:^^'@s;"'K^^^^ SSasals RRaph Os.iiito&a ^7 %..'?•• SVM IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL No. 12> ^—/ 2008 APPELLANT Plaintiff ^y^ ..VNJ^^jSs" ^^^" ...s^ RESPONDENTS defendants iantosh Kumar S/o Kanhyalal, aged about 32 years. R/o Village Surtara, Tahsil Katghora Distt. Korba (C.G.) VERSUS •^'1. Ayub Ali S/o Konda, aged about 36 year. 2. Taimir Ali S/o Subhan Ali, aged about 60 year. Yaqub Ali S/o Subhan Ali, aged aboyt 51 year All R/o Village Kasaniya Tahsil Kotghora Distf. Korba (C.G.) V^.. State of Chhattisgarh through Collector Korba Distt. Korba (C.G.) CIVIL^PPEALUNDER SECTION 100 OF THE CIVIL PROCEDURE CODE —^ i HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra S.A. No. 192 of Santosh Kumar. Versus Ayub Ali and others. ORDER Postforl-? -01-2011 Sd/- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar IVIishra APPELLANT RESPONDENTS Second Appeal No.192 / 2008 Santosh Kumar Versus Ayub Ali and others. Shri Subhash Yadav, counsel for the appeHant. Miss Sangeeta Mishra, Panel Lawyer for the State/ respondent No.4. SECOND APPEAL UNDER SECTION 100 OF C.P.C, ORDER (I? /01/2011) This is plaintifTs Second Appeat under Section 100 of the Code of Civil Procedure. Both the Courts below have dismissed the plaintiff's suit for declaration and permanent injunction. (2) Plaintiffs case, in short, was that he has purchased the iand from defendant No.2 Saiymir Ali and Yakub Ali both sons of Subhan Ali by registered saie-deed dated 06/04/1990. The lands earlier belong to Jahar Ali and Faij Ali. The plaintiff is in possession from the date of purchase, however the defendant No.1 started diggjng foundation for construction of go-down for Omprakash and Pawan Kumar Agrawal on which the plaintifF objected. The defendant No.1 stated that his name is recorded as Bhumiswami in the revenue records on which plainW instituted proceeding under Section 145 of Cr.P.C. which was rejected on 13/11/2001. On verification of records plaintiff came to know that the defendant No.1 has surreptitiously got recorded his name and he is trying to alienate the property. (3) The defendants No. 1 to 3, defended the su'rt by submitting that afier Jahar Ali and Faiz Ali ctied issuetess.the land was recorded in the name of .^^t^f*''^-;.. : .^".^«A"l"i%.. f£Zl\ is 1 \I^y -2— his mother Bhis Bibi. The defendant No.1 Ayub Ali and her mother Sakuran ^ Bi got possession of the iand belonging to their grand mother (Bhis Bibi) and his name was recorded as Bhumiswami in the year 1989 and thus he is in possession of the land since last 30-32 years. Thus, the defendant stated that on the date of registration of sale-deed by defendants No. 2 & 3 in favour of piaintiff on 06/04/1990, the defendant No.1 was the recorded owner of the suit property and as such the said defendante had no property 'm ffieir name and had no authority to execute sale-deed in favour of ptaintiff. (4) Both the Courts below have dismissed ptaintiffs suit after recording the finding that the defendant No. 1 became owner of property after death of Jahar Ali and Faiz Ali and as such the defendants No. 2 & 3 had no authority to execute the sale-deed in favour of plaintiff. The trial Court has found ftat in the absence of pleading as to whether the erstwhile owner of the property namely Jahar Ali and Faiz Ali were governed by Shiya Personal Law or Sunny Personal Law, with respect to Indian Muslims, it is presumed that they shal! be governed by Hanfi (Sunny) Law. Thus, the trial Court found that defendant Ayub is a son of the sister of the previous owner whereas the defendants No. 2 & 3 are the sons of the brother of the previous owner. Under the Sunny Law the mother and sister of the deceased, who were alive at the time of death of Jahar Ali and Faiz Ali. woutd become the owner by succession and that the defendants No. 2 & 3 were not entitled to succeed to property after death of Jahar Ali and Fate A!i. (5) Plaintiff/appellant has not been able to point out any illegatity in the said finding recorded by the Courts below with regard to the ent'rtlement of defendant No.1 to succeed to the property ofthe deceased. --t~ i' °S9!^ 3 •^ ^// -3- (6) It is to be seen that under the Hanfi Law of inheritance there are three classes of heirs namely (1) sharers, (2) residuaries and (3) distant kindred. The mother and sister ofthe deceased, through whom the defendant No.1 is claiming are the sharers whereas defendants No. 2 & 3 claims to be the brother's son of the deceased and would thus come within the meaning of the term residuaries. As sharers were alive at the time of death of Jahar Ali and Faiz Ali, it has rightly been held that the sharere of the deceased i.e. the mother and sister of the deceased were entitled to succeed to the property on the date ofdeath of Jahar Ali and Faiz Ali and through them the defendant No.1 would succeed the properiy. It is thus found that the defendants No. 2 & 3 were not entitlsd to succeed to the property of Jahar Ali and Faiz Ali and thus had no authority to execute the sale-deed in favour of plaintiff. (7) No substantial question of law arises for determination in this appeal which fails and is hereby dismissed. Sd/- prashant Kumar Mishra Judge ^