Bombay High Court
Syed Arifulla Syed Ahmedulla ... vs Akhtar Begum Abdul Gafur Momin ... on 8 February, 2022
Bench: Mangesh S. Patil
.. 1 ..
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
22 CIVIL APPLICATION NO.700 OF 2022
IN
SECOND APPEAL NO.37 OF 2022
SYED ARIFULLA SYED AHMEDULLA HASHAMI
AND ANOTHER
VERSUS
AKHTAR BEGUM ABDUL GAFUR MOMIN DIED THR
LRS ABDUL GAFUR MOMIN AND OTHERS
...
Mrs. Charuta Sunil Deshmukh, Advocate for the applicants.
Mr. Kulkarni h/f. Mr. Pratap G. Rodge, Advocate for respondent no.3
(Caveator).
...
WITH
SECOND APPEAL NO.37 OF 2022
...
CORAM : MANGESH S. PATIL, J.
DATE : 08-02-2022
PER COURT :
. I have heard Mrs. Deshmukh, learned advocate for the
applicants and Mr. Kulkarni h/f. Mr. Rodge, learned advocate for
respondent no.3 - caveator.
2. It appears that the original plaintiff - Akhtar Begum had
filed the suit for separation of her share against her brothers and
sisters. They are the heirs of common ancestor Alimoddin, who was
.. 2 ..
the real brother of Ahmedulla, the father of the present appellants.
One Syed Abdul Kadar was the father of Alimoddin and Ahmedulla.
3. It appears that though respondent no.1 - original
plaintiff's suit has been decreed by the appellate court by the
judgment and order under challenge in this Second Appeal, in fact,
there was an earlier round of litigation in the form of Regular Civil
Suit No.140 of 1976 filed by Ahmedulla against Alimoddin seeking
perpetual injunction in respect of the properties including the present
suit property i.e. survey no.231. Going by the judgment and order
passed by the appellate court in Regular Civil Appeal No.16 of 1983
arising from that suit, specific issues were formulated and answered
holding that not only survey no.231 but couple of other properties
bearing survey nos.167 and 230 as also the house properties were
still joint between two brothers Almoddin and Ahmedulla and that
the former had failed to prove that survey no.231 was his separate
and self-acquired property. It appears that the heirs of Alimoddin had
preferred Second Appeal No.104 of 1988, but it was dismissed in
default in the year 2008. It is now being submitted that an
application for its restoration is pending.
4. The upshot of above discussion prima facie would lead to
.. 3 ..
the inference that irrespective of rival claims between the heirs inter
se of the members putting up a claim through Alimoddin, the present
appellants being not the parties to the suit had to with the leave of
the appellate court intervene at the first appellate stage. Prima facie
substantial questions of law would arise in the light of the
aforementioned facts and circumstances as to the efficacy and
executability of the decree under challenge if the property is still joint
between the two branches headed by Alimoddin and Ahmedulla.
5. In view of above, issue notice to the respondents
returnable on 22-03-2022. Till then, execution of the decree under
challenge shall stand stayed.
( MANGESH S. PATIL )
JUDGE
...
Gajanan
