Mohd. Khaliq and Others vs Mohd. Yunus and Others

Hon''ble Sibghat Ullah Khan, J.—Heard Sri Ramendra Asthana, learned counsel for the appellants and Sri S.K.Mehrotra, learned counsel for the respondent No.1.This is plaintiffs'' second appeal arising out of O.S. No.361 of 1993. In theplaint plaintiffs appellants claimed that their grand-mother Smt. Sharifan had 1/4th share in the house in dispute and even though on 11.06.1962 she hadsold her share through registered sale deed in favour of Gulam Nabi, howeverthe sale deed was void as specific portion of the house in dispute was soldwhile Smt. Sharifan had unspecified share hence thereafter on 21.04.1964 sheexecuted an oral gift in favour of her sons and daughters i.e. plaintiffs or theirfathers and mothers. It was further pleaded in the plaint that in case sale deeddated 11.06.1962 was held to be illegal, plaintiffs'' share was 7/36 in the housein dispute, however if the sale deed was held to be valid then plaintiffs had11/72 share as they had also inherited the share of Smt. Miskin Bano, whowas married to Mohd. Idris father of plaintiffs No.1 to 4. The trial court heldthat sale deed executed by Smt. Sharifan on 11.06.1962 was perfectly valid.Accordingly, the suit was not decreed for 7/36 share, however it was decreedfor 11/72 share, i.e. the share of Smt. Miskin Bano. Plaintiffs did not file anyappeal. Defendant respondent No.1 filed appeal. Obviously it was only inrespect of 11/72 share of the plaintiffs which had been decreed by the trialcourt. In spite of it, lower appellate court wasted lot of time in upholding thesale deed of 1962. Half of the judgment of the lower appellate court isregarding validity of sale deed dated 11.06.1962. It was utterly unnecessary. In respect of share of Smt. Miskin Bano lower appellate court held that it hadbeen gifted to respondent No.1. The findings appear to be prima facie illegalas they are not based on any evidence. Even date of alleged oral gift by Smt.Miskin Bano in favour of respondent No.1 has not been mentioned in thejudgment.

Accordingly, the appeal is admitted on the following substantial question of law:

Whether the finding of the lower appellate court that Smt. Miskin Bano hadorally gifted her share in the house in dispute to defendant respondent No.1 iserroneous in law as it is based on no evidence and even the date of the allegedoral gift is not mentioned in the judgment of the lower appellate court?Issue notice. Steps to serve unrepresented respondents shall be taken bothways i.e. through ordinary process as well as registered post.

Issue notice. Steps to serve unrepresented respondents shall be taken both ways i.e. through ordinary process as well as registered post.

Plaintiffs do not appear to be in actual use and occupation of any part of the house in dispute. In the plaint itself most of the plaintiffs have been shown to be residents of other localities like Mohalla Khalilsharki, Bijlipura while house in dispute is situate in Mohalla Anta.

Accordingly, it is directed that until further order no party shall alienate any part of the house in dispute.