Srihari (Dead) Through Lr. Smt. Ch. ... vs Syed Maqdoom Shah & Ors

2. Brief facts of the case are that one Qamaruddin Ali Khan was original owner and pattadar of agricultural land bearing S.Nos. 41 to 43 situated in Village Kokapet. The land was purchased by Khadar Hussain Khan through a registered sale deed, who died in the year 1942. Khadar Hussain Khan died issueless as an unmarried person, leaving behind his real sister Shahzadi Bee and two step brothers namely Feroz Khan and Khadar Nawaz Khan (plaintiff). Khadar Hussain Khan remained in possession and enjoyed the property in suit as absolute owner till his death in the year 1942 (year 1352 Fasli). It is pleaded by the plaintiff that after death of Khadar Hussain Khan the property was succeeded by his real sister Shahzadi Bee, and two step brothers namely Feroz Khan (died on 22.1.1978) and Khadar Nawaz Khan (plaintiff). On the death of Feroz Khan in the year 1978, his share is inherited by his widow Habib Khatoon (Defendant No.1) and children Moin Khatoon (Defendant No.2), Zehra Khatoon (Defendant No.3), Tehera Khatoon (Defendant No.4), Sughra Sameena Khatoon (Defendant No.5), Kaneez Fatima Khatoon (Defendant No.6), Butool Khatoon (Defendant No.7), Aysha Khatoon (Defendant No.8) and Khaderalikhan (Defendant No.9). A suit (O.S.No. 471 of 1987) was instituted by plaintiff Khadar Nawaz Khan for partition of his 1/4th share from plot S. Nos. 41 to 43 measuring area Ac.49.24 gts situated in aforesaid village Kokapet. It is further pleaded by the plaintiff that after death of Feroz Khan, plaintiff and defendant nos. 1 to 11 are in joint possession of the property. It is alleged by him that defendant no. 12 (Srihari) had no concern with the property in suit but he is trying to claim right over the property on the basis of some document said to have been executed by one of the co-sharers. Therefore the plaintiff felt that he is unable to enjoy his property, in joint possession with the original co-sharers as such he filed suit for partition of his 1/4th share.

9. It appears that three applications viz. A.S.M.P. No.11880 of 2004, A.S.M.P. No. 1098 of 2005 and A.S.M.P. No.1099 of 2005 were moved on behalf of the defendants for declaration of their shares in the preliminary decree passed in A.S No. 734 of 1991 arisen out of Suit No.471 of 1987. The High Court by exercising powers contained in Section 151, and Section 152 read with Section 153 of the Code, disposed of these applications vide order dated 21.4.2005 which is challenged before us. The High Court by its order dated 21.4.2005 allowed the above mentioned applications and directed that half share belonging to Syed Maqdoom Shah and Syed Hussain Shah (heirs of Shahzadi Bee), 1/4th share of Basheer Khatoon, Quadir Hussain Khan, Rabia Khan, Razia Moiuddin, Dr. Masood Nawaz and Mohammad Yousuf Ali Khan (heirs of Khadar Nawaz Khan), and 1/4th share of Habib Khatoon, Moin Khatoon, Zehra Khatoon, Tehera Khatoon, Sughra Sameena Khatoon, Kaneez Fatima Khatoon, Butool Khatoon, Aysha Khatoon and Khaderalikhan (heirs of Feroz Khan) be partitioned.

a) A preliminary decree be passed declaring the plaintiff is entitled for 1/4th share in the matrooka properties i.e. land Survey Nos. 41, 42 and 43 admeasuring Ac 49-24 guntas situated at Kokapet Village, Rajendranagar Revenue Mandal, RR District and a Commissioner be appointed for partition be delivered to the plaintiff to the extent of his share, if due to any legal hitch the court finds that the property is not partition able then the property be put in auction and sale proceeds be paid to the plaintiff to the extent of his 1/4th share in the interest of justice.

b) Cost of the suit to be awarded;

18. Now we re-produce the last sentence of judgment and order passed by the Appellate Court – High Court of Andhra Pradesh in first appeal A.S. No. 734 of 1991 whereby suit for partition is decreed – “The suit is accordingly decreed and appeal is allowed with costs”.

23. For the reasons as discussed above, we do not find force in these appeals which are liable to be dismissed. Accordingly, the appeals are dismissed. No order as to costs.

….…………………………………………..J (SUDHANSU JYOTI MUKHOPADHAYA) ………………………………………………J (PRAFULLA C. PANT) NEW DELHI, SEPTEMBER 16, 2014.