Rais Khan vs Saeeda Begum

Valmiki J Mehta, J.—This case is on the Regular Board of this Court since 3.1.2011. Today this case is effective item No. 6 on the Regular Board. No one appears on behalf of the parties, although it is 3:00 p.m. I have, therefore perused the record and am proceeding to dispose of the matter.

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 24.5.2001 whereby the suit of the Plaintiff/Respondent for partition and rendition of accounts is decreed.

The property in question is House No. 322, Kabir Basti, Malka Ganj, Delhi. The case of the Plaintiff/Respondent was that she was the daughter of Sh. Abdul Aziz who owned the property and who died intestate in the year 1983. It was pleaded that since the Appellant was refusing to partition the property and refusing to render the accounts for the rent receipts received from the tenants of the property, therefore the suit was filed. The Appellant/Defendant contested the suit on the ground that the Respondent/Plaintiff was not the daughter of Sh. Abdul Aziz. The findings of the Trial Court on this aspect are contained in issue Nos. 1 and 5 and the relevant portion of which reads as under:

ISSUES No. 1 TO 5

The question vital to all these issues is whether Plaintiff Saeeda Begum is the real daughter of Abdul Aziz or not. If she is able to prove that she is the offspring of Abdul Aziz, she will be entitled to inherit the estate left by Abdul Aziz along with Defendant No. 1 as residuary. If, on the other hand, it is found that she is stepdaughter of Abdul Aziz as DW1 Rais Khan has stated at the stage of evidence, she will not be entitled to inherit and, therefore, she will have no locus standi. Defendant No. 1 simply says in the written statement that Saeeda Begum has no locus standi to file the suit and that she is not his real sister. He does not elaborate further. When Saeeda Begum enters the witness box as PW1, a suggestion is made to her that she is the daughter of Mausi of Defendant No. 1. However, when Rais Khan examines himself as DW1, he states that Saeeda Begum is the daughter from the first husband of his mother. He admits that then a me of his mother is Aniz Fatima. Aniz Fatima has been examined as PW2 and she has set the controversy to rest. She has categorically stated that Plaintiff Saeeda Begum and Defendant Rais Khan are both her children from Abdul Aziz. DW2 Mohd. Abrar who was produced by Defendant No. 1 he, supports the Plaintiff and states that the name of Plaintiff''s father was Abdul Aziz. Thus, the evidence shows beyond doubt that the Plaintiff is the real sister of Defendant No. 1 and she is entitled to 1/3rd share in the property left by Abdul Aziz.

(Emphasis added)

The Trial Court has therefore rightly found the Respondent to be the daughter of Sh. Abdul Aziz because the wife of Sh. Abdul Aziz and the mother of both the Appellant and the Respondent specifically admitted that the Respondent was the daughter of Sh. Abdul Aziz. In fact the witness of the Appellant, DW2 Mohammad Abrar also supported the case of the Respondent/Plaintiff that Respondent''s/Plaintiff''s father was Sh. Abdul Aziz. The Trial Court was therefore justified in arriving at a finding that the Respondent/Plaintiff was the daughter of Abdul Aziz.

The second defence of the Appellant before the Trial Court was that Sh. Abdul Aziz was not the owner of the property and it was the Appellant who was the owner of the property. In this regard, the Trial Court has rightly held that it was Abdul Aziz who was the owner of the subject property. Para 8 of the impugned judgment deals with this aspect and which reads as under:

The next question is whether Abdul Aziz was the owner of the suit property. In this regard, Defendant No. 1 says in the written statement that he had built the property out of his own funds after the death of Abdul Aziz. At the stage of evidence, however, DW1 Rais Khan admits on cross-examination that the land underneath the property had been occupied by his father and that tin shades had been raised by his father. He also admits that the electric connection was in the name of Abdul Aziz. DW2 Mohd. Abrar testifies that the Defendant made pakka construction after collecting money from tenants. Thus, it emerges from the evidence that Defendant No. 1 did not spend a penny from his pocket in constructing the house. Whatever he spent on construction was received from tenants occupying the tin shades raised by Abdul Aziz. That being the position, the pakka construction also would be considered to be the property of Abdul Aziz and the Plaintiff would be entitled to have 1/3rd share therein.

(Emphasis added)

The Trial Court has thus rightly relied upon the admission of the Appellant in his cross-examination where he stated that the land underneath the property had been occupied by his father who built the tin sheds upon the same and the regular construction which was made by the Appellant was only from the rent received from the tenants i.e. the Appellant did not spend a single paisa from his own pocket. The Trial Court was therefore justified in coming to a finding that the Appellant did not purchase or occupy the land and that he also did not spend any money for the construction on the plot.

In view of the above, I do not find any illegality or perversity in the impugned judgment and decree, which calls for interference of this Court. The appeal being devoid of merits is therefore dismissed, leaving the parties to bear their own costs. The Trial Court record be sent back.