Rajasthan High Court
Matloob Husain vs Smt.Jahira Khatoon on 4 April, 2024
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
[2024:RJ-JP:15727]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 113/1990
1. Matloob Husain son of Shri Manjoor Hussain, resident of Bara
Kumedan Sahab (deceased) through legal heirs.
1/1 Kaniz Kulsum wife of Late Shri Matloob Hussain
1/2 Saleha Akhtar @ Sultan D/o Late Shri Matloob Hussainwife
of Shri Zafar Sadiz Rizvi
1/3 Tanveer Zehra Rizvi@ Nagma, D/o Late Shri Matloob Hussain
¼ Shabib Zehra Rizvi @ Huma, D/o Late Shri Matloob Hussain
1/5 Shama Zehra Rizvi @ Rehana, d/o Late Shri Matloob Hussain
W/o Shri Haider Raza
all are residing at Bara Ajmer Singh, Bajaria Road, Dholpur
2. Husan Mujaffar son of Sayyed Ali Khan, resident of Bara
Kumedan, Dholpur
3. Smt. Razia Khatoon widow of Shri Sayed Ali Khan, resident of
Bara Kumedan Dholpur
----Appellant
Versus
1. Smt. Zahira Khatoon wife of Shri Ameer Hasan, Rizvi, resident
of Bara Kumedan Dholpur
2. Humayun Raza son of Shri Ameer Hasan Rizvi, resident of
Bara Kumedan Dholpur
3. Smt. Batool D/o Ameer Hasan Rizvi W/o Habib Mohammed,
C/o Habib Mohammed H. No. A/692, Block-A, North Nazimabad,
Karachi, Pakistan
4. Smt. Sultana D/o Ameer Hasan Rizvi, C/o Habib Mohammad
H. No. A/692, Block-A, North Nazimabad, Karachi, Pakistan
5. Smt. Chunia @Ameer Fatma D/o Ameer Hasan Rizvi W/o
Sardar Ahmed, resident of 407/B, Shafir Bazar, Tandajam,
District Hyderabad, Sindh Pakistan
6. Smt. Fareh Diba D/o Ameer Hasan Rizvi W/o Shri Alam R/o B-
102, Abdul Fazal Enclaw, Part Ist, Near Harikothi, Okhla, New
Delhi-25
7. Ilmas D/o Ameer Hasan Rizvi C/o Smt. Zahira Khatoon Bara
Kumadan Sahib, Dholpur
8. Baby @ Razana Khatoon D/o Ameer Hasan Rizvi C/o
ZahiraKhatoon Bara Kumedan Sahib, Dholpur
9. Ram Narain, resident of Bara Teliyan Bazaria Road, Kothi,
Dholpur
10. Munnalal resident of Bara Teliyan Bazaria Road, Kothi,
Dholpur
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[2024:RJ-JP:15727] (2 of 6) [CFA-113/1990]
11. Bhola S/o Suwa Teli resident of Bara Teliyan Bazaria Road,
Kothi, Dholpur
12. Fazal son of Shri Mustaga Hussan, resident of Bara Teliyan
Bazaria Road, Kothi, Dholpur
13. Naramio son of Shri Mustafa Hussan, resident of Bara
Teliyan Bazaria Road, Kothi, Dholpur
14. Raffo D/o Shri Mustafa Hussa, resident of Ganeshpura,
District Murena, Madhya Pradesh
15. Anno D/o Shri Mustafa Hussan, resident of Ganeshpura,
District Murena, Madhya Pradesh
16. Munni D/o Shri Mustafa Hussan, resident of Ganeshpura,
District Murena, Madhya Pradesh
17. Smt. Ram Pyari widow of Shri Unmadi Lal, Resident of Bara
Kumedan Sahib Bazaria Road, Kothi Dholpur.
18. Shri Niwas son of Shri Unmadi Lal (died during the pendency
of appeal) through Lrs
18/1 Smt. Padma wife of Shri Niwas Resident of Bara Kumedan
Sahib Bazaria Road, Kothi Dholpur
18/2 Shri Amit son of Shri Niwas Resident of Bara Kumedan
Sahib Bazaria Road, Kothi Dholpur.
18/3. Ku. Saleshi D/o Shri Niwas Resident of Bara Kumedan
Sahib Bazaria Road, Kothi Dholpur.
19. Yatinder Chandra son of Unmadi Lal, Resident of Bara
Kumedan Sahib Bazaria Road, Kothi Dholpur.
20. Govind son of Unmadi Lal, Resident of Bara Kumedan Sahib
Bazaria Road, Kothi Dholpur.
21. Subhash Chadra son of Unmadi Lal, Resident of Bara
Kumedan Sahib Bazaria Road, Kothi Dholpur.
22. Chanda D/o Unmadi Lal, Brahmin, Resident of Bara Kumedan
Sahib Bazaria Road, Kothi Dholpur.
23. Munni D/o Unmadi Lal, Resident of Bara Kumedan Sahib
Bazaria Road, Kothi Dholpur.
24. Smt. Asrafi Devi Widow of Shri Lalu Maish, resident of Bara
Kumedan Sahib Bazaria Road, Kothi, Dholpur
25. Punia @ Ram Baivaish resident of Mohalla Pachoripara, Tehsil
Bari, District Dholpur
26. Ram Gopal son of Shri Ramji Lal Vaish, resident of Bara
District Dholpur
27. Bheekam Chan son of Shri Ramji Lal, resident of Bara
District Dholpur
28. Ganesh Kumar son of Shri Ramji Lal resident of Bara District
Dholpur
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[2024:RJ-JP:15727] (3 of 6) [CFA-113/1990]
29. Smt. Raj Kumari d/o Shri Ramji Lal W/o Mahesh Chan Vaish,
resident of Sada Bad, District Mathura, Uttar Pradesh
30. Smt. Maya Kumari D/o Shir Ramji Lal wife of Tundra Ram,
resident of Daulatabad, District Agra, U P
31. Leela Kumari D/o Ramji Lal, resident of Bari, District Dholpur
32. Ramjani son of Phode, resident of Bara Kumedan Sahib,
Bazaria Road, Kothi Dholpur died during the pendency of the
suit. Plaintiffs were exempted from substituting his Lrs.
----Respondent
For Appellant(s) : Mr. M. M. Ranjan, Senior Counsel with
Mr. Rohan Agarwal, Adv.
For Respondent(s) : Mr. Ashok Mehta, Senior Counsel with
Mr. Sandeep Sharma, Adv.
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
DATE OF JUDGMENT 04/04/2024
This Civil First Appeal has been filed by the appellants-
plaintiffs (for short 'the plaintiffs') against the judgment and
decree dated 09.03.1990 passed by Additional District & Sessions
Judge, Dholpur in Civil Suit No.63/69, whereby the suit for
partition of joint property filed by the plaintiffs has been
dismissed.
Plaintiffs had filed a suit for partition against the
respondents-defendants (for short 'the defendants'). The
defendants filed the written statement.
On the basis of pleadings of the parties, the trial court
framed the following issues :-
(1) Whether the suit has been correctly valued & court fee paid is
sufficient?
(2) Whether the previous suit No.18 of 1955 of the court of the
Civil Judge, Dholpur was dismissed on 14.11.58? If so, to what
Effect?
[2024:RJ-JP:15727] (4 of 6) [CFA-113/1990]
(3) Whether the properties mentioned in schedules A, B, C & D
belonged to Sarva Shree Talib Hussain, Mir Hydere Ali, Syed
Muzaffar Hussain & Abid Ali respectively?
(4) Whether the plaintiffs are entitled to get half share in the suit
properties ?
(5) Whether the defendants No.2 to 14 have unnecessarily been
impleaded?
(6) Whether the defendants are in adverse possession of the
properties?
(7) Whether the defendants except No.1, 7, 13 and 14 are
bonafide purchasers for valuable consideration ?
(8) Whether the suit is within limitation?
(9) Whether the plaintiffs are estopped from denying the exclusive
title of the defendants in the suit properties?
(10) Whether the plaintiffs, the nephews & the sons of the
nephews of this declared Shree Mohd. Hussain are the legal heirs
of late Shree M. Hussain?
(11) Whether the will accepted by late Shri Mohd. Hussain in
favour of Shri Amir Hasan Rijvi is against law? In the alternative,
even if this will is taken to be genuine, Late Shri M. Hussain could
not have bequeathed more than 1/3 share of his 1/2 share in this
disputed property, and as late Shri M. Hussain had already sold
more than 1/2 of this disputed property in his life time, this will is
ineffective?
(12) Whether Shri Amir Hasan Rijvi is a trespasser on this
disputed property & has no right to recover rent from the tenants
kept by late Shri M. Hussain & if so to what effect?
[2024:RJ-JP:15727] (5 of 6) [CFA-113/1990]
(13) Whether Shri Amir Hussain Rijvi has withdrawn Rs.1800/- of
late Shri M. Hussain from the Bank & if so, what effect?
(14) Is this defendant Amikr Hasan Rijvi entitled for Special costs
& if so, to what effect?
(15) Relief?
Trial court vide judgment and decree dated 09.03.1990
dismissed the suit filed by the plaintiffs.
Learned senior counsel for the plaintiffs submits that the trial
court wrongly dismissed the suit filed by the plaintiffs. Plaintiffs in
their plaint and by way of evidence proved that they had joint
possession over the disputed property. They had also proved that
Imambara situated at Bari was in their possession and thus part of
the disputed property was in their possession. Deceased
defendant had paid the rent of the disputed property to the
plaintiffs. So, plaintiffs rightly filed the suit on court fee of
Rs.200/-.
Learned senior counsel for the plaintiffs further submits that
the trial court had erred in holding that since the previous suit
filed by the plaintiffs was dismissed, that shall be treated to have
been dismissed under Order 17 Rule 3 CPC. Learned senior
counsel for the plaintiffs further submits that the trial court had
erred in holding that the present suit was barred under Order 9
Rule 9 CPC.
Learned senior counsel for the plaintiffs further submits that
the trial court had also wrongly came to the conclusion that the
present suit was filed after about 12 years. So, judgment and
decree of the trial court be set aside.
[2024:RJ-JP:15727] (6 of 6) [CFA-113/1990]
Learned senior counsel for the defendants has opposed the
arguments advanced by learned senior counsel for the plaintiffs
and submitted that the trial court elaborately discussed the
evidence led by the parties and rightly dismissed the suit filed by
the plaintiffs. Learned senior counsel for the defendants also
submitted that since previous suit was dismissed, so plaintiffs had
no right to file the present suit, as it was barred under Order 9
Rule 9 CPC. Learned senior counsel for the defendants also
submitted that present suit was filed. After 12 years of denial by
the defendants, plaintiffs cannot take plea of adverse possession.
So, present appeal be dismissed.
I have considered the arguments advanced by learned senior
counsel for the plaintiffs as well as learned senior counsel for the
defendants.
Trial court while dismissing the suit filed by the plaintiffs
elaborately discussed the evidence led by the parties. Since
previous suit filed by the plaintiffs was dismissed, so, present suit
was barred under Order 9 Rule 9 CPC. Plaintiffs failed to adduce
the evidence with regard to their possession on the disputed
properties. So, the trial court rightly came to the conclusion that
suit filed by the plaintiffs was not maintainable on the court fee of
Rs.200/-. So, in my considered opinion, judgment and decree
dated 09.03.1990 passed by the trial court does not call for any
interference. So, present appeal being devoid of merit, is liable to
be dismissed, which stands dismissed accordingly.
Pending application(s), if any, stand(s) dismissed.
(NARENDRA SINGH DHADDHA),J
Jatin /02
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