Madhya Pradesh High Court
Maqsood Hasan vs Zubeda Bi (Dead) Thr. Lrs ... on 21 June, 2022
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 21st OF JUNE, 2022
SECOND APPEAL No. 1127 of 2021
Between:-
1. MAQSOOD HASAN S/O MEHMOOD HASAN,
AGED ABOUT 66 YEARS, R/O MASJID MOHALLA
SEONIMALWA, DIST. HOSHANGABAD
(MADHYA PRADESH)
2. MAQBOOL HASAN S/O MEHMOOD HASAN,
AGED ABOUT 50 YEARS, R/O MASJID MOHALLA
SEONIMALWA DIST. HOSHANGABAD (MADHYA
PRADESH)
.....APPELLANTS/DEFENDANTS
(BY SHRI SUYASH MOHAN GURU, ADVOCATE)
AND
1. ZUBEDA BI D/O GULAB KHAN (SINCE
DECEASED) THR. LRS RAHMATULLAH S/O
AHMAD KHAN, AGED ABOUT 57 YEARS, R/O
MASJID MOHALLA SEONIMALWA, DIST.
HOSHANAGABAD (MADHYA PRADESH)
2. STATE OF M.P. THR. COLLECTOR DISTT.
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS/PLAINTIFFS
(BY SHRI SIDDHARTH GULATEE, ADVOCATE FOR RESPONDENT NO.1)
.......................................................................................................
T h i s appeal coming for admission as well as on interlocutory
applications this day, the court passed the following:-
Signature Not Verified
SAN
.......................................................................................................
Digitally signed by RAJESH KUMAR
Judgment reserved on : 07.05.2022
JYOTISHI
Date: 2022.06.23 19:29:45 IST
Judgment delivered on : 21.06.2022.
2
.......................................................................................................
JUDGMENT
The appellants/defendants have filed this appeal being aggrieved by the
judgment and decree dated 10.08.2021 passed by First Additional District
Judge, Hoshangabad in Regular Civil Appeal No.30013A/2013, whereby the
appeal filed by the appellants/defendants has been dismissed affirming the
judgment and decree dated 28.02.2013 passed by Civil Judge Senior Division,
Seonimalwa, District Hoshangabad in Civil Suit No.40A/2012 has been
affirmed.
2 . Admittedly, appellants and respondent No.1 are the legal heirs of
Rustam Khan. He had two sons namely Sohrab Khan and Gulab Khan. Nasia Bi
was the wife of Sohrab Khan. Both were died issueless. Thereafter, name of
Gulab Khan was recorded in revenue record. He died in the year 1971, his wife
was Kudrat Bi. They had four children, two sons namely, Mehmood Hasan and
Ahmedyar Khan and two daughters namely, Zubeda Bi and Sugra Bi. Zubeda
Bi was unmarried. Mehmood Hasan died in the life time of Gulab Khan.
Appellants/defendants are sons of Mehmood Hasan. Rehmatulla is son of
Sugra Bi.
3. Property in dispute is Khasra No.1 area 9.77 acres, Khasra No.2 area
1.00 acre, Khasra No.3 area 4.60 acres in total admeasuring 15.37 acres situated
at village Bildhi, Tehsil Seonimalwa, District Hoshangabad.
4. The respondent No.1/plaintiff - Zubeda Bi (since deceased) had filed a
civil suit for declaration, permanent injunction and to dismiss the nomination of
the appellants/defendants alleging that the suit properties belong to her. She
Signature Not Verified
SAN
further alleged that she purchased it from her father Gulab Khan on payment of
Digitally signed by RAJESH KUMAR
JYOTISHI
Rs.1500/- by registered sale deed dated 26.08.1955, thereafter her name was
Date: 2022.06.23 19:29:45 IST
mutated in the revenue records in respect of the suit lands. She also alleged that
suit property was not the ancestral property. It was self acquired property of
Gulab Khan. Therefore, in absence of any objection from the other LRs,
property was mutated in her name and it was in her possession. The respondent
No.1/plaintiff is in cultivating possession of the said land since 1955.
5. It has also pleaded by the respondents that on 20.07.1957, a
Bakhshishnama was executed in favour of respondent No.1/plaintiff (late
Zubeda Bi) by her father Gulab Khan, in which Gulab Khan himself shown that
Zubeda Bi is the owner of the suit property. On 19.11.2004, she executed a
Hibanama in favour of Rahmatullah, then she died on 28.03.2006. Thereafter, as
per the recital of Hibanam Rehmatullah become owner and possession holder
of suit property. But, the suit properties were fraudulently mutated in the names
of the appellants without knowledge of the respondent No.1/plaintiff. Hence,
she filed suit before the trial Court.
6. The appellants/defendants denied the pleadings of the plaintiffs stating
that Gulab Khan, father of Sugra Bi and Zubeda Bi executed the sale deed dated
26.08.1955 in favour of his daughters Zubeda Bi and Sugra Bi without any
consideration. Late Mahmood Hasan was son of Gulab Khan. Initially the
property belonged to one Sohrab Khan (brother of Gulab Khan). After his
death, name of his wife Nasiya Bi was recorded in the revenue records. Nasiya
Bi died issueless. She orally gifted the disputed property to Mahmood Hasan
and Maqsood Hasan. She died in the year 1951, therefore, the
appellants/defendants have become owner of the suit property. They are in
Signature Not Verified
SAN
possession of the suit property also. Unauthorisedly, Gulab Khan executed
Digitally signed by RAJESH KUMAR
registered sale deed in favour of Sugra Bi and Zubeda Bi, thus they filed
JYOTISHI
Date: 2022.06.23 19:29:45 IST
counter claim for declaration of their title over the suit property and also for
declaration of will and sale deed executed in favour of Sugra Bi and Zubeda Bi
as forged and illegal.
7. The trial Court in its judgment Para 35 has found that on the basis of
evidence and other material available on record, the possession of Zubeda Bi is
established and it was also found that the possession of the defendants was not
proved over the suit property. In Para 36 the trial Court has further observed
that because the issue involved in the case is regarding title and right, therefore,
it cannot be decided by the Revenue Officer and it ought to have been directed
to be proceeded to the Civil Court at that stage. On the basis of the registered
sale deed in favour of Zubeda Bi and Sugra Bi and Bakshishnama in favour of
Zubeda Bi, she was the owner. On the other hand, in view of evidence available
on record, it was found by the trial Court that the names of defendants have
been recorded in the revenue record illegally and defendants have failed to
prove that Naisa Bi wife of Sohrab Khan had orally gifted it to them. Therefore,
they cannot get any title on the basis of same. Thus, learned trial Court passed a
decree against the present appellants/defendants.
8. Similarly, the first appellate Court affirmed the judgment and decree
passed by the trial Court, vide judgment and decree dated 10.08.2021 passed
in Regular Civil Appeal No.30013A/2013. Learned lower appellate Court in para
9 of its judgment observed that the plaintiffs have examined Zubeda bi (PW-1),
Rahmatulla Khan (PW-2), Abdul Hameed (PW-3), Mohd. Aziz (PW-4), Ashok
Kumar Patel, Notary (PW-5) in their favour and they have adduced 22
documents as documentary evidence, which were not rebutted by the appellants
Signature Not Verified
SAN
from their oral testimony and the documents (Exh.D/1 to D/22). Suit property
Digitally signed by RAJESH KUMAR
JYOTISHI
was decreed in favour of the respondents and counter claim of the appellants
Date: 2022.06.23 19:29:45 IST
was duly rejected by the trial Court. Hence, first appeal filed by the appellants
was dismissed.
9. The impugned judgement and decree passed by the lower Appellate
Court has been challenged by the appellants before this Court on the grounds
that, the findings of the Courts below on issue Nos.1 & 2 are perverse and
unsustainable. It is also submitted that learned Courts below grossly erred in
deciding the issue Nos.5, 6, 7, 8 & 14 in favour of the respondents and in
granting injunction in favour of the respondent No.1 and also erred in permitting
Rahamatullah and his LRs to be substituted in place of Zubeda Bi on the basis
of Hibanama. The judgment and decree passed by the Courts below are
erroneous, illegal and liable to be set aside. Hence, they prayed to set aside the
impugned judgment passed by the learned Courts below.
10. Learned counsel for the respondent No.1 has supported the findings
recorded by learned Courts below and submitted that the impugned judgments
are based on proper appreciation of facts and evidence available on record.
Hence, this appeal is liable to be dismissed.
11. I have heard learned counsel for the parties and gone through the
material available on record.
12. Admittedly both the parties are Muslim. They are governed by Sunni
law. The disputed property belongs to Sohrab Khan as his self acquired
property and also treated as ancestral as has been held by first appellate Court
in para 14 of its judgment. In the year 1950-51, as the Nasia Bi was issue less,
after her death, name of Gulab Khan was recorded as "Mourusi Krishak
Signature Not Verified
SAN
(cultivator)" over the entire suit land. The said fact was also reflected from
Digitally signed by RAJESH KUMAR
Khasra of the year 1958-59, rights of Gulab Khan was also established by
JYOTISHI
Date: 2022.06.23 19:29:45 IST
Exhibit D-15 and D-17.
13. It is further found by the lower appellate Court that in the year 1958-
59, the names of Zubeda Bi and Sugara Bi were recorded in respect of the
disputed lands. But in the year 1962-63, the name of Gulab Khan was again
recorded in respect of the disputed lands. He was the exclusive owner of the
suit property. Hence, he has right to transfer his interest in favour of anyone.
Thereafter as per Exhibit D-20, for the year 1969, the name of plaintiff Zubeda
Bi was recorded as owner of the disputed lands. Because Gulab Khan executed
a registered sale deed Exh.P/1 in favour of his both the daughters. Sugra Bi and
Mehmood Hasan had expired in his life time.Thereafter again till the year 1997-
98, the name of Zubeda Bi was recorded in the revenue records in respect of
the disputed lands. On the other hand, on the basis of evidence available on
record, learned Courts below came to the conclusion that the appellants have
failed to prove that the suit properties were received by them on oral
Hibanama. The appellant Maqsood Hasan (DW-2) himself admitted that Gulab
Khan was in possession of suit properties in his life time. His son Mehmood
Hasan had already died in his life time. Then, Zubeda Bi was in possession of
the suit property. On the basis of registered sale deed Zubeda Bi become the
owner of suit property, she can transfer her interest in favour of Rehmatullah.
The learned lower appellate Court in its judgment from paragraphs 13 to 29 has
rightly appreciated the evidence and according to Muslim law gave the findings
in favour of the respondent No.1/plaintiff.
14. From perusal of the judgments passed by the trial Court as well as
Lower Appellate Court, it is apparently clear that no substantial question of law
Signature Not Verified
SAN
arises for consideration in this appeal. All the grounds taken by the appellants in
Digitally signed by RAJESH KUMAR
JYOTISHI
the memo of appeal have already been duly considered by the learned Courts
Date: 2022.06.23 19:29:45 IST
below. The findings recorded by the Courts below are based on proper
appreciation of the evidence available on record. The same cannot be treated as
perverse or illegal, warranting interference by this Court in exercise of powers
under Section 100 of the Code of Civil Procedure.
15. The Supreme Court in the case of Damodar Lal Vs. Sohan Devi
and others (2016) 3 SCC 78, after discussing the case law, has held that
strained effort made by High Court to arrive at a different finding was wholly
unwarranted, apart from being impermissible under law. Even if the finding of
fact is wrong, that by itself will not constitute a question of law. The wrong
finding should stem out of a complete misreading of evidence or it should be
based only on conjectures and surmises. The safest approach on perversity is
the classic approach on the reasonable man's interference on the facts. To him,
if the conclusion on the facts in evidence made by the Court below is possible,
there is no perversity, if the finding is perverse inadequacy of evidence or a
different reading of evidence is not perversity. The Supreme Court referring the
case of Krishnan Vs. Backiam 2007 12 SCC 190 has held that the High
Court in second appeal under Section 100 CPC cannot interfere with the
findings of fact recorded by the first appellate Court under Section 96 CPC.
Further, referring the case of Gurvachan Kaur Vs. Salikram (2010) 15 SCC
530, it has been observed that, it is settled law that in exercise of power under
Section 100 of the CPC, the High Court cannot interfere with the finding of fact
recorded by the first appellate Court which is the final Court of fact, unless the
same is found to be perverse.
Signature Not Verified
SAN
16. In view of the aforesaid discussion, this appeal being sans of merits,
Digitally signed by RAJESH KUMAR
is hereby dismissed.
JYOTISHI
Date: 2022.06.23 19:29:45 IST
(SMT. ANJULI PALO)
JUDGE
rj
Signature Not Verified
SAN
Digitally signed by RAJESH KUMAR
JYOTISHI
Date: 2022.06.23 19:29:45 IST
