HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 37 of 2003 Mohommad Ali & others …. Defendants/Appellants .. Versus Ahmad Ali & others … Plaintiffs/Respondents Mr. A.K. Sharma, Advocate for the appellants. Mr. I.S. Mehra, Advocate for the respondents. 1st September, 2009 Hon’ble Sudhanshu Dhulia, J. A suit bearing no. 95/85 was filed by the plaintiffs for partition. This suit was decreed in favour of the plaintiffs on 2.5.1994 with 1/16th share of the property declared in the name of the plaintiffs. However, the plaintiffs being aggrieved by this share filed an appeal being no. Civil Appeal No. 24 of 1994 by which the share of the plaintiffs has been increased to 1/4th from 1/16th. This second appeal is by the defendants against the judgment and decree of the 1st appellate court. The distribution of the shares, however, hinges on the sole question as to whether the plaintiff i.e. Barkat is entitled to the share of Smt. Sahabjadi (mother of Barkat) or not. Since the plaintiffs and defendants are related to each other and the suit pertains to partition of property, it is necessary to mention the family pedigree which is admittedly as follows : 2 Natthan I ___________________________________________________________________________ Ghissa Nihala Hasnu Ghollu Mallu _____________ _______________ _______________ Gulab Alladia Kadar Nyadar Wajira Raja Sakar Kallu Saddik Sahabjadi Res. No. 4 (wife) Jani Faridu Mirhasan Mohd. Ali Ghummi Respondent No.1 Atik Hasan Res. No. 5 _____________________ ___________ Gula Mohd. Mirhasan Rorha Rahmat Res. No. 2 Res. No. 3 (Deceased) ____________________ _____________________ Saini Mangta Rahamtulla Abdulla Barkat ___________________________ Habib Mohabbat Ali Sarafat Ali __________________________ Res. No. 14 Res. No. 15 Res. No. 16 Raham Ilahi Kasim Yasin Yamin Res. No. 17 Res. No. 18 Res. No. 19 Res. No. 20 Barkat i.e the plaintiff was born by the wedlock of Saini and Sahabjadi. Consequently, as per plaint averments, Sahabjadi married Alladia who was uncle in relation and after the death of Alladia the property devolved in the share of Barkat as per the plaint averments. The trial court recorded the finding that there is no relevant material on record to prove that Smt. Sahabjadi ever married Alladia and the only document on record is an order passed by an administrative authority in suit no. 2/1939 in which there is only allegation by the plaintiff Sahabjadi that she is widow of Alladia. There is no conclusive finding that Sahabjadi is widow of Alladia. However, merely because of the order in case no. 2/1939 the lower appellate court has given a finding that Smt. 3 Sahabjadi being the widow of Alladia and Barkat being her son are entitled for share of Alladia. The substantial questions of law on which second appeal is admitted are as follows : “1. Whether the disputed property has been distributed into the successors except the BAITHAK and whether the finding recorded by the lower appellate court is at all sound in law? 2. Whether Sahabjadi has been married to Alladia, which this relation is prohibited. Alladia is the uncle of Sri Saini who was the husband of Sahabjadi?” There is absolutely no material on record to show that Smt. Sahabjadi ever married Alladia and, therefore, the property of Alladia cannot devolve on Barkat. On this, the finding of the lower appellate court is absolutely perverse. The findings of the trial court that Smt. Sahabjadi never married Alladia, on the other hand, are based on the material evidence which is on record particularly the order passed by the Munsif, Roorkee in suit no. 10/80 in which it has been held that Smt. Sahabjadi is not a widow of Alladia. Since this is the sole issue involved here, this Court is of considered view that the findings recorded by the appellate court on the issue are absolutely perverse. Second appeal, therefore, is liable to be allowed and is hereby allowed. Judgment and decree dated 11.3.2003 passed by the lower appellate court in Civil Appeal No. 24 of 1994 Ahmed Ali and others v. Mohommad Ali and others is set aside and the judgment and decree dated 2.5.1994 passed by the trial court is upheld. (Sudhanshu Dhulia, J.) 1.9.2009 Avneet 4