Umarayar Khan vs Ibrahim Khan &Ors.
2022 Latest Caselaw 16204 MP

Citation : 2022 Latest Caselaw 16204 MP
Judgement Date : 7 December, 2022

Madhya Pradesh High Court

Umarayar Khan vs Ibrahim Khan &Ors. on 7 December, 2022

Author: Dwarka Dhish Bansal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 7 th OF DECEMBER, 2022
SECOND APPEAL No. 870 of 1998

BETWEEN:-
1. UMAR AYYAR KHAN (DEAD) THROUGH:-
LEGAL REPRESENTATIVES-
1(A). IQBAL JAHAN BEGUM W/O LATE UMAR
AYYAR KHAN AGED ABOUT 82 YEARS, R/O 14, AHBAB
COLONY, BEHIND POLICE LINE TAKLI, NAGPUR,
MAHARASHTRA. 440013
1(B). MOHAMMED QUAMAR KHAN, S/O LATE
UMAR AYYAR KHAN, AGED ABOUT 60 YEARS, R /O 14,
AHBAB COLONY, BEHIND POLICE LINE TAKLI,
NAGPUR, MAHARASHTRA. 440013
1(C). MOHAMMED NASIR KHAN S/O UMAR
AYYAR KHAN, AGED ABOUT 58 YEARS, R/O 14, AHBAB
COLONY, BEHIND POLICE LINE TAKLI, NAGPUR,
MAHARASHTRA. 440013
1(D). MOHAMMED ZAFAR KHAN S/O LATE UMAR
AYYAR KHAN AGED ABOUT 54 YEARS, R/O 14, AHBAB
COLONY, BEHIND POLICE LINE TAKLI, NAGPUR,
MAHARASHTRA. 440013.
1(E). DILSHAD JAHAN W/O KHALIL
MOHAMMAD, D/O LAE UMAR AYYAR KHAN AGED
ABOUT 56 YEARS, R/O FLAT NO. F/1, SAMI APARTMENT,
ANANT NAGAR CHOWK, BUS STOP, BORAGAON,
KATOLROAD, NAGPUR, MAHARASHTRA. 40013.

.....APPELLANTS
(BY SHRI IMTIYAZ HUSSAIN, LEARNED SENIOR COUNSEL WITH SHRI
MOHD. SAJID KHAN-ADVOCATE.)

AND
1. IBRAHIM KHAN (DEAD) THROUGH:LEGAL
REPRESENTATIVES:-
1(A). SHRI AKBAR KHAN S/O IBRAHIM KHAN,
AGED ABOUT 40 YEARS, OCCUPATION-SERVICE, R/O
WARD NO.8, MURARI MOHALLA, NEAR KAMAL
MEDICAL STORES, BHAIYAR ROAD, BALAGHAT (M.P.)
1(B). SHRI ASLAM KHAN S/O IBRAHIM KHAN,
AGED ABOUT 30 YEARS, OCCUPATION-BUSINESS, R/O
WARD NO.8, MURARI MOHALLA, NEAR KAMAL
MEDICAL STORES, BHAIYAR ROAD, BALAGHAT
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 12/7/2022
5:49:48 PM
2
(M.P.)
2. SULEMAN KHAN (DEAD) THROUGH LEGAL
REPRESENTATIVES:-
2(A). SHRI SHAMSHIR QAMAR (SHAMA) S/O LATE
SULEMAN, AGED ABOUT 35 YEARS, R/O WARD NO.8,
MURARI MOHALLA, NEAR KAMAL MEDICAL STORES,
BHAIYAR ROAD, BALAGHAT (M.P.)
2(B). SHRI AZHAR S/O LATE SULEMAN KHAN, AGED
ABOUT 33 YEARS, R/O WARD NO.8, MURARI MOHALLA,
NEAR KAMAL MEDICAL STORES, BHAIYAR ROAD,
BALAGHAT (M.P.)
2(C). SHRI MAZHAR S/O LATE SULEMAN KHAN,
AGED ABOUT 31 YEARS, R / O WARD NO.8, MURARI
MOHALLA, NEAR KAMAL MEDICAL STORES, BHAIYAR
ROAD, BALAGHAT (M.P.)
2(D). SHRI ATHAR S/O SULEMAN KHAN, AGED
ABOUT 29 YEARS, R/O WARD NO.8, MURARI MOHALLA,
NEAR KAMAL MEDICAL STORES, BHAIYAR ROAD,
BALAGHAT (M.P.)
2(E). KHIJAR S/O SULEMAN KHAN, AGED ABOUT 27
YEARS, R / O WARD NO.8, MURARI MOHALLA, NEAR
KAMAL MEDICAL STORES, BHAIYAR ROAD,
BALAGHAT (M.P.)

.....RESPONDENTS
(NONE )

Th is appeal coming on for hearing this day, th e court passed the
following:
ORDER

This second appeal has been preferred by the plaintiff/ appellant-Umar Ayar Khan (since died- now represented by appellants-Iqbal Jahan Begum and others) challenging the judgment and decree dated 19/02/1998 passed by First Additional District Judge, Balaghat in Civil Appeal No. 17-A/1991 reversing the judgment and decree dated 03/01/1991 passed by First Civil Judge Class-II, Balaghat in Civil Suit No. 65-A/1984.

2. Original plaintiff-Umar Ayar Khan had instituted the suit only for permanent injunction, claiming himself to be owner and in possession of the disputed property, marked in the plaint map as A-B-E -F.

3. After considering the rival contentions and after recording evidence of Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 12/7/2022 5:49:48 PM

the parties, learned trial Court decreed the suit only for permanent injunction vide judgment and decree dated 03/01/1991, which upon civil appeal filed by the defendants, was dismissed by learned first appellate Court, vide its judgment and decree dated 19/02/1998 and vide para 20 and 21 of the impugned judgment, learned first appellate Court held that the plaintiff has failed to prove his ownership and possession over the disputed property.

4. Learned Senior counsel for the appellants submits that the effecting of partition among the parties is not in dispute and only dispute is with regard to area of the property came in the ownership and possession of the parties. He also submits that in the light of findings recorded by first appellate Court and in the light of decision of Supreme Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy (2008) 4 SCC 594 (para 13 & 14), he may be permitted to withdraw present second appeal with liberty to file a suit for declaration of title and consequential relief of partition as well as possession.

5. Looking to the findings recorded by learned appellate Court in para 20 and 21 of the impugned judgment and in the light of judgment passed by Supreme Court in the case of Anathula Sudhakar (para 14) (supra), in my considered view, the appellants are free to file a suit for declaration of title alongwith consequential relief of partition and separate possession.

6. With the aforesaid observation and liberty, this second appeal is

dismissed as withdrawn.

7. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE skt

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 12/7/2022 5:49:48 PM