Mohammad Azhar Hashmi vs Mohammad Zafar Hashmi
2024 Latest Caselaw 4411 MP

Madhya Pradesh High Court

Mohammad Azhar Hashmi vs Mohammad Zafar Hashmi on 15 February, 2024

Author: Roopesh Chandra Varshney

Bench: Roopesh Chandra Varshney

                                 1
 IN    THE       HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
                  ON THE 15 th OF FEBRUARY, 2024
                  SECOND APPEAL No. 1006 of 2023

BETWEEN:-
MOHAMMAD AZHAR HASHMI S/O LATE HASAN
MOHAMMAD, AGED ABOUT 52 YEARS, OCCUPATION:
ADVOCATE, R/O BBG KI BAVDI KE PASS, DISTRICT
SHEOPUR (MADHYA PRADESH)

                                                             .....APPELLANT
(BY SHRI P.C.CHANDIL - ADVOCATE )

AND
1.    MOHAMMAD ZAFAR HASHMI S/O LATE HASAN
      MOHAMMAD, AGED ABOUT 47 YEARS,

2.    MOHAMMAD MAZAR HASHMI S/O LATE HASAN
      MOHAMMAD, AGED ABOUT 43 YEARS,

3.    MST SHAMIM HASHMI W/O LATE                HASAN
      MOHAMMAD, AGED ABOUT 77 YEARS,

      ALL R/O BBG KI BAVDI KE PASS DISTRICT
      SHEOPUR (MADHYA PRADESH)

                                                          .....RESPONDENTS
(BY SHRI RAJNISH SHARMA - ADVOCATE )

      This appeal coming on for admission this day, th e court passed the
following:
                                  ORDER

This appeal under Section 100 of CPC is directed by appellant/defendant against the concurring judgment and decree dated 24/2/2023 passed by District Judge, Sheopur in Regular Civil Appeal No. 71/2022 confirming the judgment and decree dated 15/9/2022 passed by Third Civil Judge, Junior Division,

Sheopur in Civil Suit No. 500041-A/2016. Plaintiffs' suit for declaration and permanent injunction was decreed.

2 . Facts necessary for disposal of this appeal are to the effect that respondents/plaintiffs have filed a suit for declaration and permanent injunction with respect to a house situated near Sabji Mandi with the pleadings that their father was the owner of the suit house which he got in succession from his father. Their father died on 8/6/2006 and after his death both plaintiffs and defendant are in joint possession of the suit house as joint owners. On the basis of a forge Hibanama of their father, defendant got his name mutated against the house in the record of Municipality and before four months he started claiming

exclusive rights over the suit house and threatened them to vacate the suit house. Therefore, suit was filed.

3. Defendant filed written statement and denied all the plaint allegations. It is specifically pleaded that 20 years back their father through oral Hiba gifted his property to all his sons out of which suit house wasgiven to him and everybody was happy with the same but after death of their father, plaintiffs with an intention to encroach upon the suit house, with mala fide intentions filed the present suit.

4. Based on the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Trial Court upon detailed examination of evidence on record, decreed the suit.

5. O n appeal, the first appellate Court,while deciding the appeal framed a s many as 4 questions and answered each question exhaustively with due advertence to oral and documentary evidence on record. The first appellate court has found that if a Hiba is done by a Muslim man then possession is required to be handed over immediately; however, in the instant case from Ex.

P/1 it is clear that there is no Hiba in respect of suit land. Even ex. P/1 is not a HIba, Partition deed or Will and therefore, Plaintiffs succeeded to prove that Ex. P/1 is not a Hiba and therefore, no right has been accrued in favour of the defendant on the basis of Ex. P/1 and therefore findings as recorded by the trial Court do not require any interference and ultimately dismissed the appeal.

6 . After having heard learned counsel for the parties and perusing the judgments of both the Courts below, this Court is of the view that the entire gamut of matter is in the realm of facts. The findings recorded by both the Courts below are pure findings of facts which in the opinion of this Court do not warrant any interference under Section 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.

(ROOPESH CHANDRA VARSHNEY) JUDGE JPS/-

JAI

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,

PRAKASH 2.5.4.20=287738d30aabaeda9b10cecdf179cec 865c7633f4cfb9e38ce14fcbb05b9522a, postalCode=474001, st=Madhya Pradesh, serialNumber=8D6BC1C9FCE36623D0BD6B807

SOLANKI 2A2D8C01433EBD48AE4F609F108CA8F8DE6B 522, cn=JAI PRAKASH SOLANKI Date: 2024.02.16 11:08:46 +05'30'