab Hannure,
Age : 50 years.
139] Abdul Sattar Gulam Dastgir
Sahab, Age : 55 years.
140] Syed Ahmed Ali,
Age : 47 years
141] Kazi Sultana Begum W/o.
Minhajuddin, Age : 38 years
142] Madarsa Arbin Madinat-ul-Uloom.
143] Madarsa Abbia Madinatul Uloom
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Khori Galli, Latur.
144] Modh. Iftequar Ahmed Abdul Gaffar
Patel, Age : 45 years
145] Modh. Bin Galib Chaus,
Age : 50 years
146] Syd. Quddus Razak Miya,
Age : 45 years
147] Syed Jafar Ali Subhan Ali,
Age : 50 years
148] Safiya Begum w/o Abdul Samad,
Kazi, Age : 40 years
149] Mohd. Isaq Mehboob Saheb,
Age : 48 years,
150] Mohd. Mazharudding Mohd.
Moinuddin, Age : 45 years.
151] Mohd. Chause S/o Syed Galib
Chaus, Age : 50 years
152] Rasheeda Begum w/o Mushaik
Naeemuddin, Age : 38 years
153] Syed Jafar Ali Subhan Ali,
Age : 48 years.
154] Mahajabin Abdullah Munshi,
Age : 45 years
155] Kishwar Sultana Nooruddin,
Age : 35 years
156] Aaliya Mehraj Ahmed Sayed,
Age : 37 years
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157] Irshad Ali Subhan Ali,
Age : 34 years
158] Sultana Begum Nabiyar Khan,
Pathan, Age : 32 years
159] Mehmooda Nasreen w/o
Syed Yousuf Quadri,
Age : 42 years
160] Prashashak Nagar Palika,
Latur.
161] Rashidmiya Hussain Sab,
Age : 50 years
162] Khatoonbegum Syed Mehboob
Ali, Age : 42 years,
163] Kashinath Kishan Waghmare,
Age : 60 years
164] Sultanabegum Vazir Sab,
Age : 37 years
165] Imtiyazbe Qurban Ali,
Age : 50 years.
166] Noorjahan Abdul Sami,
Age : 38 years.
167] Noorunnisa Begum Sk.
Ibrahim, Age : 35 years.
168] Mohd. Khutbuddin Khajasaheb,
Age : 50 years.
169] Bismillah Sk. Jilani,
Age : 39 years.
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170] Nabiyar Khan Mehboob Khan,
Age : 58 years.
171] Vimalbai Ramesh Madrewar,
Age : 36 years.
172] Sherkhan Abdul Wahed Khan,
Age : 54 years.
173] Vimal Ramesh Madrewar,
Age : 36 years.
174] Nabiyar Khan Mehboob Khan,
Age : 58 years.
175] Bismillah w/o Mastan Khan,
Pathan, Age : 60 yrs.
176] Mehboob s/o Bakshu Sahab,
Karbade, Age : 55 yrs.
177] Meerabai w/o Nagnath Jadhav,
Age : 56 years.
178] Shaikh Gulab s/o Aauliya Saheb,
Age : 50 years.
179] Habib Sahab Habib Hussain Chouse,
Age : 60 years.
180] Azeemuddin s/o Allemuddin,
Age : 38 years.
181] Hasnabi w/o Shaikh Ahmed Sahab,
Age : 48 years.
182] Mohd. Bin Galib Chaus,
Age : 50 years.
183] Mohd. Khaja s/o Abdul Rehman,
Shaikh, Age : 45 years.
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184] Shakeela Begum w/o Maqsood
Ahmed Ansari, Age : 38 years.
185] Khaleedabi w/o Mohd. Jilani
Chause, Age : 55 years.
186] Shaikh Jafar Shaikh Shabbir,
Age : 36 years.
187] Shaikh Yakub Sahab Nadeem
Sahab, Age : 48 years.
188] Khalidabe w/o Modh. Jilani
Chause, Age : 55 years.
189] Shaikh Jabbar s/o Abdul Sahab,
Age : 50 years.
190] Khalidabi w/o Mohd. Jilani,
Age : 65 years.
191] Sajid Khan Jabbar Khan,
Age : 46 years.
192] Majed Khan Jabbar Khan,
Age : 40 years.
193] Syed Khaja Syed Haidar
Quadri, Age : 45 years.
194] Nazeer Abdul Gaffar Patel,
Age : 45 years.
195] Sk. Habib Basheer Sahab,
Age : 48 years.
196] Shaikh Farukh Shaikh Osman
Sahab, Age : 37 years.
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197] Mohd. Abdul Majed Sk.
Karimuddin Ausvee,
Age : 46 years.
198] Masab Ali S/o Gaffar Ali,
Age: 32 years.
199] Haji Gulam Samdani Mohd.Gulam Gaus,
Age : 50 years.
200] Kariman Begum Haji Shaikh,
Age : 58 years.
201] Nasima Begum W/o Mir Malikzafar Hasmi,
Age : 50 years.
202] Sk. Rasool Sk. Aamll Saheb,
Age : 60 years.
203] Azhar Mohammad Gazi S/o Sk. Mohd.
Ausvee, Age : 40 years.
204] Daulatbi Sk. Mehboob Sahab,
Age : 60 years.
205] Sk. Mehoob S/o Sk. Khaja Saheb,
Age : 58 years.
206] Syeda Begum W/o Shakeel Hamid Sahab,
Age : 59 years.
207] Bismillah bee W/o Abdul Rashid Sahab,
Age : 60 years.
208] Hafiz Sk. Abdul Jabbar Sk. Abdul Karim Sahab,
Age : 65 years.
209] Taleb Bin Aslam Saheb,
Age : 50 years.
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210] Shakera bee Abdul Majeed,
Age : 38 years.
211] Qamarbi W/o Ibrahim Sahab,
Age : 55 years.
212] Sailesh S/o Shivaraj Patil,
Age : 36 years.
213] Abdul Majid Abdul Kari,
Age : 39 years.
214] Shahjahan Begum W/o Sk. Zaheer Ahmed Sahab,
Age : 45 years.
215] Prashashak, Nagarpalika,
Latur.
216] Syed Maqsood Syed Chand Sab,
Age : 50 years.
217] Prayagbai Nagnathrao Agle,
Age : 38 years.
218] Ambaji Maruti Gaikwad,
Age : 56 years.
219] Hasinabi Shaikh Ahmed Sab,
Age : 50 years.
220] Ambaji Maruti Gaikwad,
Age : 56 years.
221] Shivaji Eknath Shirsagar,
Age : 45 years.
222] Abdul Razzak Haji Bakshu,
Age : 30 years.
223] Saida Sabha Begum Syed Lalsahab,
Age : 36 years.
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224] Khatunbi W/o Sk. Mehooob Sahab,
Age : 50 years.
225] Vithal S/o Fakira Kamble,
Age : 45 years.
226] Mohd. Ismail S/o Abbas Karim Sahab,
Age : 43 years.
227] Ramesh S/o Trimbak Madrewar,
Age : 34 years.
228] Meenabai W/o Balasaheb Tarte,
Age : 40 years.
229] Dr. Nazeer Ahmed Saheblal Inamdar,
Age : 35 years.
230] Kasturbai Chandrakant Swami,
Age : 45 years.
231] Prashashak, Nagar Palika,
Latur
232] Mehrunnisa Begum Abdul Karim,
Age : 38 years.
233] Wasimunnisa Begum Abdul Hamid,
Age : 40 years.
234] Akhtar S/o Lal Saheb,
Age : 50 years.
235] Khairunnisa Begum Zahid Hussain,
Age : 49 years.
236] Khatunbi Shaikh Mehboob Sahab,
Age : 60 years.
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237] Dilip Narayan Patil,
Age : 35 years.
238] 1] Vidyadhar
2] Shrisagar Raosaheb More,
Age : 28 and 26 years.
239] Khatunbegum Syed Mehoob Ali,
Age : 55 years.
240] Sk. Yakub Sk. Baban Sab,
Age : 48 years.
241] Prayagbai Nagnath Aagle,
Age : 45 years.
242] Mahboob bee Yakub Sahab,
Age : 55 years.
243] Mahboob Yakub Sahab,
Age : 55 years.
244] Kulsumbi Yaakub Sahab,
Age : 50 years .
245] Prayagbai Jagannath Hotkar,
Age : 45 years.
246] Gyandev Yashwant Jogdand,
Age : 60 years.
247] Mohd. Hussain Mohd. Latif ,
Age : 50 years.
248] Subashchandra Shirsagar Pawar,
Age : 60 years.
249] Halimabe Khudubuddin Sahab,
Age : 45 years.
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250] Shaikh Maqbool Sk. Kadar,
Age : 40 years.
251] Syed Abdul Karim Syed Abbas Ali,
Age : 35 years.
252] Chotibegum Ismailsahab,
Age : 50 years.
253] Babysaharabi Abdul Karim Sab,
Age : 45 years.
254] Abdul Sattar Dastageer,
Age : 32 years.
255] Ismail Khan Akbar Khan,
Age : 36 years.
256] Vazir Papamiya,
Age : 30 years.
257] Nasen Bin Galib,
Age : 28 years.
258] Baburao Arjun Kamble,
Age : 45 years.
259] Mohd. Bin Galib,
Age : 34 years.
260] Abdul Karim Allauddin,
Age : 38 years.
261] Salauddin Abdul Karim,
Age : 30 years.
262] Chandbi Mehboob Sahab,
Age : 40 years.
263] Mohd. Shafiuddin Nizamuddin,
Age : 38 years.
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264] Mod. Khaja Mohd. Shrvar,
Age : 38 years.
265] Sk. Abdul Waheed Abubakar,
Age : 31 years.
266] Khaja Abdul Wahab Khaja,
Age : 32 years.
267] Baburao Arjun Kamble,
Age : 48 years
268] Baban S/o Mahadeo Hatkar,
Age : 48 years.
269] Bismillah Bee W/o Shamsuddin Mulla,
Age : 60 years,
R/o. Tq. Shirur Anantpal,
Dist. Latur.
Respondent Nos.16 to 268 all
Occu.: Agriculture, All R/o.
Khori Galli, Latur, Dist.Latur.
270-a] Noorullah Khan S/o Karimullah Khan,
Age : 45 years, Occupation Fabrication,
R/o.Single Camp, Latur, Dist. Latur.
271-b] Sadeq S/o Karimullah Khan,
Age : 34 years, Occ. Fabrication,
R/o. Signal Camp, Latur,
Dist. Latur.
[Appellant No.4 Hanifunnisa Begum w/o.
Karimullah Khan - since died -
Respondent Nos.270 (a) & 271(b) are L.Rs.
Of Appellant No.4]
RESPONDENTS
( No. 270 & 271- Ori. Plaintiffs)
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First Appeal 269 of 2006
24
...
Mr.N.V.Gaware h/f Mr.G.K.Sontakke Advocate for
Appellants.
Mr. R.S.Shaikh, Advocate for Respondent No.1.
Mr.P.M. Shah, Senior Advocate, for Respondent No.2
Mr. P.R. Patil, Advocate, for Respondent No.3
Mr.R.N. Dhorde, Senior Advocate, for Respondent No.4
Mr. V.B. Jadhav h/f Mr.V.D. Hon, Advocate for
Respondent No.5
Mr. S.G.Rudrawar, Advocate for Respondent No.6
Appellant Nos.1-A, is added as per Court's Order dated
8.10.2007 in Civil Application No.467 of 2007.
Respondent Nos. 1-B, 1-C are added as per Court's Order
dated 8.10.2007 in Civil Application No.467 of 2007.
Appellant No.2 is deleted as per Court's Order dated
19.11.2014 in Civil Application No.3408 of 2012.
Respondent Nos.9, 11 & 12 are deleted as per Court's
Order dated 29.8.2005.
Heirs of Respondent Nos.14 & 15 of deceased Appellant
No.2 are taken on record as per Court's Order dated
19.11.2014 in Civil Application No.3408 of 2012.
Respondent Nos.16 to 271 are deleted as per Court's
Order dated 11.2.2005.
...
CORAM : R.D.DHANUKA AND
SUNIL K. KOTWAL JJ.
Reserved on : 8th September, 2017
Pronounced on : 13th October, 2017
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First Appeal 269 of 2006
25
JUDGMENT ( PER R.D.DHANUKA J.)
1] By this First Appeal, the appellants (original
plaintiffs) have challenged the impugned order passed
by the learned Civil Judge, Senior Division, Latur, dated
10th December, 2003 below Exhibit No.1 and also
challenged the composite order passed below Exhibit
Nos. 260 and 268, in Special Civil Suit No. 219 of 1996
dated 10.12.2003 by the learned Civil Judge, Senior
Division, Latur.
2] By the said order dated 10th December, 2003,
the learned Civil Judge, Senior Division, Latur, had
allowed the application filed by some of the defendants
below Exhibit No.1 dismissing the entire suit as abated
in view of the plaintiffs' failure to bring on record the
legal representative of the alienees and in view of the fact
that the suit had also abated against some of the
alienees. The learned Trial Judge also dismissed the
application filed by the plaintiffs for deletion of the name
of the alienees i.e. defendant No.16 to defendant No.
First Appeal 269 of 2006
271(B).
Some of the relevant facts for deciding this appeal
and the civil applications are as under :-
3] The parties described in this appeal are described
as per their status in the trial Court proceeding.
4] Mr. Hamid Ali Khan had two wives Qamarbano ( 1 st
wife) and Zeban Bano ( 2nd wife). The said first wife
Qamarbano had a son by name Mahaboob Ali Khan. The
second wife of the said Hamid Ali Khan i.e. Zeban Bano
had a son namely Osman Ali Khan. The said Mahboob
Ali Khan and Osman Ali Khan died leaving behind him
his widow Umrao Bano and second wife Sharfan Bano.
The son of the said Mahboob Ali Khan died during the
life time of Umrao Bano. The second wife of Mahboob Ali
Khan also died leaving behind 2nd daughter namely Noor
Bano and Abed Bano (plaintiff No.1) and son Hamid Ali
Khan. The Noor Bano died leaving behind the plaintiff
Nos.3,4,5,,6,13 and a son by name Abdul Hasan. The
said son Abdul Hasan died leaving behind the plaintiff
No.2 and defendants Nos.14 and 15.
First Appeal 269 of 2006
5] On the other hand, Hamid Ali Khan, who was
son of Sharfan Bano, died leaving behind defendant Nos.
1 to 12. The plaintiff No.1 was the real sister of Hamid
Ali Khan and other plaintiffs are the daughters of
deceased Noor Bano, who is also real sister of Hamid Ali
Khan. The defendant Nos.1 to 12 are the sons and
married daughters of Hamid Ali Khan and defendant
Nos. 13,14 and 15 are grandsons of deceased Noor Bano.
6] It is the case of the plaintiffs that the suit
agricultural lands shown in Schedule ''A'' in all
admeasuring 135 Acres and 8 Gunthas was given by
Hamid Ali Khan to his first wife in view of her right for
Mehar whereas the other properties were given to Zeban
Bano - the second wife.
7] Various proceedings came to be filed between
Osman Ali Khan S/o Amir Ali Khan as plaintiff and
Hamid Ali Khan as defendant, such as Regular Civil Suit
No.315 of 1344. There were other proceedings also
amongst family members of the defendants Nos.1 to 14.
First Appeal 269 of 2006
It is the case of the plaintiffs that suit agricultural lands
were owned and possessed by the first wife Qamar Bano.
After death of Qamar Bano, her son Mehboob Ali Khan
became the sole owner and possessor of the lands. On
the death of Mehboob Ali Khan, the properties i.e. the
agricultural lands stood devolved upon his two widows
Umrao Bano & Shragan Bano, Umrao Bano was the
senior widow. It is the case of the plaintiffs that the
entire management of the properties was jointly
inherited, owned and was being looked after by Hamid
Ali Khan for himself and also on behalf of his two sisters.
Hamid Ali Khan held half share and his two sisters each
held 1/4th share.
8] The State of Maharashtra acquired some portions
from and out of lands Survey Nos.211 and 212 and also
Survey Nos.208 and 209. Hamid Ali Khan claimed the
amount of Rs.2,01,50,580-00 in respect of the said
acquired lands before the Land Acquisition Officer. The
Land Acquisition Officer determined the various amount.
First Appeal 269 of 2006
9] It is the case of the plaintiffs that Mr.Hamid Ali
Khan and his two sisters had undivided and joint
interest over the said properties as co-owners thereof and
that the said Hamid Ali Khan and his sons and
daughters took possession of properties illegally. It is
the case of the plaintiffs that Hamid Ali Khan had no
right at all under Mohammedan Law to transfer either
by way of partition, gift, Hibba or in any other way, the
properties of co-ownership and thus the legal heirs of the
said Hamid Ali Khan could not have claimed exclusive
ownership in respect of those properties at the hands of
the defendants allegedly in the possession of the
defendants Nos.1 to 12. The plaintiffs accordingly
sought partition and possession of the suit properties
which were allegedly at the hands of the defendant Nos.1
to 12.
10] The defendant Nos.1 to 12 had denied the said
demand by letter dated 15th May, 1996. According to the
plaintiffs, cause of action thus arose when the defendant
Nos.1 to 12 denied the share of the plaintiffs and to make
First Appeal 269 of 2006
partition of the suit properties. The plaintiffs accordingly
filed a suit on 12th December, 1996, inter alia praying for
possession by way of partition of the lands and also the
house properties shown under the Schedules I and II to
the extent of 3/8th share and also prayed for directions
against the defendants to deliver the possession thereof.
The plaintiffs also prayed for a decree to recover amount
of Rs.13,980.76-75 Paise against the defendants Nos.1 to
12. The plaintiffs also sought declaration that the
plaintiffs are entitled to receive their proportionate share
from and out of compensation amount as determined
under the said Reference filed by Hamid Ali Khan and
after his death, as continued by the defendant Nos.1 to
12. The said suit was resisted by the defendants Nos.1
to 12 by filing written statement 14th October, 1999.
11] On 3rd February, 2003, the learned Trial Judge
recasted the issues which were framed on 14 th October,
1999. The re-casted Issue No.4 was -
"Whether defendants 2 to 6 and 8 to 12, in the
alternative, prove that Hamid Ali Khan perfected
First Appeal 269 of 2006
his title to suit properties by adverse possession ?"
The issue No.8 was -
"Whether defendants 102( 1 & 2), 103,191, 192 and
193 prove, in the alternative, that they have
perfected their title to the property by adverse
possession ?"
The Issue No.10 was -
"Whether suit is bad for non-joinder of necessary
parties ?"
12] In the written statement filed by the defendant
Nos. 1 to 12, it was their case that the said Hamid Ali
Khan was exclusive owner and possessor of the suit
lands. It was alleged that the said Hamid Ali Khan had
remained in exclusive, continuous and open possession
and enjoyment of the properties described in Schedules I
and II as exclusive owner and possessor, to the
knowledge of all including the plaintiffs and defendants
Nos.13 to 15 and their ancestors. In the additional
written statement, it was brought on record by the
defendant Nos.1 to 12 that large number of properties
described in Schedules I and II were already sold and
First Appeal 269 of 2006
transferred by the said Hamid Ali Khan in favour of
several parties.
13] On 1th March, 2000 some of the defendants filed
application ( Exhibit 58) inter alia praying for framing
preliminary issue of non-joinder of the necessary parties.
On 7th April, 2000, the learned Trial Judge framed a
preliminary issue i.e. '' Whether the suit is incompetent
for non-joinder of the necessary parties ?''. The said
order was not challenged by the plaintiffs.
14] On 3rd May 2000, the plaintiffs filed an application
(Exhibit 64) in the said suit inter alia praying for time to
implead necessary parties. On 10 th July, 2000, the
learned Trial Judge passed an order below (Exhibit 64)
granting time to the plaintiffs to implead necessary
parties. On 8th September, 2000, the plaintiffs filed an
application (Exhibit 68) for carrying out amendment of
the plaint to add 252 defendants.
15] On 17th November, 2000, summons were issued to
First Appeal 269 of 2006
the added defendants. On 27th November, 2000, the
Bailiff submitted report that some of the defendants had
expired. On 20th November, 2002, the plaintiffs filed
Pursis ( Exhibit 212) to pass appropriate order against
the defendants who had expired. On 4 th December, 2002,
the learned Civil Judge, Senior Division, passed order of
abatement against the dead defendants. The said order
was not challenged by the plaintiffs.
16] On 7th February, 2003 the learned Civil Judge,
Senior Division, passed an order below Exhibit 232 for
hearing of the preliminary issue. On 27th February, 2003,
the learned Trial judge allowed the said application
(Exhibit 232) for framing preliminary issue. On 13 th
March, 2003, the plaintiffs filed an application (Exhibit
235) inter alia praying for review of the order passed by
the learned Trial Judge on 27th February, 2003 below
(Exhibit 233). On 5th April, 2003, the learned Trial Judge
dismissed the said application (Exhibit 235). The said
order was not challenged by the plaintiffs.
First Appeal 269 of 2006
17] On 16th July, 2003, the learned Trial Judge
passed an order below Exhibit No.1. By the said order
dated 16th July, 2003, the learned Trial Judge held that
the suit suffered from non-joinder of the necessary
parties. The defendant Nos.2 to 6, 8 to 12 had placed
on record several documents in which names of
transferees had been specified, who were not joined as
parties to the suit. The learned Trial Judge considered
the arguments of the defendant Nos.2 to 6, 8 to 12 that
the said Hamid Ali Khan had sold several plots from the
part and parcel of the suit properties. Son of Hamid Ali
Khan had also sold number of plots. There were nearly
400 instances of the subsequent transfer of the suit
properties in favour of various alienees, pursuant to
which the names of the purchasers had been entered in
the City Survey record.
18] It was contended by those defendants that
those purchasers had not been added as defendants and
thus the suit itself was bad for non-joinder of the
necessary parties. It was contended by those defendants
First Appeal 269 of 2006
that out of 135 Acres of land, around 100 Acres of land
was in actual possession of the purchasers who were not
impleaded as parties to the suit. The learned Trial
Judge, after recording these findings, however, held that
instead of dismissing the suit at once, it was proper to
give an opportunity to the plaintiffs, to implead
subsequent transferees as a party defendants, within
four weeks from the date of the said order. The plaintiffs
thereafter filed an application on 13 th August, 2003
(Exhibit 245) for adding defendant Nos.270 to 828. On
11th September, 2003, the plaintiffs filed an application
(Exhibit 252) inter alia praying for not passing any order
for two weeks.
19] The learned Trial Judge accordingly
adjourned the matter for two weeks. On 3 rd September,
2003, the plaintiffs filed an application (Exhibit 260) for
seeking permission to withdrew suit against the
defendant No.16 onwards. The said application was
opposed by the defendants by filing reply on 13 th
October, 2003.
First Appeal 269 of 2006
20] On 20th October, 2003, some of the
defendants filed an application (Exhibit 268) inter alia
praying for abatement of the suit in entirety. On 10 th,
December, 2003 the learned Trail Judge, dismissed the
application filed by the plaintiff (Exhibit 260) seeking
withdrawal of the suit against the defendant No.16
onwards. On 10th December, 2003, the learned Trial
Judge allowed the application (Exhibit 268) filed by those
defendants inter alia praying for abatement of the suit in
the entirety. On 8th March, 2004, the plaintiffs filed
Appeal From Order in this Court inter alia challenging
the order passed by the learned Trail Judge below
(Exhibits 260 and 268). On 7 th April, 2004, the plaintiffs
withdrew the said Appeal from Order as not maintainable
and thereafter filed this First Appeal on 16 th September,
2016 along with Civil Application for condonation of
delay.
21] On 11th February, 2005, this court allowed the Civil
Application No.700 of 2004 filed by the plaintiffs inter
alia praying for deletion of the defendants Nos.16 to 271
First Appeal 269 of 2006
from the array of the respondents. It was however, made
clear in the said order that deletion of those respondents
was at the risk of the respondents. On 29 th August,
2005, the plaintiffs filed a Civil Application bearing
No.720 of 2004 in this Court for deletion of the defendant
Nos. 9,11 & 12. The said Civil Application was allowed by
this Court. On 4th April, 2005, the defendant No.3 filed a
Civil Application bearing No.1128 of 2008 inter alia
praying for dismissal of the First Appeal for non-joinder
of necessary parties.
22] Mr.N.V. Gaware, learned counsel for the
plaintiffs, invited our attention to various annexures to
the First Appeal and also to the separate compilation of
the documents filed by the parties in the First Appeal.
He also invited our attention to the impugned order
passed by the learned Trial Judge. The learned counsel
for the plaintiffs made following submissions for
consideration of this Court.
(I) The original defendants Nos.1 to 5 were the co-
heirs and were entitled to share in the suit
First Appeal 269 of 2006
properties along with the plaintiffs. Some of the
defendants have sold their shares to third parties.
Those third parties were impleaded as defendants
Nos.16 to 269.
(II) There was no concept of co-parcenery in view
of the fact that the plaintiffs and the defendants
Nos.1 to 12 were Mohammedan. Shares of the co-
heirs are also fixed in the Mohammedan Law which
is applicable to these parties and were not required
to be heard in the suit for partition filed by the
plaintiffs. The defendant Nos.16 to 269 were
alienees who had alleged to have purchased various
portions of the undivided share of the defendants
Nos.1 to 5 in the suit properties.
(III) Reliance is placed on the genealogy of the
family produced on record. Reliance is also placed
on the compromise decree between the plaintiffs
and the defendant Nos.1,7, 13 to 15. The suit came
to be abated by an order dated 4 th December, 2002
against some of the defendants who expired. The
learned Trial Judge dismissed the entire suit as
First Appeal 269 of 2006
abated by an order dated 10th December, 2003, on
the ground that the plaintiffs had failed to bring on
record the legal representatives of the alienees and
also on the ground that the suit had already been
abated against some of the alienees by relying upon
the Order Order XXII Rule 4 of the Code of Civil
Procedure, 1908.
(IV) The alienees who claimed right, title and
interest in respect of some of the suit properties
were neither necessary nor proper parties in a suit
for partition and possession filed by the legal heirs
of the original owners. The alienees would at the
most step into the shoes of the vendors and had no
exclusive right. The substantive prayer in the plaint
is only against the co-heirs. Separate and
independent proceedings can be filed against the
subsequent purchasers by the plaintiffs after the
suit for partition and possession is decreed by the
learned Trial Judge.
were tenants in common in the suit. Even if the
First Appeal 269 of 2006
alienees or their legal representatives would not
have been brought on record as party defendants,
the suit could not have been dismissed in entirety.
Even if the legal heirs of some of the defendants
were not brought on record, under Order XXII Rule
2 of the Code of Civil Procedure, 1908, the entire
suit could not have been abated. The impugned
order passed by the learned Trial Judge is contrary
to Order XXII Rule 4 of the Code of Civil Procedure,
1908, and against the principles of law laid down
by the Supreme Court and this Court. Finding of
the learned Trial Judge in the impugned order that
there was adverse claim of the defendants and
alienees is ex-facie incorrect. There were definite
and separate claims of the individuals. The alienees
would claim only through the defendants Nos.1 to
12 and not individually. Subsequent purchasers
can always claim possession subsequently but
cannot claim joint share along with co-heirs.
VI] Reliance is placed on Order XXII Rules 1 and
4 of the Code of Civil Procedure, 1908, to contend
First Appeal 269 of 2006
that the right to sue survives against the remaining
defendants even if some of the alienees would have
been deleted or even if the legal heirs of some of
the legal representatives, which were already
impleaded, were not brought on record. Reliance is
also placed Order XXII Rule 3 of the Code of Civil
Procedure in support of the submission that suit
stands abated only against the deceased
defendants and not in the entirety. No separate
order is required to be passed by the Court for
abatement of the suit against the defendants who
had expired and even their legal representatives are
not brought on record under Order XXII Rule 3 of
the Code of Civil Procedure, 1908.
VII] The application made by some of the
defendants (Exhibit 268) for dismissing the suit in
its entirety as abated itself would not be
maintainable and was without any legal basis
and more particularly when the suit was being
proceeded for recording of evidence. Issues were
also framed including the issue as to whether the
First Appeal 269 of 2006
suit was bad for non-joinder of the necessary
parties after framing the preliminary issue. The
learned Trial Judge could not have entertained the
application by some of the defendants for dismissal
of the suit in entirety as abated for not bringing the
legal heirs of some of the alienees, who had expired
during the pendency of the suit.
VIII] The application (Exhibit 260) was made by the
plaintiffs for deletion of the those defendants
Nos.16 onwards as the plaintiffs did not want to
pursue the suit against those alienees. Some of
the alienees were dead after their impleadment as
party defendants. The address of some of the
alienees, who were impleaded as party defendants,
was not described by the plaintiffs and hence,
service of summons was not completed. The Bailiff
has submitted report accordingly.
(IX) The hearing of the suit was unnecessarily
delayed, which was totally attributable to the
defendants. The plaintiffs had rightly applied for
deletion of the defendants No.16 onwards from the
First Appeal 269 of 2006
cause title of the plaint. None of the alienees had
filed any application for impleadment of the legal
heirs of those deceased legal alienees or for
dismissal of the suit in entirety as abated. The
application was filed by the some of the co-heirs
deliberately with a view to delay the outcome of the
suit and not to proceed with the trial in near future.
No such application, made by some of the co-heirs
for dismissal of the suit as abated, could have been
entertained by the learned Trial Judge.
X] Various observations made by the
learned Trial Judge in the impugned Order dated
16th July, 2003 below Exhibit 1 were made out of
the context and without any basis. The said
impugned order of dismissal of the suit in entirety
as abated passed by the learned Trial Judge
requires to be set aside.
XI] Reliance is placed on the Order I, Rule
10 (II) of the Code of Civil Procedure, 1908 to
contend that the Court may strike out or add any
party to the suit at any stage even on application of
First Appeal 269 of 2006
any of the party or even suo-moto. Merely because,
at one stage, the plaintiffs had impleaded defendant
Nos. 16 to 271 as defendants, who claimed to be
the alienees, the plaintiffs were entitled to file
application for deletion of their names at any stage
of the proceedings, as they were neither necessary
parties nor proper parties according to the
plaintiffs.
XII] Reliance is placed on Order I, Rule 9 of the
Code of Civil Procedure, 1908 and it is submitted
that no suit shall be entertained with the mis-
joinder or non-joinder of the parties. The Trial
Court could not have decided the preliminary issue
after framing of issues under Order XIV Rule 2 of
the Code of Civil Procedure, 1908. The learned Trial
Judge, therefore, ought to have decided all the
issues together under Order XIV Rule 2 of the Code
of Civil Procedure, 1908. The learned Trial Judge,
however, committed a complete failure of justice by
deciding the preliminary issue after framing of
issues under Order XIV Rule 2 of the Code of Civil
First Appeal 269 of 2006
Procedure, 1908. There was no bar to file a suit,
subject matter of which was for partition and
separate possession filed by the plaintiffs. The
issue as to whether the suit filed by the plaintiffs
would stand abated or not, partly or fully, also
could have been decided at the time of trial.
XIII] The application filed by defendant Nos. 2
to 6 and 8 to 12 (Exhibit 268) for abatement of the
suit was not filed under any provision of the Code
of Civil Procedure 1908, and thus, ought to have
been dismissed on this ground alone by the learned
Trial Judge. The learned Trial Judge had, thus, no
jurisdiction to entertain any such application which
was filed not under any provision of the Code of
Civil Procedure, 1908.
XIV] The share of the plaintiffs and co-heirs,
being Muslim, were already fixed and would not
fluctuate in spite of the sale of the undivided share
by any of the co-heirs in favour of the third party.
Only the co-heirs in the family were necessary and
proper parties to the suit for partition and
First Appeal 269 of 2006
possession and not the alienees.
XV] The inheritance in this case opened after the
death of the ancestor whose property is claimed by the
parties by way of inheritance. Reliance is placed on
various paragraphs from the commentary of Mulla
on Mohammedan Law in support of these submissions
which read thus :
Commentary on Mohammedan Law :-
Son gets double share of the daughter under the
Mohammedan Law applicable to the Suni.
XVI] There was no likelihood of any
conflicting decrees in this case i.e. one decree
against the co-sharer and another against the
alienees in view of lis-pendens as also subsequent
purchasers were not required to be impleaded as
party to this suit. Suit at the most could have been
dismissed only against those alienees - defendants
who had expired.
XVII] Reliance is placed on the judgment of
First Appeal 269 of 2006
the Supreme Court in case of Shahazada Bi Vs.
Halimabi ( Since Dead) By Her Lrs. (AIR 2004 (SC)
3942) and in particular paragraph Nos.2 to 9 in
support of the submissions that since the interest
of the co-defendants were separate as in case of co-
owners, the suit would be abated only against
them claiming particular of the interest of the
deceased parties.
XVIII] The appeal can stand abated as against
the deceased respondent under Order XXII Rule 4
(3) read with Order XXII Rule 11 of the Code of Civil
Procedure where no application is made to implead
the legal representatives of the deceased defendants
/ respondents. A decree can be said to be
inconsistent or contradictory with another decree
only when two decrees are incapable of enforcement
and that enforcement of one would negate the
enforcement of the other.
XIX] Reliance is placed on the judgment of
Allahabad High Court in case of M.T. Zabaishi
First Appeal 269 of 2006
Begam Vs. Naziruddin Khan and others (AIR 1935
Allahabad, 110) and in particular on page No.115
in support of the submissions that the interests
acquired by the heirs of a deceased Mohammedan
in his property are always definite, distinct and
ascertained, and as such the absence of one co-
heirs from a suit brought by another co-heirs for
possession of his share cannot be a ground for
dismissing the suit in entirety.
XX] Reliance is placed on the judgment of
the Supreme Court in case of Chhaganlal Keshavlal
Mehta Vs. Patel Narandas Haribhai (AIR 1982
Supreme Court 121) and in particular para No.18
in support of their submissions that even if the
legal heirs of the some of the alienees were not
brought on record by the plaintiffs, the suit could
not be abated as against the other surviving
defendants and the plaintiffs were not legally
barred from proceeding with the suit against the
surviving defendants.
First Appeal 269 of 2006
XXI] Reliance is placed on the judgment of
the Supreme Court in case of Assiz Vs. Chithamm
(AIR 1954 Travancore-Cochin 370) and in
particular paragraph No. 20 in support of the
submissions that in a suit by an heir for the
recovery of his share, the co-heirs are proper
parties but as the interest of the heirs are distinct,
the omission to join a co-heir is not a good reason
for dismissing the suit.''
XXII] Reliance is placed on the judgment of
the Supreme Court in case of Syed Shah Ghulam
Ghouse Mohiuddin Vs. Syed Shah Ahmed
Mohiuddin Kamisul Quadri (1971 AIR (SC) 2184)
and in particular paragraph No.21 in support of the
submissions that in Mohammedan Law the
doctrine of partial partition is not applicable
because the heirs are tenants-in-common and the
heirs of the deceased Muslim succeed to the
definite fraction of every part of his estate. The
share of heirs under Mohammedan Law are definite
First Appeal 269 of 2006
and known before actual partition. Therefore on
partition of properties belonging to a deceased
Muslim, there is division by metes and bounds in
accordance with the specific share of each heir
being already determined by the law.
XXIII] Reliance is also placed on the judgment
of this court in the case of Abbas Abdul Mhalter
and another Vs. The Director Resettlement and
others (AIR 1997 Bombay 237) and in particular
para No. 6 and 7 in support of the submission that
in so far Mohammedan are concerned the heirs of
the deceased Mohammedan hold the property as
tenants-in-common having specified share therein.
XXIV] Reliance is also placed on the judgment
of the Privy Council in the case of M.T. Zabaishi
Begam v. Naziruddin Khan (AIR 1935 Allahabad,
110) and in particular paragraph Nos.15 to 19 in
support of the submission that no suit shall be
defeated by reason of non-joinder of parties and
suit could have been dismissed at the most as
First Appeal 269 of 2006
abated only against those defendant whose legal
heirs were not brought on record by the plaintiff
and not in the entirety.
XXV] Reliance is also placed on the judgment
of Kashmir High Court in case of Khazir Bhat Vs.
Ahmad Dar and others ( AIR 1960 JAMMU AND
KASHMIR 57) and in particular paragraph No.6 in
support of the submission that the doctrine of
survivorship is not known to Mohammedan Law to
the heirs of a deceased Mohammedan who succeed
to a definite fraction of every part of his estate. The
specific share of each of the heirs is also
determined by the law itself and on partition only
distribution by metes and bounds and separate
possession and enjoyment of the specific items of
the properties is happened.
XXVI] Reliance is placed on the judgment of
Madras High Court in the case of Haji Mohamed
Abdullah and others Vs. C. Abdul Rahiman and
others (AIR 1964 Madras 234) and in particular
First Appeal 269 of 2006
para No. 1 in support of the submissions that
under the Mohammedan law, the heirs inherit their
share for the definite fractions. When there are
several heirs and each of them owns a definite
fraction, they are all joint co-owners or tenants-in-
common. Each of the heirs become entitled to his
definite fraction of every part of a estate.
XXVII] Reliance is placed on Mohammad
Subhan Vs. Dr. Misbahuddin Ahmad &other( AIR
1971 Rajasthan 274 ) Page No. 54 and in
particular paragraphs Nos. 23, 24 and 36 in
support of the submissions that in case of
Mohammedan Law each of the heirs get definite
share.
XXVIII] The reliance is placed on the judgment
of the Supreme Court in case of Beharilal Vs. Bhuri
Devi (AIR 1997 (SC) 1879) and in particular
paragraphs No. 8 and 9 in support of the
submission that the suit for non joinder of the legal
heirs of some of the alienees defendants could not
First Appeal 269 of 2006
have been dismissed on the ground of non joinder
of the necessary parties in view of the fact that the
issues framed under Order 14 Rule 2 included the
said issue and the evidence was likely to start in
the matter.
XXIX] Reliance is placed on the decision of the
Supreme Court in the case of Rukmani Ammal Vs.
Jagdeesa Gounder (AIR 2006 (SC) 276) and in
particular paragraph No.20 in support of the
submissions that even if the legal heirs of some of
the alienees defendants were not brought on
record, at the most decree in favour of the
plaintiffs would not bind such parties. However, the
suit on that count could not have been dismissed
on its entirety.
XXX] The reliance is placed on the judgment
of this court in case of Waman Nago Choudhari &
Ors. Vs. Mahadu Nago and Brothers & Others
(2011(4) Bombay Cases Reporter 632) and in
particular paragraph Nos. 7 and 8 in support of the
First Appeal 269 of 2006
submission that since alienees who expired , in a
suit for partition and possession, were not
necessary parties for complete and final
adjudication of the question involved in the suit.
Such, legal heirs of the alienees of the deceased
alienees also therefore were not necessary parties
under Order 1 Rule 10 (2) of the Code of Civil
Procedure, 1908. The plaintiff could not have been
forced to join the other alienees and legal heirs of
alienees. Some of the plaintiffs are ladies and to
implead those large number of alienees at the first
instance and thereafter to implead legal heirs of the
deceased alienees was causing substantial delay in
the proceeding. Suit was filed in the year 1996.
Though an order was passed by the Court to decide
the said suit by 2002, the evidence in the suit could
not be started due to frivolous application filed by
the co-heirs. More than 600 parties are claiming to
be alienees as on today. Issue of non-joinder of
parties could be gone into by the learned trial
judge, during the course of oral evidence in the
First Appeal 269 of 2006
suit. The procedural law is meant to advance the
cause of justice. No relief have been claimed by
the plaintiffs against those alienees/ purchaser.
XXXI] Reliance is placed on the judgment of
this court in case of Vitthal Bapu Mane Vs.
Balasaheb Sidhu Masal and others (2017(3)
Mh.L.J. 232) in support of the submissions that in
a suit for partition by a coparcener, after alienation
of the certain property by a co-parcener, it is not
necessary to seek a specific declaration for setting-
aside alienation in favour of the purchaser.
23] Mr.P.M. Shah, the learned Senior Counsel for
the defendants No.2, on the other hand, invited our
attention to various averments made in the plaint and
also the prayers. He also invited our attention to
various annexures to the plaint, compilation of the
documents and various orders passed by the learned
Trial Judge from time to time. The learned Senior
Counsel made the following submissions :-
First Appeal 269 of 2006
(a) The suit, as filed by the plaintiffs, itself is not
properly constituted. All the properties of the
estate are not properly included. The entire estate
of the deceased is not before this Court. All the co-
sharers or co-owners of the of the suit properties
are not impleaded as parties to the suit.
(b) The plaintiffs have not only prayed for
partition of the suit properties in this suit, but also
for separate possession of all the properties. Most
of the suit properties are already sold by the
defendant No.1 much prior to the date of filing of
the suit. Large number of alienees are in physical
possession of those properties under various
documents including registered documents as
owners. Since the plaintiffs have prayed for recovery
of possession also in respect of those plots, which
are already sold much prior to the date of filing of
suit or thereafter, such relief of possession in
respect of such properties cannot be granted by the
Court without impleading such alienees as party to
First Appeal 269 of 2006
this suit. The parties in possession of such
properties will be necessary parties. Attention of
this Court is invited to the prayers made in the
plaint. The reliefs are sought in respect of the
properties in the hands of the transferees.
(c) No effective decree could have been passed by
the learned Trial Judge in respect of such
properties which are in possession of the
transferees without impleading them or even
without impleading the legal heirs of some of such
transferees as parties to the suit. Though decree
can be passed in respect of the remaining
properties, no executable decree can be passed by
the learned Trial Judge against the transferees,
who were not parties to the suit. The details of the
properties already transferred by the co-hearers are
already on record to the knowledge of the plaintiffs.
The application for amendment was made by the
plaintiffs based on those details.
(d) The issue of lis pendens raised by the
First Appeal 269 of 2006
plaintiffs is not applicable to the transactions of
sale effected much prior to the filing of the suit.
The transferees of various properties forming part
of the suit lands are claiming through Mehboob
Khan, who expired in the year 1915. The
succession in respect of those properties, even
according to the plaintiffs, were opened in the year
1915. The plaintiffs are claiming share of said
Mehboob Khan in this suit after more than 81
years.
(e) There was a suit filed by the two daughters of
the Mehoob Ali Khan against Mr.Hamid Ali Khan
and successors of Hamid Ali Khan. Some of such
litigants are also referred in the plaint itself by the
plaintiffs. The co-heirs, who were in possession of
the suit properties, also acquired title by adverse
possession. The suit filed by the plaintiffs is not
only for the title, but also for partition and separate
possession.
(f) Hamid Ali Khan had four sons and seven
First Appeal 269 of 2006
daughters. The defendant Nos.1 to 4 who are his
sons and defendant Nos. 6 to 12 are his daughters.
In paragraph 18 of the plaint, 1/2 share of the
defendant Nos.1 to 12 is admitted in the suit
properties. The remaining 1/2 share is claimed by
the Noor Bano and Abeda Bano equally. There was
compromise between plaintiffs and the some of the
defendants i.e. defendant Nos.1 and 7. The
defendants Nos.13,14,15 have also compromised
the dispute, who are the successors of Noor Bano.
The plaintiffs did not proceed against the defendant
Nos.1 and 7 in view of the compromise decree
(Exhibit 24). Reliance is placed on order passed by
the Court regarding compromise on 4 th September,
2001.
(g) The defendant Nos.2 to 6 and 8 to 12 are not
consenting parties to the compromise. The
plaintiffs have deleted the defendant Nos. 1 and 7
who were admittedly the co-owners of the suit
properties and thus the suit is bad for non-joinder
of the necessary parties. Those properties which
First Appeal 269 of 2006
were subject matter of the compromise are not
available for partition today. The defendant No.1
himself had sold 68 properties, the details of which
are annexed at page no.51 of the compilation.
(h) The plaintiffs themselves filed an application
(Exhibit 64) for impleading the alienees as
necessary parties to the suit. The alienees had also
filed separate application. The application of the
plaintiffs for impleadment was allowed by the
learned Trial Judge. Mr.Jamseth Amir Khan, who
was one of the transferees and purchaser of one of
the properties by way of sale-deed executed in the
year 1985 is also not made party.
(i) The plaintiffs also undertook to implead those
persons as party - defendants to preempt that no
preliminary issue shall be decided by the learned
Trial Judge and accordingly agreed to implead all
the alienees. On the application of the plaintiffs,
the learned Trial Judge allowed the plaintiffs to
carry out amendment and to implead the alienees.
The learned Trial Judge had given opportunity to
First Appeal 269 of 2006
the plaintiffs to avoid dismissal of the suit for non-
joinder of the necessary parties.
(j) The application made by the plaintiffs for
amendment was in compliance with the order dated
10th July, 2000 at page No.48 of the compilation. All
the transactions are made prior to the date of
institution of the suit. Even if the Trial Court would
have passed decree, as prayed by the plaintiffs, such
a decree could not have been executable. The
prayers in the plaint were totally defective. Though
some of the co-heirs have admittedly compromised
their dispute with the plaintiffs, the decree for
partition and possession is sought also in respect of
those properties. The purpose of the lands is also
converted into Non-Agricultural by the concerned
alienees.
(k) In the plaint, daughter of Noor Bano should have
been impleaded as plaintiff No.1. Upon her demise,
her legal heirs were brought on record. However, in
the appeal, the defendants No.4-1 i.e. Anjuun
First Appeal 269 of 2006
Jahanahra has been joined as appellant No.4-1,
original plaintiff Nos.4-2 and 4-3 are not joined as
appellants but are joined as the respondent Nos.
271(A) and 271(B).
(l) By an order dated 11th February, 2005, on the
application of the plaintiffs in Civil Application
No.1170 of 2004, names of the defendant Nos. 16 to
271 were deleted from the array of the respondents
in the appeal at the risk of the plaintiffs. The original
plaintiff Nos.4-1 and 4-2 were also joined as
respondent Nos.270-(A) and 270(B). The learned Trial
Judge dismissed the suit against all the plaintiffs
including original plaintiff Nos.4-1 and 4-2. No
appeal is filed by plaintiff Nos.4-1 and 4-2 against
the order of dismissal of the suit. No cross
objections are filed by them. The respondent Nos.6 to
271 are deleted with effect from 11th February, 2005
at the stage of condonation of delay itself and are
excluded from the suit property. Dismissal of the
suit against the original plaintiff Nos.4-A and 4-B
has become final. If this appeal is allowed by this
First Appeal 269 of 2006
Court and if the decree is set-aside, there would be a
conflicting decree against the original plaintiff Nos.4-
A and 4-B against whom the order of dismissal of the
suit has attained finality. The appeal suffers from
the defect of a fundamental nature.
(m) The decree between plaintiff Nos.4-1 and 4-2
also would be conflicting decree. Even if this First
Appeal is allowed by this Court, there will be
conflicting decrees inter se between legal heirs and
Hanfisa Begum i.e. original plaintiff No.1. The suit
would be dismissed against the plaintiff Nos.4-1 and
4-2 and would be decreed in favour of plaintiff No.4-
3, which would be conflicting decree inter se between
them. Appeal is continuation of the suit. Since the
appeal itself is defective, the suit filed by the
plaintiffs can not be restored to its file.
(n) In the civil application for condonation of delay,
the plaintiffs had applied for issuance of notice only
to defendant nos.2 to 5 for the purpose of delay
condonation. No notices were issued to the
defendant nos.6 to 12 (original defendant nos.6 to
First Appeal 269 of 2006
12) in application for condonation of delay. Those
defendants were also not parties to the substantive
appeal. Attention of this Court is invited to page
no.14 of the compilation to demonstrate that no
notices of the appeal were sought to be served upon
defendant nos.6 to 12. Defendant nos.6 to 12 were
similarly situated to defendant nos.1 to 4, who were
also co-sharers.
(o) In the plaint and more particularly in
paragraph no.18, the plaintiffs themselves had
averred that the defendant nos.1 to 12 jointly had ½
share in the suit properties. As a result of the
plaintiffs' not having issued any notices to the
defendant nos.6 to 12 who were co-sharers / co-
owners of the suit property, those defendants are
excluded from the litigation. This exclusion of
defendant nos.6 to 12 was the defect of fundamental
nature going to the root of the matter. There are
several latent and patent defects in the frame of the
suit.
(p) Application by some of the defendants for
First Appeal 269 of 2006
dismissal of the suit in these circumstances was
justified. Reliance is placed on Order XIV Rule 2(b)
and Order I Rule 9 of the Code of Civil Procedure,
1908. In view of the amendment to Order I Rule 9 of
the Code of Civil Procedure with effect from 1.2.1977,
the impleadment of necessary parties to the suit was
must which goes to the root of the matter. The trial
Court thus could not have passed an executable
decree. The appellate Court also simultaneously
cannot pass any decree in the suit in these
circumstances which would be an effective or
executable decree.
(q) The original owner had admittedly expired in
the year 1915. The succession had thus opened in
the year 1915 itself. The suit for partition and for
recovery of possession has been, however, filed by
the plaintiffs in the year 2006. The first suit filed
between the family members of Hamid Ali Khan was
filed in the year 1944 (Suit No.315/1944). The suit
thus became suit for title and thus the presence of
all the legal heirs and representatives and the
First Appeal 269 of 2006
persons claiming through them became necessary.
Hamid Ali Khan was setting up the claim of title all
throughout. The plaintiffs themselves have referred
to five such litigations referred to in the plaint inter-
se defendants.
(r) Reliance is placed on paragraph no.44-A of the
written statement filed by the defendant no.2 in
support of the submission that the co-heirs had
raised a plea of adverse possession. The issues were
re-casted by the learned trial Judge. A reference is
made to Issue No.10 of the re-casted issue, which
was whether the suit was bad for non-joinder of
necessary parties.
(s) Reliance is placed on the judgment of Patna
High Court in case of Churaman Mahto & others v.
Bhatu Mahto & others (AIR 1935 Pat 241) and in
particular paragraph nos.1 and 4 in support of the
submission that in a suit for partition, all the
members of the joint family were necessary parties.
One of the sons of deceased was not impleaded as
party to the appeal. The appeal, therefore, stood
First Appeal 269 of 2006
abated in its entirety.
(t) Reliance is placed on the judgment of the
Supreme Court in the case of Babu Sukhram Singh v.
Ram Dular Singh & others (AIR 1973 SC 204) and in
particular paragraph nos.9, 12 and 15 in support of
the submission that if a party claims a joint
property, all the co-heirs or co-owners would be
necessary parties to the suit. It is submitted that
even before 1976 Amendment, the Supreme Court
had taken such a view.
(u) The learned trial Judge had passed the
impugned order after giving full opportunity to the
plaintiffs to implead the alienees and had specifically
held that those alienees were necessary parties. The
plaintiffs had given an undertaking to the learned
trial Judge and had amended the plaint. The order
passed by the learned trial Judge allowing such
amendment was not challenged by the plaintiffs. The
entire estate is requested to be represented before
the Court. All the co-owners are thus required to be
impleaded in the suit.
First Appeal 269 of 2006
(v) Even in case of Muslims to whom the
Mahomedan Law applies, the extent of share pleaded
in the plaint is required to be adjudicated upon,
which was admittedly a subject matter of the dispute
in the plaint filed by the plaintiffs. The co-owners
and co-heirs had claimed the title due to various
reasons in the suit properties. The shares claimed
by the plaintiffs were admittedly disputed by the
defendant nos.1 to 12 in the suit properties. The
share of the parties would thus crystallize on the
date of decree in the suit in such circumstances.
(w) Reliance is placed on the judgment of Gujarat
High Court in case of Ali Amad (deceased
represented by L.Rs.) v. Sindhi Ebrahim Kasam &
others (AIR 1983 Gujarat 156) and in particular
paragraph nos.3 to 6 in support of the submission
that even in cases where the law of inheritance of
Hindu operates, there are specified shares and the
property devolves on those sharers in specified
shares as it is in the case of Muslims. The question
of representation does not arise when different
First Appeal 269 of 2006
persons inherit the property in different specified
shares. As long as partition is not effected, there is
an undivided specified share of all the sharers, both
Hindu and Muslims in respect of the entire property
and there is nothing peculiar about the Muslim
inheritance.
(x) Reliance is placed on the judgment of this
Court in case of Equbal Begum v. Abdul Rahim (2009
(2) Mh.L.J., 547) and in particular paragraph nos.8,
12, 14 and 16 in support of submission that in case
of a suit for partition decree, on death of one of the
respondents, passing of decree in favour of the
appellants will be contradictory to the decree which
has become final with respect to the same subject
matter between them and the deceased, who was one
of the co-heirs.
(y) Reliance is placed on the judgment of the
Supreme Court in case of Kanakarathanammal v.
V.S. Loganatha Mudaliar & another (AIR 1965 SC
271) and in particular paragraph nos.9, 14 and 15
First Appeal 269 of 2006
in support of the submission that the plaintiffs had
accepted the order passed by the learned trial Judge
that impleadment of the alienees was necessary
being necessary parties to the suit and the plaintiffs
having carried out the amendment by impleading
such alienees to the plaint and thus could not have
applied for deletion of those alienees from cause title
of the plaint and also could not have refused to
implead the legal heirs of some of those alienees who
had expired during the pendency of the suit.
(z) Reliance is placed on the judgment of Gauhati
High Court in case of Rajiba Khatoon & others v.
Rafiqui Hussain Bhuyan (1998 (4) GLT 464) and in
particular paragraph no.6 in support of the
submission that without impleading the co-heir of
the deceased owner in a suit for partition, the entire
suit will abate and not only against the particular
defendant. Most of the parties to the suit who were
impleaded initially in the appeal memo have been
deleted by the plaintiffs including some of the co-
heirs. In these circumstances, the entire appeal also
First Appeal 269 of 2006
shall stand abated.
(aa) Defendant nos.9, 11 and 12, who were
contesting defendants and had filed written
statement, have been deleted in these proceedings.
This Court had permitted such amendment at the
instance of the plaintiffs at the risk of the plaintiffs.
It was specifically mentioned in the order that such
deletion was permitted at the risk of the plaintiffs.
(bb) No notices have been issued to the legal heirs
of defendant no.1 i.e. who were impleaded as
defendant nos.1-B and 1-C. Some of the legal heirs
from the branch of the plaintiffs are not before the
Court. Suit is already dismissed against those
parties before the trial Court. Rights and interest of
those parties cannot be decided by this Court in this
appeal in view of those parties having excluded from
the appellate Court proceedings at the risk of the
plaintiffs. All the successors in interest of Mehboob
Ali Khan are not admittedly before this Court.
(cc) Defendant nos.6 to 12, who were the contesting
defendants and were parties before the trial Court
First Appeal 269 of 2006
having share in the property, have been excluded
from the appeal by the plaintiffs. All the co-heirs
and representatives of Mehboob Ali Khan are not
before the Court, which would affect and invalidate
the entire proceedings.
(dd) Reliance is placed on the judgment of the
Supreme Court in case of Kenchegowda (since
deceased) by L.Rs. v. Siddegowda alias Motegowda
(1994) 4 SCC 294) and in particular paragraph
nos.14 and 16 in support of the submission that a
suit even for partial partition in the absence of the
inclusion of other joint family properties and the
impleadment of other co-sharers is not warranted in
law.
(ee) Reliance is placed on the judgment of the
Supreme Court in case of Sri Chand & others v. M/s
Jagdish Pershad Kishan Chand & others (AIR 1966
SC 1427) in support of the submission that it is laid
down by the Supreme Court as to when an appeal
abates in its entirety. It is submitted that each and
First Appeal 269 of 2006
every test laid down by the Supreme Court in the
said judgment specifically applies to the facts of this
case. If this appeal is allowed, there will be a
conflicting decree against some of the defendants
since the decree against those defendants would
stand, whereas against some of the defendants, the
decree would not survive. Some of the defendants
before the trial Court were not brought before the
appellate Court. The decree as prayed in the
appellate Court, if passed, would be thus an
ineffective and inconsistent decree.
(ff) The decree against the surviving
representatives has to be an executable decree. In
Schedules I and II of the plaint, entire properties are
the subject matter of the suit. The reliefs sought by
the plaintiffs are not only for partition but also for
recovery of possession of the entire properties. The
individual share of the co-sharer / co-heir is not
being partitioned or ear-marked. The frame of the
appellate proceedings itself is defective
fundamentally which goes to the root of the matter
First Appeal 269 of 2006
invalidating the whole proceedings. Modification of
decree against some of the defendants would not be
possible.
(gg) Reliance is placed on the judgment of the
Supreme Court in case of Budh Ram & others v.
Bansi & others (2010) 11 SCC 476) and in
particular paragraph nos.2, 3, 4, 6 and 12 to 20 in
which the law on the issue as to when the appeal
stands abated in toto is laid down. The existence of
a joint right as distinguished from tenancy-in-
common alone is not the criterion but the joint
character of the decree, de-hors the relationship of
the parties inter se and the frame of the appeal, will
take colour from the nature of the decree challenged.
It is held that if any relief is granted and the decree
is ultimately passed would become totally
unenforceable and mutually self-destructive and
unworkable vis-a-vis the other part, which had
become final. The appeal has to be declared abated
in toto. It is the duty of the Court to preserve and
protect the rights of the parties.
First Appeal 269 of 2006
24] Mr.R.N. Dhorde, learned Senior Counsel for
defendant no.4 adopted the arguments advanced by
Mr.P.M. Shah, learned Senior Counsel for the defendant
no.2 and made additional submissions as under:-
i] There was a compromise between
defendant nos.1,7,13, 14 and 15. The defendant
no.1 had sold several properties. All the parties
were in joint possession. In view of out of Court
settlement, those defendants who were parties to
the compromise decree were paid various
amounts. No disclosure is made by those
parties as to how much amount was paid to
them under the said compromise decree. Those
defendants have already got their share in the
joint properties. Defendant nos.13 to 15 and
plaintiff nos.1 to 6 are thus not concerned in
respect of those properties.
ii) However, in the plaint, the plaintiffs have
prayed for a decree of partition and separate
possession in respect of the properties including
the properties which were subject matter of that
First Appeal 269 of 2006
compromise decree and against all the
defendants without carrying out any
amendment. The compromise between those
parties has become final and is not challenged.
iii] Defendant no.1 is not before this Court.
Now the legal heirs of defendant no.1 are not
brought on record. In view of the fact that the
parties were tenants in common, the decree is
inseparable. No contradictory decree can be
passed by the Court.
iv] After framing of preliminary issues by the
learned trial Judge, the plaintiffs had filed an
application for impleadment of the alienees as
necessary parties. In support of this
submission, attention of this Court is invited to
various pleadings filed by the plaintiffs for such
impleadment and the orders passed by this
Court prior to such application and passed
thereafter. Summons on some of the defendants
could not be served. The plaintiffs had already
implemented the order of impleadment passed
First Appeal 269 of 2006
by this Court which order itself was not
challenged. The plaintiffs had given incomplete
address of some of the defendants and were
solely responsible for the same. On the basis of
the Purshis dated 20.11.2002 filed by the
plaintiffs, the suit was abated against some of
the defendants.
v) Reliance is placed on the said order dated
4.12.2002 passed by the learned trial Judge
dismissing the suit as abated against defendant
nos.84, 85, 88, 89, 94, 95, 104, 149, 160, 164,
179 and 184. The said decree of dismissal as
abated was passed at the request of the
plaintiffs. Order dated 7.2.2003 passed by the
learned trial Judge to hear the preliminary issue
first was not challenged by the plaintiffs and the
said order attained finality.
vi] The plaintiffs had made an application for
deletion of defendant nos.9, 11 and 12 and
though those defendants were necessary parties
to the suit, any decree that could have been
First Appeal 269 of 2006
passed by the learned trial Judge or by this
Court would be thus unexecutable and cannot
be implemented.
vii] Reliance is placed by the learned Senior
Counsel on the judgment of the Supreme Court
in case of Badni (dead) by L.Rs. & others v. Siri
Chand (dead) by L.Rs. & others (1999) 2 SCC
448 and in particular paragraph nos.6,7 and 10
in support of the submissions that some of the
parties who were parties before the learned trial
Judge have been deleted by the plaintiffs in this
appeal and thus no decree can be passed by this
Court against those parties who were necessary
parties and thus this appeal deserves to be
dismissed in entirety as abated to avoid
conflicting decrees on the common issue and in
respect of the same properties in respect of
which reliefs were sought by the plaintiffs
against all the defendants.
viii] Reliance is placed on the judgment of the
First Appeal 269 of 2006
Supreme Court in case of Bakshish Singh (dead)
by L.Rs. v. Arjan Singh & others (1996) 8 SCC
323) and in particular paragraph no.4 in
support of the submission that since the decree
passed by the learned trial Judge was single and
indivisible, there could not be inconsistent
decrees as against the deceased defendants and
the contesting surviving defendants. It is
submitted that since the legal heirs of some of
the subsequent purchasers were not brought on
record, the decree as prayed for recovery of
separate possession could not have been passed
by the learned trial Judge and thus the suit was
rightly dismissed as abated in entirety.
ix] Reliance is placed on the judgment of this
Court in case of Gajanan s/o Namdeo Kale v.
Sakhubai w/o Bhimaji Kharat (died) & others
(2012 (3) ALL MR 871) and in particular
paragraph no.11 in support of the submission
that since the decree sought by the plaintiffs
First Appeal 269 of 2006
was inseparable and indivisible, in absence of
the legal representatives of one of the deceased,
the entire suit deserves to be dismissed as
abated and not only against those defendants
whose legal heirs and representatives were not
brought on record by the plaintiffs, but as
against all the defendants.
25] Mr.P.R. Patil, learned counsel for the
defendant no.3 adopted the arguments advanced by
Mr.P.M. Shah, learned Senior Counsel for defendant no.2
and made additional submissions as under:-
a] All the defendants impleaded in the suit
were in possession even according to the
plaintiffs, however, were not impleaded as
parties. All the alienees (subsequent
purchasers) are admittedly deleted by the
plaintiffs at their own risk. The plaintiffs were
aware of the fact that the suit properties were in
possession of third parties. Though the
plaintiffs had initially not impleaded those third
parties as defendants to the suit, the plaintiffs
First Appeal 269 of 2006
ultimately accepted the order passed by the
learned trial Judge for impleadment of those
parties and had amended the plaint. After
carrying out amendment to the plaint after
accepting the order of the learned trial Judge
that those alienees were necessary and proper
parties, the plaintiffs could not have applied for
deletion of those parties from the plaint.
Similarly, the plaintiffs could not have refused to
implead the legal heirs and representatives of
some of the alienees who were already impleaded
as defendants in the plaint.
b] Learned counsel for the defendant no.3
placed reliance on the judgment of the Supreme
Court in case of Ram Swarup & others v. S.N.
Maira & others (1999) 1 SCC 738) and in
particular paragraph no.3 in support of the
submission that in a suit for recovery of separate
possession, as filed by the plaintiffs, the parties
who were actually in possession of the suit
properties or any part thereof were necessary
First Appeal 269 of 2006
parties without whose presence, no effective or
executable decree could have been passed by the
learned trial Judge. The entire suit was rightly
dismissed as abated.
c] Reliance is placed on the judgment of the
Supreme Court in case of Rajkumar Gurawara
(dead) through L.Rs. v. S.K. Sarwagi and
Company Private Limited & another (2008) 14
SCC 364) and in particular paragraph nos.16 to
18 in support of the submission that the
inconsistent decree could not have been passed
by the learned trial Judge.
d] Learned counsel for the defendant no.3
also pressed the Civil Application
No.11288/2008 and would submit that if this
Court dismisses the First Appeal filed by the
plaintiffs, in that event, the Civil Application
would also become infructuous, otherwise the
same deserves to be allowed.
26] Mr.V.B. Jadhav, learned counsel for the
First Appeal 269 of 2006
defendant no.5 adopted the submissions advanced by
Mr.P.M. Shah, learned Senior Counsel for the defendant
no.2; Mr.P.R. Patil, learned counsel for the defendant
no.3 and Mr.R.N. Dhorde, learned Senior Counsel for the
defendant no.4.
27] Mr.N.V. Gaware, learned counsel for the
plaintiffs, in rejoinder, submits as under:-
A] Learned trial Judge has dismissed the suit
as abated only on limited grounds and had not
passed any decree on merits. This Court thus
cannot consider the objections in this appeal on
various other grounds and which were raised by
the defendants in the written statement filed
before the learned trial Judge at this stage in
this appeal in support of their submissions that
the said suit filed by the plaintiffs was even
otherwise could not have been filed, was also
not maintainable or deserved to be dismissed
on merits.
B] In a suit for partition and possession, the
share of each of the co-owner and co-heir was
First Appeal 269 of 2006
already predetermined which would not have
changed at any stage in the trial till its disposal.
The plaintiffs had inherent right to seek
partition and separate possession. The plaintiffs
were not required to challenge the alienation or
to challenge any other subsequent facts after
filing of the suit.
C] The rights of the plaintiffs were denied by
the defendants for the first time in the year 1996
and thus the suit was immediately filed. Two
civil suits already filed inter-se between some of
the co-heirs or persons claiming through them
had been already referred in the plaint by the
plaintiffs. The plaintiffs were not parties to the
compromise decree in those suits and the said
decree was thus not binding on the plaintiffs.
D] The possession of the properties of
Mr.Hamid Ali Khan was on behalf of all the co-
owners and co-heirs and was not an exclusive
possession on behalf of himself.
E] The application filed by some of the
First Appeal 269 of 2006
defendants for dismissal of the suit as abated
was not made under any provisions of law and
thus could not have been entertained by the
learned trial Judge.
F] Principles of Hindu Law cannot be applied
to the plaintiffs and defendant nos.1 to 12 who
were Muslims and were governed by
Mohammedan Law. The concept of co-
parcenery prevailing in Hindu Law does not
apply to the Muslims who are governed by
Mohammedan Law. The status of all such co-
owners and co-heirs was of tenants in common.
Reliance is once again placed on the judgment of
Allahabad High Court in case of M.T. Zabaishi
Begam Vs. Naziruddin Khan and others (AIR
1935 page 110) in support of the submission
that share or interest of all the co-heirs or co-
owners being Muslims was definite and does not
change. Absence of any such heirs in the suit
would not affect the suit in any manner
whatsoever.
First Appeal 269 of 2006
G] Appeal is continuation of the suit. All the
co-heirs were not necessary parties to the suit
being Mohammedan and thus were not
necessary parties to the appeal. The principles
applicable to the parties that the shares and
interest of each of the co-heir and co-owner
being definite and ascertained, apply also to the
proceedings before this Court. The appeal thus
cannot be dismissed as abated as sought to be
canvassed by some of the defendants.
H] Even if the suit is restored and some of the
legal heirs are not parties to the suit, the Court
can still pass a decree against all the co-heirs.
The share is fixed and ascertained. Those co-
heirs or co-owners who were left out and were
not impleaded in the suit, they can always claim
their rights even subsequently.
I] Insofar as the submissions of the learned
Senior Counsel for the defendant no.2 on the
issue of partial partition is concerned, it is
submitted that distinction is carved out between
First Appeal 269 of 2006
Hindus and Mohammedans. The concept of
partial partition applies only to Hindus. The
concept of survivorship does not apply to
Mohammedans. Partial partition is thus
permissible. Reliance is placed on the decision
of Madras High Court in case of Haji Mohamed
Abdullah and others Vs. C. Abdul Rahiman and
others (AIR 1964 Madras 234).
J] Decree of possession can be effected by the
revenue authorities after such decree would
have been passed by the learned trial Judge for
decree of partition and for separate possession.
There was no question of any inconsistent or
conflicting decrees. No separate decree against
individual defendants was required to be passed
by the learned trial Judge.
K] Reliance is placed on the judgment of this
Court in case of Vitthal Bapu Mane Vs.
Balasaheb Sidhu Masal and others (2017(3)
Mh.L.J. 232) and in particular paragraph no.8
First Appeal 269 of 2006
in support of the submission that no separate
declaration challenging the alienation of the
properties in favour of third parties was required
to be sought by the plaintiffs in the plaint
originally or by carrying amendment to the
plaint.
L] Some of the defendants did not contest the
suit and became parties to the compromise
decree. The law cannot permit the other parties
to overpower the plaintiffs by tool of oppression
and hence they could not be party to appeal.
The notice was thus directed to be issued only
against limited defendants. The defendants who
were not served with notices also could have
filed their separate appeal or could have filed
cross-objections. Their names were deleted in
the year 2005, whereas the civil application for
impleadment was filed in the year 2011.
M] Insofar as Civil Application
No.10445/2011 filed by the four applicants is
concerned, no notice was served upon them by
First Appeal 269 of 2006
the appellants and their names were deleted at
the risk of the plaintiffs in the year 2005. No
such civil application in the year 2011 by those
four applicants thus could be filed by them
before this Court and the same thus deserves to
be dismissed.
N] The judgments relied upon by the learned
counsel for the plaintiffs are distinguishable on
the ground that even in respect of the parties
being Muslim when Mahomedan Law applies,
the general law relating to partition applies and
thus those judgments would not assist the case
of the plaintiffs. The judgment in case of
Shahazada Bi Vs. Halimabi ( Since Dead) By Her
Lrs. (supra) is distinguished on the ground that
in that matter, the properties of each of the
defendant was identified in the plaint and the
portion of the property was ear-marked. In the
facts of that case, the Supreme Court held that
the abatement in respect of the particular
defendant in respect of the definite share in
First Appeal 269 of 2006
possession of that party, for not impleading the
legal heirs of such party, the suit would abate
only against such particular defendant and not
in entirety. It is submitted that the facts are
totally distinguishable with the facts of this
case.
O] Provision of Order I Rule 9 of the Code of
Civil Procedure has to be read with Order I Rule
13 of the Code of Civil Procedure. The objection
has to be raised at the earliest. The subsequent
events had occurred when Court passed an
order against some of the defendants whose
legal heirs were not brought on record. In these
circumstances, the application made by some of
the defendants for dismissal of the suit in
entirety as abated for non-joinder of necessary
parties was fully justifiable and maintainable.
P] The issues can be corrected or re-cast by
the Court at any stage of the proceedings being
a procedural part.
28] The questions that arise for consideration of this
First Appeal 269 of 2006
Court in this First Appeal are:-
a) Whether in a Suit of partition and for recovery of
possession of property filed by a Mohammedan, all the
parties in possession of the Suit properties are necessary
or proper parties and in absence of those parties not
having been impleaded or if legal heirs of the deceased
defendants are not impleaded (a) whether under Order
XXII Rule 1 and 4 of the Code of Civil Procedure, 1908,
entire Suit is abated or right to sue survives against the
remaining defendants ?, (b) whether the appeal also can
be dismissed as abated in entirety if necessary parties
are not impleaded ?, (c) the question that also arises for
consideration of this Court is that in view of the aforesaid
admitted facts in earlier paragraphs of the order, whether
decree, if any, which could have been passed by the Trial
Court in the Suit filed by the plaintiffs for partition and
recovery of possession is executable decree or it would be
conflicting decree between some of the defendants inter-
se and the plaintiffs between some of the plaintiffs who
had not challenged the decree passed by the learned
First Appeal 269 of 2006
Trial Judge and the remaining plaintiffs.
29] Some of the admitted facts emerged from the
record produced before this Court are as under:-
a) The plaintiffs had filed a Suit inter alia
praying for partition of the properties prescribed in
Schedule-A to the plaint and also for recovery of
possession. Before filing of the Suit, substantial portion
of the Suit properties had been already alienated by the
original defendant No.1 Mr.Hamid Ali Khan in favour of
several persons. The predecessor in title in respect of the
said property died in the year 1915.
b] Defendant Nos.1 to 12 are the sons and
married daughters of Mr.Hamid Ali Khan and Defendant
Nos.13 to 15 are impleaded being grandsons of Mrs.Noor
Bano.
C] It was the case of the plaintiffs that the entire
management of the properties was jointly inherited and
was looked after by Mr.Hamid Ali Khan for himself and
also on behalf of his two sisters. Mr.Hamid Ali Khan
held half share and two sisters each held one-fourth
First Appeal 269 of 2006
share, according to the plaintiffs. It was the case of the
plaintiffs that the said Mr.Hamid Ali Khan and his two
sisters had undivided joint properties as co-owners
thereof. The Suit was filed for partition and possession
of the properties initially against the defendant Nos.1 to
12.
d] The Trial Court re-casted issues, which were
framed on 14.10.1999. Issue No.10 was "whether the
Suit is bad for non-joinder of necessary parties?" On the
application of some of the defendants for framing the
preliminary issue of non-joinder of necessary parties on
01-03-2000, the learned Trial Judge framed a
preliminary issue on 7.4.2000 as 'whether the Suit is
incompetent for non-joinder of necessary parties'. The
said order is admittedly not challenged by the plaintiffs.
e] On 3.5.2010, the plaintiff filed an application
in the Suit praying for time to implead necessary parties.
The learned Trial Judge granted time to the plaintiffs
upto 10.7.2000 to implead necessary parties. The
plaintiffs filed and application for carrying out and
amendment to add 252 defendants. The amendment
First Appeal 269 of 2006
was thereafter carried out by the plaintiffs. The Bailiff
submitted a report pointing out that some of the
defendants are expired. The plaintiffs did not take any
step for setting aside the amendment of the Suit against
dead defendants.
f] The learned Trial Judge allowed the
applications of some of the defendants to hear the issue
of non-joinder of necessary parties. The plaintiffs applied
for review of the said Order passed by the learned Trial
Judge. The said application of the plaintiffs came to be
dismissed on 5.4.2003. The said order was not
challenged by the plaintiffs.
g) The learned Trial Judge thereafter, passed an
order below Exh.1 on 16.7.2003 holding that the Suit
suffered from non-joinder of necessary parties. The
learned Trial Judge observed that large number of Plots
forming part of the Suit properties were already sold by
Mr.Hamid Ali Khan. There were instances of subsequent
transfers of the said properties in favour of the various
alienees, whose names are entered in the City Survey
First Appeal 269 of 2006
Record. Around 100 Acres of land out of 135 Acres of
land was in possession of the purchasers, who were not
impleaded as parties to the Suit. The learned Trial
Judge, however, took a liberal view and gave opportunity
to the plaintiffs to implead subsequent transferees as
party defendant, instead of dismissing the Suit on that
ground.
h) The plaintiff made an application on 13.8.2003 for
adding defendant Nos.270 to 828 before the Trial Court.
The plaintiffs, however, thereafter, made an application
on 11.9.2003 requesting for not passing any order on
that application for two weeks. On 3.9.2003, though the
plaintiffs had already carried out amendment to implead
defendant Nos.16 to 271, the plaintiffs made an
application for withdrawal of Suit against defendant
Nos.16 onwards. The said application was opposed by
the defendants. Some of the defendants have filed
application for abatement of Suit in entirety on
20.10.2003. The learned Trial Judge dismissed the
application filed by the plaintiffs seeking withdrawal of
Suit for plaintiff Nos.16 onwards and allowed the
First Appeal 269 of 2006
application filed by some of the defendants praying for
abatement of the Suit in entirety.
i] In this First Appeal, the plaintiffs filed an
application for deletion of defendant Nos.16 to 271 from
the array of the appeal. This Court allowed the said
application for deletion and clarified that those deletion
was at the risk of the plaintiffs. The plaintiff thereafter
applied for deletion of defendant Nos.9 to 12 on
29.8.2005. This Court allowed the said application also.
Defendant No.3 made an application for dismissal of
First Appeal for non-joinder of necessary parties.
j] The plaintiffs impleaded original plaintiff
No.4(1) and 4(2) as respondent Nos.271(A) and 271(B) in
the First Appeal. The Trial Judge had dismissed the Suit
against all the plaintiffs including original plaintiff
Nos.4(1) and 4(2). No appeals were filed by the original
plaintiff Nos.4(1) and 4(2) against the Order of dismissal
of the Suit nor any cross-objection came to be filed by
them. By virtue of the application made by the plaintiffs
to delete respondent Nos.16 to 271, those defendants are
excluded from the present proceedings. The dismissal of
First Appeal 269 of 2006
Suit against original plaintiff Nos.4(A) and 4(B) has
become final.
k] No notices of the First Appeal were issued to
respondent Nos.6 to 12 in the application for
condonation of delay at the instances of the plaintiffs.
No notices of First Appeal were sought to be served upon
defendant Nos.6 to 12, who were similarly situated as
plaintiff Nos.4(1) and 4(2), who were co-shares.
l] There was a compromise decree between
plaintiffs and defendant Nos.1, 7, 13 to 15. The Suit
against defendant Nos.1, 7, 13 to 15 accordingly came to
an end. No amendment is sought to be carried out by
the plaintiffs for modifying the prayers for deletion of
the parties with whom a compromise decree took place.
Till the Suit was dismissed by the learned Trial Judge as
abated in entirety, the prayer in the plaint for partition of
the entire property and recovery of possession continued.
m] It is not in dispute that issues were already
re-casted by the learned Trial Judge which include a
issue 'whether the Suit is bad for non-joinder of
necessary parties. The learned Trial Judge accordingly
First Appeal 269 of 2006
passed an order to decide the said issue as a preliminary
issue. The said order was not challenged by the
plaintiffs. The Trial Court though passed an order
holding that the Suit was not bad for non-joiner of
necessary parties, gave an opportunity to the plaintiffs to
apply for impleading those persons as parties to the Suit.
The plaintiffs applied for time to carryout amendment
and thereafter, actually carried out amendment and
impleaded those parties.
n] Some of the defendants had pointed out that
there were about more than 400 transactions. The
plaintiffs applied for carrying out amendment and to
bring large number of alienees as defendants. At that
stage, the plaintiffs made an application to once again
delete the defendant Nos.6 onwards till 271 from the
plaint. Admittedly, some of the defendants, who were
impleaded by the plaintiffs expired. The Trial Court also
passed an order of abatement of Suit against those
defendants, who were expired.
o] The defendants did not challenge the said
order passed by the learned Trial Judge. The plaintiffs
First Appeal 269 of 2006
though had applied for impleadment of defendant
Nos.270 to 828 on 13.8.2003, subsequently made a fresh
application for deletion of defendant Nos.16 onwards.
Some of the defendant prays for dismissal of Suit in
entirety on various grounds including the ground that
some of the alienees had expired and all the alienees
are not on record.
30] It is thus clear that the plaintiffs had availed
of the liberty granted by the learned Trial Judge to
implead the remaining alienees though had come to a
conclusion that the Suit was bad for non-joiner of the
parties. The plaintiffs, however, instead of carrying out
an amendment, had applied for deletion of the defendant
No.16 onwards till defendant No.271.
31] The learned counsel for the plaintiffs and the
contesting defendants invited our attention to the various
applications filed by the parties, various orders passed
by the Trial Court and also by this Court in these
proceedings and are relied upon large number of
First Appeal 269 of 2006
Judgments of various Courts for consideration of this
Court. After considering the Judgments relied upon by
the parties, following principles of law laid down by the
various Courts can be culled out as under:-
i] If no separate claim was made against any of
the defendants, a joint claim, which was made in the
plaint for a permanent injunction, the appeal stand
abated as a whole under Order XXII Rule 4 of the Code
of Civil Procedure, 1908.
ii] The question of representation does not arise
when different persons inherit property in different
specified shares. As long as partition is not effected,
there is an undivided specified share of all the heirs,
both in Hindus and Muslims, in respect of entire
property and there is nothing peculiar about the Muslim
inheritance.
iii] If the decree has become final in respect to
the same subject matter betweens some of the parties,
death of one of the respondents in case of partition
decree, entire appeal would be abated since in view of the
fact that passing of the decree in favour of the appellants
First Appeal 269 of 2006
would be contradictory to the decree, which had become
final with respect to same subject matter between them
and the deceased.
iv] When the success of the appeal may lead to
the Court's coming to a decision, which would be in
conflict with the decision between the appellant and the
deceased respondent, and therefore, would lead the
Court's passing a decrees, which will be contradictory to
the decree, which had become final with respect to the
same subject matter between the appellants and the
deceased respondent
v] When the appellants could not have brought
the action for the necessary relief against those
respondents alone, who are still before the Court or when
the decree against the surviving respondents, if the
appeal succeeds, be ineffective that is to say, it could not
be successfully executed, the entire appeal would stand
abated and not only against the deceased respondents,
whose legal heirs were not brought on record. The
appellant Court cannot in such a situation modify that
decree directly or indirectly.
First Appeal 269 of 2006
vi] When the decree in favour of the respondents
is joint and indivisible, the appeal against the deceased
respondent can be proceeded with, if the appeal against
the deceased respondent is abated. If the aforesaid test
are not satisfied, the appeal has to be dismissed as
abated. The aforesaid tests laid down by the Supreme
Court in case of State of Punjab Vs. Nathurao, AIR 1962
SC, 89 are not cumulative tests and thus, if one of them
is satisfied, the Court may hold that the appeal is abated
in its entirety.
Vii} When the success of the appeal may lead to
the Court's coming to a decision, which may be in
conflict with decision between the appellant and
deceased respondent, which will lead to Court's passing
a decree, which may be contradictory to the decree which
had become final with respect to the same subject matter
between the appellant and the deceased respondent in
the same case, the appeal may abate as a whole in such
a situation.
viii] Existence of a joint right as distinguished
First Appeal 269 of 2006
from tenancy-in-common alone is not the criteria but the
joint character of the decree de hors relationship of the
parties inter-se and the frame of the appeal will take
colour from the nature of the decree challenged. The
entire proceeding will stand abated in case of non-
impleadment of necessary party to the appeal. If any
relief is granted and decree is ultimately passed would
become total unenforceable, self-destructive and
unworkable vis-a-vis. the other part which had become
final, the appeal has to be declared abated in toto. It is
the duty of the Court to preserve the right of the parties.
ix] Every co-owner has a right to enjoy equal share
that of the other co-owners. A co-owner of the property
had share in every part of the composite property along
with others and he cannot held to be fractional owner of
the party unless partition takes place.
x] Where each one of the parties has an
independent and distinct right of his own, not inter-
dependent upon one or the other, nor the parties
affecting interest inter-se, the appeal may abate only qua
the deceased respondent. However, in the case there is
First Appeal 269 of 2006
possibility that the Court may pass a contradictory
decree in favour of the deceased party, the appeal would
abate in toto for the simple reason that appeal is
continuity of the Suit and the law does not permit two
contradictory decrees in the same Suit.
xi] When the decree is single and indivisible,
there cannot be inconsistent decrees as against deceased
respondent and contesting surviving respondents.
xii] If the interests of the co-defendant are
separate as in case of co-owner, the Suit will abate as
regards particular interest of the party. If the case is of
such a nature that the absence of legal representative of
the deceased respondent prevents the Court from
hearing the appeal as against the other respondents,
then the appeal abates in toto. If the appeal is allowed to
proceed in such a situation against remaining
respondents, there would be two contradictory decrees
about the same properties and thus to avoid conflicting
decrees, the Court has to dismiss the appeal as a whole.
xiii] Existence of joint right as distinguished from
tenancy in common alone is not a criteria but the joint
First Appeal 269 of 2006
character of the decree de hors relationship of the
parties inter-se and the frame of the appeal will take
colour from the nature of the decree challenged. A
decree can be said to be a inconsistent or contradictory
only when two decrees are incapable of enforcement and
that enforcement of one negate the enforcement of the
other.
xiv] Court cannot pass a decree granting reliefs to the
plaintiff without prejudicially affecting the right of the
co-parcener, who is not party to the Suit and as such the
Court cannot, but dismiss the Suit.
xv] A share acquired by the heirs of the deceased
Mohammedan in his property are always definite,
distinct and ascertained and as such, the absence of one
of the co-heirs from a Suit brought by another co-heir for
possession of his share, cannot be a ground for
dismissing the Suit.
xvi] In Mohammedan law, the doctrine of partial
partition is not applicable because the heirs are tenants-
in-common and the heirs of the deceased Muslim
succeed to the definite fraction of every part of his estate.
First Appeal 269 of 2006
The share of heirs under Muslim Law are definite and are
known before actual partition.
xvii] Even if the presence of the third party
applicants would be necessary for complete and final
adjudication of the question involved in the case,
impleadment of such party would be necessary and in
absence thereof, the Suit would be bad for non-joinder
of the parties.
32] We shall now consider as to which of the
principles laid down by the various Courts, which are
culled out in the earlier paragraphs of this Judgment
would apply to the facts of this case.
33] It is not in dispute that plaintiffs had initially
impleaded only the co-heirs and co-owners of the
properties, which according to the plaintiffs were entitled
to specific share in the Suit property. It is also not in
dispute that even before filing of the Suit by the plaintiffs
for seeking the partition and recovery of possession, large
portion of the properties had been already sold by one of
First Appeal 269 of 2006
the co-heirs. The plaintiffs themselves had impleaded
the alienees, in respect of some of those properties
transferred, to the Suit being necessary parties. It was
the case of the plaintiffs themselves that those alienees
would be necessary parties to the Suit and had applied
for their impleadment accordingly.
34] Some of such alienees, however, were not
brought on record. In our view, the plaintiffs having
been proceeded on the premise that such alienees would
be necessary and/or proper appropriate parties to the
Suit for partition and recovery of possession, the
plaintiffs could not have filed an application for deletion
of the alienees from the plaint. The plaintiffs took
advantage of the order passed by the learned Trial Judge
by availing an opportunity to implead the alienees as
necessary parties and did not allow the Trial Court to
dismiss the Suit for want of impleadment of necessary
parties.
35] The plaintiffs also did not take any steps to
First Appeal 269 of 2006
apply for setting aside the order of abatement against
some of the alienees, who were impleaded as defendants
by the plaintiffs. In these circumstances, the learned
Trial Judge was right in dismissing the application filed
by the plaintiffs for deletion of the defendant Nos.16
onwards from the plaint and in allowing the applications
filed by some of the defendants inter alia, praying for
dismissal of entire Suit as abated.
36] It is not in dispute that before the Trial Court
the Suit was compromised between the plaintiffs and
some of the defendants in respect of the some of the
properties, which were subject matter of the Suit. It is
also not in dispute that the substantial part of the
properties was already in possession of third parties.
The plaintiffs did not carry out any amendment to the
plaint, though there was a compromise decree between
the plaintiffs and some of the defendants in respect of
part of the Suit properties and the plaintiffs continued to
pray the relief for recovery of possession of the Suit
properties from all the defendants, alienees and those
First Appeal 269 of 2006
defendants with whom the plaintiffs had compromised
the Suit in respect of some of the properties.
37] The alienees who had vested interest in those
properties and most of them were already impleaded
initially. The plaintiffs could not have taken a
contradictory stand by first impleading alienees as
defendants as necessary parties and thereafter for
making an application for deleting all those parties from
the array of the Suit.
38] In our view, in absence of impleadment of the
other alienees in the Suit for partition and for recovery of
possession and also in view of the fact that the parties,
who had compromised the Suit with the plaintiffs in
respect of part of the Suit properties, the plaintiffs not
bringing legal heirs of the deceased alienees, the
plaintiffs not having amended the subject matter of the
Suit including the prayer, the learned Trial Judge in
these circumstances, could not have passed an
executable decree for possession against all the parties to
First Appeal 269 of 2006
the Suit in respect of the entire properties.
39] Though the plaintiffs had prayed for a
specified share in the properties, the shares of the
plaintiffs and the defendants prescribed in the Suit were
admittedly not admitted by the defendants. The dispute
about the shares thus existed between the parties. In
the written statement filed by the co-heirs, the co-heirs
had also not only disputed the entitlement of the
plaintiffs to seek any relief, but also claimed title in
respect of the properties independently by setting up
claim of adverse possession.
40] It is thus clear that Suit filed by the plaintiffs
was not a Suit simplicitor for declaration of their share in
the Suit property, but was a Suit for physical partition of
the Suit properties and for recovery of possession. These
prayers sought in the plaint were inseperable and
indivisible. The share of the plaintiffs and the
defendants were disputed in the Suit and were required
to be adjudicated upon. The intervening rights created
First Appeal 269 of 2006
in favour of the third parties, who had purchased the
properties for valuable consideration, are prior to even
filing of the Suit by the plaintiffs, also was required to be
adjudicated upon before passing any decree for recovery
of possession.
41] In our view, no decree for recovery of
possession could have been passed against the third
parties, who were in possession and were not on record
already on record as defendants or though some of them
were brought on record were deleted in appeal. The
plaintiffs were knowing well that those third parties, who
were in possession of the said properties, their
impleadment in the Suit for recovery of possession was
necessary. No effective decree thus could have been
passed by the Trial Court in the absence of such parties.
42] A perusal of the record further indicates that
the plaintiffs themselves had admitted in their pleading
that impleadment of all the alienees to the Suit was
mandatory and had infact applied for their impleadment.
First Appeal 269 of 2006
The applicants thus could not have been allowed to take
a different stand in the matter after already having
carried out the amendment by impleading more than 200
defendants alienees and after making applications for
impleadment of remaining alienees also. The plaintiffs
could not be allowed to blow hot and cold at the same
time.
43] A perusal of the record further indicates that
the plaintiffs are claiming share in the property through
Mr.Mehboob Ali Khan, who admittedly expired in 1915.
Even according to the plaintiffs succession had thus
opened in respect of those properties in the year 1915.
The plaintiffs filed the Suit only in the year 1996. The
entire assets of the said deceased are not before the
Court. In our view, the Suit thus itself was not instituted
properly. Admittedly, two of the daughters of
Mr.Mehboob Ali Khan had filed a separate Suit against
Mr.Hameed Ali Khan. There were various litigations
admittedly amongst the defendants also. Some of such
litigants are also referred in the plaint.
First Appeal 269 of 2006
44] Mr.Hameed Ali had four sons and seven
daughters. Even according to the plaintiffs, defendant
Nos.1 to 12 had half share in the Suit property and the
plaintiffs together had the remaining half share. The
plaintiffs had not proceeded against defendant Nos.1 and
7 in view of the compromise decree and having resolved
the dispute out of the Court. The properties are in
respect of which Suit is already compromised with some
of the defendants are not available for partition.
45] The defendant No.1 had himself sold 68
properties, the details of which were already mentioned
in the plaint. Some of the transactions are very old
transactions as apparent from the details of the transfers
annexed to the plaint. The plaintiffs had given an
undertaking to the Court to implead the alienees to pre-
empt dismissal of Suit. Suit was thus not dismissed at
that stage by the trial Court.
46] A perusal of the record further indicates that
original plaintiff No.4, who was daughter of Mrs.Noor
First Appeal 269 of 2006
Bano had expired. Her legal heirs were brought on
record in the plaint. In the First Appeal, however, only
Mrs.Anjum Jahanara was impleaded as the appellant
No.4.(i) Plaintiffs Nos.4.(i) and 4.(ii) are not impleaded as
the appellants, but have been impleaded as respondent
Nos.270(a) and 270(b).
47] The plaintiff applied for condonation of delay
in filing this First Appeal. The notices in the civil
applications were sought to be issued in the First Appeal
to defendants Nos.2 to 5 for the purpose of condonation
of delay. No notices were issued to defendant Nos.6 to
12, who were parties to the Suit as well as to this First
Appeal. The application for condonation of delay was not
addressed against defendant Nos.6 to 12 and thus, the
First Appeal stood dismissed against defendants Nos.6 to
12, who were situated similarly as defendant Nos.4 & 5
and also co-owners and co-heirs.
48] In the plaint, the plaintiffs had themselves
made averments that the defendant Nos.6 to 12 had
First Appeal 269 of 2006
undivided share in the Suit property. In our view, the
share of the defendant Nos.6 to 12 are accordingly
excluded from the litigation. The original plaintiff
Nos.4[i] and 4[ii], who were not impleaded as appellants
and who have been impleaded as respondents, the share
claimed by them in the Suit also stand excluded from the
purview of the Suit, they not having challenged the
decree passed by the trial Court.
49] The Division Bench of this Court allowed
deletion of the names of defendant Nos.16 to 271 from
the array of the defendants on the applications of the
plaintiffs at their own risk. In these circumstances, it is
clear beyond the reasonable doubt that some of the
parties, who were parties to the Suit, are not impleaded
in the First Appeal, whereas some of the parties to the
Suit, who were required to be impleaded as plaintiffs, are
impleaded as defendants. Thus, these plaintiffs have not
filed any separate First Appeal or cross-objection in this
appeal. The plaintiffs are pressing for setting aside the
entire decree passed by the learned Trial Judge
First Appeal 269 of 2006
dismissing the Suit as abated in entirety.
50] By virtue of the plaintiffs, not impleading all
the defendants against whom a decree for partition and
recovery of possession was sought before the Trial Court
are not parties to this appeal. The decree passed in their
favour by the Trial Court has thus attained finality.
There was no physical partition of the Suit properties.
The case of the plaintiffs themselves was that each of the
co-heir and co-owner was entitled to specific undivided
share in the joint properties forming part of the Suit
property.
51] In these circumstances, the First Appeal,
which is continuation of the Suit, also become
fundamentally defective and thus, any decree even if
passed by this Court in these circumstances in favour of
the plaintiffs would not only be a unexecutable and
inoperative decree, but such decree would be conflicting
decree between original plaintiffs inter-se and between
plaintiffs and the co-heirs and co-owners on the other
First Appeal 269 of 2006
hand. In our view, in these circumstances, the learned
Trial Judge was right in dismissing the entire Suit as
abated and not only against the defendants, who had
expired and whose legal heirs were not brought on record
by the plaintiffs.
52] In our view, the learned Judge thus could not
have passed a decree in absence of the necessary parties
including the alienees and the legal heirs of some of the
alienees, who had expired. Simultaneously, this Court in
this First Appeal also cannot pass any conflicting and
unexecutable decree. In these circumstances, this Court
cannot grant any relief in favour of the plaintiffs by
setting aside the impugned decree passed by the learned
Trial Judge dismissing the entire Suit as abated and to
pass a fresh decree in the Suit.
53] The Suit was already dismissed against the
plaintiffs including plaintiff Nos.4(1) an 4(2). The
defendant Nos.16 to 271 also were deleted by the
plaintiffs from the array of this appeal and thus no
First Appeal 269 of 2006
decree can be passed by this Court against such parties,
who were parties to the Suit but are not parties to this
appeal and also against those parties, who were sought
to be impleaded as parties as defendants being other
alienees forming part of the Suit properties and were not
impleaded by the parties on the erroneous premise. The
principles of law culled out from various judgments of
the Supreme Court and this Court, referred to aforesaid,
would apply to the facts of this case.
54] In so far as submission of the learned counsel
for the plaintiffs that in case of the Muslims, their
shares are definite, certain and is predetermined is
concerned, there is no dispute about this proposition of
the law. However, in the facts of this case, the shares
and entitlement of the plaintiffs are disputed by other co-
owners and co-heirs on various grounds including a
separate claim of ownership by way of adverse
possession set up by the defendants against the
plaintiffs. The plaintiffs themselves having compromised
the Suit with some of the defendants, which properties
First Appeal 269 of 2006
stood excluded according to the plaintiffs from the Suit,
no decree can be passed in respect of those properties by
the Trial Court.
55] In our view, even in case of Muslims, in so far
as partition of the properties is concerned, the general
law applies for partition and distribution of properties.
We are thus, not inclined to accept the submission of the
learned counsel for the plaintiffs that even co-heir or co-
owner were not necessary parties to the Suit for
partition and recovery of possession nor any alienees are
either necessary or proper parties to the Suit.
56] In our view, there is no substance in the
submission of the learned counsel for the plaintiffs that
alienees would have independent claim against the
vendors of the properties are even though such
properties forming part of the Suit property and thus
were neither necessary nor proper parties to the Suit.
57] It is not in dispute that the plaintiffs have
First Appeal 269 of 2006
prayed for recovery of possession of the entire property.
Therefore parties, who are in possession of the property
to the knowledge of the plaintiffs are necessary or at least
proper parties to the Suit. We are not inclined to accept
the submission of the learned counsel for the plaintiff
that right title or interest of alienees or their legal heirs
can be decided at the stage of execution of the
proceedings and thus, there presence in the Suit was not
necessary. In our view, this submission of the learned
counsel for the plaintiffs is contrary to the stand taken
by them before the trial Court to the effect that all these
alienees were necessary and proper parties and based on
such contention, an application for their impleadment
was made by the plaintiffs themselves at the initial stage.
58]In our view, there is no merit in the submission of the
learned counsel for the plaintiffs that in this situation
and considering the nature of dispute and the prayers
sought in the plaint, the Suit could have been at the
most dismissed by the learned Trial judge only against
the defendants, who had expired and whose legal heirs
First Appeal 269 of 2006
were not brought on record and not in entirety.
59] Even if this Court accept the submission of
the learned counsel for the plaintiffs that the impugned
order and decree passed by the learned Trial Judge
deserves to be set aside with the modification that the
Suit can be dismissed only against such defendants,
whose legal heirs are not brought on record, in our view
since decree against some of the defendants have
attained finality by virtue of the plaintiffs having deleted
their names in this First Appeal, even if, the decree
passed by the learned Trial Judge is set aside, this Court
or the learned Trial Judge would not have power and
jurisdiction to pass a decree against such defendants
against whom a decree of dismissal of Suit has attained
finality.
60] The number of Judgments relied upon by the
learned counsel for the plaintiffs are rightly distinguished
by Mr.P.M.Shah, learned senior counsel for the
defendant no.2 and Mr.R.N.Dhorde, learned senior
First Appeal 269 of 2006
counsel for defendant No.4 on the ground that the facts
before the Courts in those Judgments were totally
different. In our view, none of the Judgment relied upon
by the plaintiffs would assist the case of the plaintiffs
and are clearly distinguishable in the facts of this case.
61] In our view, if the impugned decree passed by
the learned Trial Judge is set aside as prayed by the
learned counsel for the plaintiffs, there may be
conflicting decrees against the parties in whose favour
the decree is passed by the learned Trial Judge has
attained finality. In our view, thus appeal suffers from
defects of fundamental nature. Though the plaintiffs had
impleaded the alienees, who were parties before the Trial
Judge, in the First Appeal, all such alienees were deleted
from the array of the appeal at the risk of the plaintiffs.
Some of the co-heirs and co-owners are also stood
deleted in view of the notices not having been issued to
them at the behest of the plaintiffs in the application for
condonation of delay. This Court thus cannot pass any
decree, which would be unexecutable, inoperative, and
First Appeal 269 of 2006
would be a conflicting decree. In these circumstances,
the provisions of Order XXII Rule 4 of the Civil Procedure
Code would apply to the facts of the case and thus, the
entire appeal also would stand abated against all the
defendants.
62] In so far as reliance placed on the judgment
on Supreme Court in case of Syed Shah Ghulam
Ghouse Mohiuddin (supra) by the learned Counsel for
the appellants is concerned, in our view, this judgment of
the Supreme Court would not assist the case of the
appellants for the reason that the shares of the
appellants as well as respondent Nos.1 to 12 set out in
the plaint as well as entitlement of the plaintiffs to share
in the property itself is disputed by defendant Nos.1 to
12, which was required to be adjudicated upon in the
suit. Similarly, in so far as the judgment of this Court in
the case of Abbas Abdul Mhaiter and others, judgment
of Jammu and Kashmir High Court in the case of Khazir
Bhat, judgment of Madras High Court in the case of Hazi
First Appeal 269 of 2006
Mohamed Abdullah and others and judgment of
Rajasthan High Court in the case of Mohammad Subhan
(supra) are concerned, the said judgments would also not
assist the case of plaintiffs for the similar reason.
63] The judgment of Privy Council in the case of
Mt. Zabaishi Begum (supra) would not assist the case of
plaintiffs on the ground that the said judgment is
delivered prior to amendment in Order I Rule 10 of the
Code of Civil Procedure and also on the ground that
since the decree in the facts and circumstances of this
case would not have been an executable decree and
would have been a conflicting decree.
64] In so far as the judgment of Supreme Court in
the case of Beharilal (supra) relied upon by the learned
Counsel for the plaintiffs in support of the submission
that since the issues were already framed under Order
XIV Rule 2 of the Code of Civil Procedure, 1908 including
the issue whether the suit was bad for non-joinder of
First Appeal 269 of 2006
necessary parties and evidence was likely to start in the
matter is concerned, under Order XIV Rule 5 of the Code
of Civil Procedure, 1908, the Court is empowered to
amend and strike out the issues at any stage. Be that as
it may, the application filed by some of the defendants to
frame issue as to whether the suit was bad for non-
joinder of necessary party was allowed. The said order
was not challenged by the plaintiffs.
65] The learned trial Judge thereafter proceeded
to decide the said issue and had held that the suit was
bad for non-joinder of necessary parties. However,
before passing any final order on the said application,
gave an opportunity to the plaintiffs to amend the suit by
impleading the alienees. The plaintiffs availed of that
opportunity and made an application for impleadment of
those alienees as defendants. It was specifically averred
by the plaintiffs that those alienees would be the
necessary parties. The final order passed by the learned
trial Judge allowing the plaintiffs to carry out the
amendment at their request was admittedly not
First Appeal 269 of 2006
challenged by the plaintiffs. Plaintiffs thus cannot be
allowed now to urge that the learned trial Judge could
not have decided the issue as to whether the suit was
bad for non-joinder of necessary parties after framing of
all the issues.
66] We are not inclined to accept the submission
of the learned Counsel for the plaintiffs that since the
alienees themselves were not necessary parties to the
suit, the legal heirs of some of the alienees who had
expired during pendency of the suit, are also not
necessary parties under Order I Rule 10 (2) of the Code
of Civil Procedure, 1908 and thus on that ground itself
the learned trial Judge would not have dismissed the suit
as abated in entirety. In our view, the alienees are the
necessary and/or proper parties to the suit in view of
specific prayers of the plaintiffs for recovery of possession
and partition in respect of the suit properties most of
which properties were in possession of the alienees. The
said issue decided by the learned trial Judge in the
application filed by some of the defendants, pursuant to
First Appeal 269 of 2006
which the plaintiffs had already impleaded those alienees
as parties, the said order attained finality and had been
implemented.
67] It is a matter of record that the plaintiffs also
filed an application for impleadment of remaining
alienees also as parties defendants to the suit. The
argument advanced by the learned Counsel for the
plaintiffs is thus contrary to the earlier orders passed by
the learned trial Judge, which had attained finality. The
judgment of this Court in the case of Waman Nagu
Chaudhari (supra) would thus not assist the case of
plaintiffs.
68] In so far as the judgment of this Court in the
case of Vitthal Bapu Mane (supra) relied upon by the
learned Counsel for the plaintiffs is concerned, in our
view, the facts before this Court in the said judgment
were totally different. Since the plaintiffs had applied for
recovery of possession in respect of the suit properties,
First Appeal 269 of 2006
which were in possession of several alienees to the
knowledge of the plaintiffs, all such transfers of the
property had taken place even prior to the date of filing of
the suit, such alienees were necessary and proper
parties.
69] Even if the plaintiffs did not desire to seek
specific declaration for setting aside the alienation in
favour of purchaser, in view of the plaintiffs seeking a
prayer for recovery of possession from such alienees,
their impleadment as parties defendants was necessary.
The judgment of this Court thus in case of Vitthal Mane
(supra) would not assist the case of plaintiffs.
70] In so far as the issue of limitation raised by
learned senior counsel for defendant No.2 and also the
plea of adverse possession raised by some of the
defendants in the written statement and submission that
the learned trial Judge could have dismissed the suit
also on such and other grounds raised in the written
statement is concerned, we do not propose to deal with
First Appeal 269 of 2006
these submissions on the ground that trial Court has not
dismissed the said suit on these grounds.
71] In so far as the submission of learned
Counsel for the plaintiffs that the application filed by
some of the defendants for dismissal of the suit was not
under any specific provision of the Code of Civil
Procedure is concerned, there is no merit in this
submission of the learned Counsel for the plaintiffs. The
Court has inherent powers under Section 151 of the
Code of Civil Procedure, 1908 to deal with such
application to dismiss the suit for want of necessary
parties.
72] In so far as the submission of learned
Counsel for the plaintiffs that the plaintiffs and
defendant Nos.1 to 12 being Muslims and were governed
by Mohameddan Law, the concept of coparcenary
applicable under Hindu Law does not apply to the
Muslims is concerned, there is no dispute about this
proposition of law. However, when the shares of the
First Appeal 269 of 2006
parties are disputed for various reasons including their
entitlement, such issues were required to be adjudicated
upon by the trial Court and upon arriving at a
conclusion that the parties were entitled to a particular
share in the property, the general law applicable for
partition of properties would have applied which is
common to all, including Muslims. The judgment of
Madras High Court in the Case of MT. Zabaishi Begum
(supra) thus would not assist the case of plaintiffs.
73] In so far as the submission of learned
Counsel for the plaintiffs that the decree of possession
can be effected by the Revenue Authorities after such
decree would have been passed by the learned Judge for
decree of partition and possession and thus there would
not have been any inconsistent or conflicting decrees is
concerned, in our view, this submission of the learned
Counsel has no merit. The right, title and interest of the
alienees could be decided only in the suit filed by the
plaintiffs and such issues could not have been decided
by the Revenue Authorities while enforcing the decree of
First Appeal 269 of 2006
partition.
74] We do not find any infirmity in the decree
passed by the learned Trial Judge and thus, are not
inclined to grant any relief to the plaintiffs in this First
Appeal. We, therefore, pass the following order:-
ORDER
(I) First Appeal No.269 of 2006 is dismissed.
(II) Civil Applications pending if any in this
appeal, are disposed of in view of the
dismissal of the First Appeal.
(III) There shall be no order as to costs.
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
Ysk/
