Mohd.Shareef Khan vs Mohd.Hanif & Ors.
2022 Latest Caselaw 16417 MP

                           IN THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                               BEFORE
                           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                   SECOND APPEAL NO.1093 OF 1998
                           BETWEEN:-

                                MOHD SHAREEF KHAN (DEAD) THROUGH
                                L.RS.:-

                           1.   MOHD. HABIB, AGED ABOUT 57 YEARS,
                                SON OF LATE MOHD. SHAREEF KHAN

                           2.   MOHD. RAEES, AGED ABOUT 56 YEARS,
                                SON OF LATE MOHD. SHAREEF KHAN

                           3.   MOHD. SHABBIR, AGED ABOUT 45 YEARS
                                S/O LATE MOHD. SHAREEF KHAN.

                           4.   MOHD. NAFEES, AGED ABOUT 40 YEARS
                                S/O LATE MOHD. SHAREEF KHAN

                           5.   MOHD. SHOEB, AGED ABOUT 38 YEARS
                                SON OF LATE MOHD. SHAREEF KHAN

                           6.   QURESHA BEET, AGED ABOUT 75 YEARS,
                                WIFE OF LATE MOHD. SHAREEF KHAN

                                ALL 1-6 R/O MANDI MOHALLA, WARD
                                NO.8, BARELI DISTRICT RAISEN

                           7.   KHURSHID JAHAN, AGED ABOUT 55
                                YEARS, WIFE OF MANSOOR AHMED, R/O
                                WARD NO.8, MANDI MOHALLA, BARELI
                                DISTRICT RAISEN

                           8.   NASREEN JAHAN, AGED ABOUT 52
                                YEARS W/O LAYEEK KHAN D/O LATE
                                MOHD.   SHAREEF   KHAN,  R/O
                                BUDHWARA, BHOPAL.


Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 12/13/2022
10:27:53 AM
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                            9.    SHAGUFTA PARVEEN, AGED ABOUT 50
                                  YEARS, WIFE OF ABDUL WAHID, D/O
                                  LATE MOHD. SHAREEF KHAN, R/O
                                  UMRAO DULHA BAGH, BHOPAL.

                            10.   SHAHISTA PARVEEN, AGED ABOUT 48
                                  YEARS, WIFE OF MOHD. RAEES AHMED,
                                  D/O LATE MOHD. SHAREEF KHAN, R/O
                                  NEAR SILWANI CHHOTI MASJID, RAISEN.

                            11.   SHABNAM BANO, AGED ABOUT 43
                                  YEARS, D/O LATE MOHD. SHAREEF
                                  KHAN, R/O MANDI MOHALLA, WARD
                                  NO.8, BARELI DISTRICT RAISEN.

                            12.   MALKA, AGED ABOUT 40 YEARS, WIFE
                                  OF MOHD. ARIF, D/O LATE MOHD.
                                  SHAREEF KHAN, R/O HANUMANTAL,
                                  JABALPUR.

                            13.   GULHAAJ, AGED ABOUT 32 YEARS, D/O
                                  LATE MOHD. SHAREEF KHAN R/O MANDI
                                  MOHALLA, WARD NO.8,      BARELI
                                  DISTRICT RAISEN

                                                                      .....APPELLANTS

                                  (BY SHRI IMTIYAZ HUSSAIN - SENIOR ADVOCATE ASSISTED
                                  BY SHRI MOHD SAZID KHAN ADVOCATE)

                           AND

                           1.     MOHD.   HANIF, AGED ABOUT     45
                                  YEARSS/O SHRI MOHD. IBRAHIM R/O
                                  MANDI    WARD,    BAREILLY, TEH.
                                  BAREILLY DISTRICT RAISEN

                                                                      ....RESPONDENT

                              (BY SHRI RASHID SOHIL SIDDIQUE - SENIOR ADVOCATE
                              ASSISTED BY SHRI MOHD. AMJAD ANSARI - ADVOCATE)
                           ...............................................................................................
                              Reserved on  :   08.12.2022
                                  Pronounced on :   12.12.2022

Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 12/13/2022
10:27:53 AM
                                                             -   3 -



                                  This appeal having been heard and reserved for judgment, coming
                           on for pronouncement this day, the Court pronounced the following:

                                                        JUDGMENT

This second appeal is preferred by the plaintiff Mohd. Shareef Khan (since died, now by LRs Mohd. Habib and others) challenging the judgment and decree dated 02.09.1998 passed by District Judge, Raisen in civil appeal no.8-A/96 reversing the judgment and decree dated 18.04.1995 passed by Civil Judge Class I, Bareli, District Raisen, in Civil Suit no.71-A/94.

2. In short, the facts are that, original plaintiff Mohd. Shareef Khan instituted a suit for permanent injunction claiming himself to be exclusive owner of the disputed house and prayed that the defendant be restrained from making any interference in his possession over the disputed house which he received after death of Yakoob Khan as shown in the plaint map from item no.4.

3. The defendant Mohd. Hanif appeared and filed written statement claiming himself to be exclusive owner of the house in question with the contentions that in fact the house situated over an area 68'x68' is self acquired property of the defendant on the basis of registered sale deed dtd. 13.05.1965 (Ex.D/1). In para 10 of written statement, he contended that as the plaintiff has already completed construction of disputed house, therefore, the plaintiff has no cause of action. Along with the written statement, counter claim was also filed by the defendant to the effect that the plaintiff by raising construction has taken possession over disputed house shown in the map from mark "A", therefore, decree of possession be granted.

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM

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4. On the basis of pleadings of the parties, learned trial Court framed as many as 9 issues and recorded evidence led by the parties and vide its judgment and decree dated 18.04.1995 held that the house/property including disputed house (total area 68'x68') was purchased by the defendant vide registered sale deed dated 13.05.1965 (Ex.D/1) from Syed Mushtak Ali and held that no partition was effected in the family of the plaintiff and defendant and all the four brothers namely Mohd. Shareef, Mohd. Hanif, Mohd. Rafique and Mohd. Yakoob did not receive equal share in the house area 68'x68' and it was also held that the disputed house did not come in the share of plaintiff after death of brother Yakoob. However, it was held that the plaintiff and defendant both jointly sold one part of the house to Vahid Khan vide registered sale deed dated 09.05.1977 (Ex.D/4) and also held that the plaintiff was residing in the disputed house with the permission of defendant and the defendant is exclusive owner of the house in question and is entitled for recovery of possession.

5. Upon appeal filed by the plaintiff, learned first appellate Court vide judgment and decree dated 02.09.1998 dismissed the same and affirmed the judgment and decree of trial Court.

6. This Court vide order dated 15.02.1999 admitted the second appeal on the following substantial questions of law:-

"(i) Whether the findings of the Courts below that the defendant/respondent No.1 was the sole owner of the suit property, is legally justified"

(ii) Whether the counter claim of the defendant/respondent No.1 impleading the respondent/defendant Nos.2 to 6 as

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM

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defendants therein though the suit was not filed as against them, was rightly entertained and allowed by the Courts below ?"

7. Learned Senior counsel for the appellants submits that in presence of sale deeds (Ex.D/3 and D/4) and the recitals made therein, it cannot be said that the disputed house belongs to the defendant exclusively, but the oral evidence of the witnesses including the documentary evidence available on record shows that the disputed house came in possession of brother Mohd. Yakoob, in which the plaintiff is residing, which after death of Mohd. Yakoob was given to the plaintiff in his share. He further submits that in the Civil Suit, only the plaintiff Mohd. Shareef Khan and defendant Mohd. Hanif were party, therefore, counter claim could not have been filed by Mohd. Hanif including other persons namely Mohd. Habib, Mohd. Raees, Mohd. Shabbir and Mohd Nafees and Mansoor Ahmed and could not have been entertained and allowed by learned Courts below. He further submits that in any case, if the disputed house is not found to have fallen in the share of plaintiff, the defendant was not entitled for decree of more than 1/3 share because after death of Mohd. Yakoob, the plaintiff Mohd. Shareef Khan, the defendant/ Mohd. Hanif and another brother Mohd. Rafique would get 1/3 - 1/3 share each in the disputed house, as per provisions contained in Section 91, 95 and 99 of the Mahomedan Law.

8. For ready reference, relevant Sections 91, 95 and 99 of the Mahomedan Law are quoted as under:-

"91. Residuaries (1) All heirs other than Sharers are Residuaries. (2) The descendants h.1.s of Residuaries are also Residuaries.

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM

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Thus, sons, brothers, uncles and aunts are all Residuaries. Their descendants, therefore, are also Residuaries. For example, a son's daughter, being a descendant of Residuary (son), is also a Residuary."

"95. Succession among descendants The descendants of a person who, if living, would have taken as a Sharer, succeed as Sharers. The descendants of a person who, if living, would have taken as a Residuary, succeed as Residuaries."

"99. Brothers and sisters, without any ancestor If the deceased left no ancestors, but brothers and sisters of various kinds, the estate (minus the share of the husband or wife, if any) will be distributed among them according to the same rules as those in Hanafi law. The said rules are as follows:-

(i) Brothers and sisters of the full blood exclude consanguine brothers and sisters.

(ii) Uterine brothers and sisters are not excluded by brothers or sisters either full or consanguine, but they inherit with them, their share being 1/3 or 1/6 according to their number (see Table of Sharers, Nos. 6 and 7).

(iii) Full brothers take as Residuaries, so do consanguine brothers.

(iv) Full sisters take as Sharers (see Table of Sharers, No.8), unless there be a full brother in which case they take as Residuaries with him according to the rule of the double share to the male. Consanguine sisters also take as Sharers (see Table of Sharers, No.9) unless there be a consanguine brother with them in which case they take as Residuaries with him according to the same rule."

9. Learned senior counsel for the respondents supports the impugned judgment and decree passed by learned Courts below and submits that on

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM

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the basis of registered sale deed dated 13.05.1965, the defendant is exclusive owner of the property area 68'x68'and there was no question of partition, it being self acquired property of the defendant. However, after facing with the sale deeds (Ex.D/3 & D/4) and the statement of brother Mohd. Rafique (PW-3), he could not support the findings of learned Courts below and submits that the decree of possession as well as partition over 1/3rd share should be passed in the light of judgement of this Court dtd.16.08.2022 passed at Jabalpur in First Appeal no. 574/1997 (Kapoor Chand Vs. Laxmi Chand).

10. Heard learned counsel for the parties and perused the record.

Substantial Question of Law no.1:

11. Although, originally the entire plot along with super structure having an area 68'x68' was purchased vide registered sale deed dtd. 13.05.1965 (Ex.D/1) in the name of defendant, but from the oral evidence as well as from the registered sale deeds (Ex.D/3 and D/4), it is clear that the house which is standing in the name of defendant Mohd. Hanif was treated as joint property of four brothers and was divided into four parts among the four brothers namely Mohd. Shareef, Mohd. Hanif, Mohd. Rafique and Mohd. Yakoob.

12. Sale deed (Ex.D/3) shows that one part of the house was sold by defendant Mohd. Hanif to Abdul Vari on 30.05.1981. In the column of details of property of this sale deed, it is mentioned/specified "House of the share of Mohd. Rafique", meaning thereby, the property sold is the house of the share of Mohd. Rafique. In the entire evidence, there is no answer/rebuttal to this documentary evidence (Ex.D/3).

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM

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13. Further, the sale deed (Ex.D/4) also shows that one another part of the house was sold jointly by Mohd. Hanif and Mohd. Shareef to one Vahid Khan, which also recites that both bothers are owners of the house and the part of house sold is of the share of Mohd. Shareef.

14. As such after sale of two parts of the house, other two parts are remaining which are of the share of brother Yakoob Khan and defendant- Mohd. Hanif. Out of these two portions, one is already in possession of defendant Mohd. Hanif, in which he is residing as owner and another portion is of the share of brother Yakoob Khan, which is disputed house and is in possession of plaintiff.

15. In view of the aforesaid discussion, it can very well be said that although the entire house area 68'x68' was standing in the name of defendant, but it was treated to be joint family property and was divided into four brothers and the disputed house was of the share and possession of Yakoob Khan, who has already died issueless, therefore, the plaintiff- Mohd. Shareef, the defendant Mohd. Hanif and Mohd. Rafique being brothers would take equal 1/3 share in the disputed house.

16. As such in my considered opinion, learned Courts below were not justified in holding that the defendant-Mohd. Hanif was sole owner of the disputed house and in fact, in the light of the aforesaid oral and documentary evidence, the findings recorded by learned Courts below are perverse. As such the substantial question of law no.1 is decided in favour of the appellants/plaintiffs and against the respondent 1/defendant.

Substantial Question of Law no.2:

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM

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17. In the original plaint there are only two parties i.e. the plaintiff Mohd. Shareef and defendant Mohd. Hanif, but in the counter claim Mohd. Hanif has been shown as plaintiff and showing Mohd. Shareef as defendant 1, other five persons namely Mohd. Habib, Mohd Raees, Mohd. Shabbir, Mohd. Nafees and Mansoor Ahmed were also impleaded as defendants. Surprisingly, such type of counter claim was also entertained by learned trial Court, whose names have also been shown in the judgement and decree passed by learned Courts below. This procedure is not known to the law as provided under order VIII rule 6A CPC. As such upon perusal of the rule 6A CPC, I am of the considered opinion that the counter claim is maintainable against the plaintiff only and cannot be treated as a counter claim if included the persons, other than the plaintiff(s) and the learned Courts below gravely erred in entertaining the counter claim against the defendants 2-6.

18. Accordingly, the substantial question of law no. 2 is decided.

19. Counter claim was filed by defendant Mohd. Hanif for possession of the disputed house, which has been decreed by learned Courts below, but this Court has found the defendant Mohd. Hanif to be entitled only for 1/3 share in the disputed house, as such the judgment and decree passed by learned Courts below are modified to the extent that the defendant Mohd. Hanif is entitled for 1/3 share in the disputed house. Consequently, there shall be a preliminary decree for partition and separate possession of defendant's 1/3 share in the disputed house, which being house property, shall be partitioned through a court commissioner.

20. Accordingly, second appeal is partly allowed to the extent indicated above.

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM

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21. However no order as to costs.

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

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 12/13/2022 10:27:53 AM