NASIRUDIN Vs. NOOR MOHAMMAD

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit for declaration and possession.

(2.) A preliminary objection has been raised against the maintainability of the appeal on the ground that all the legal representatives of the deceased appellant Abdulla have not been brought on the record, and, therefore, the whole of the appeal abates.

(3.) ALIBUX , Khudabux, Nabibux and Hassainbux purchased a piece of land measuring 14 yds x 15'9 Girah by a sale deed Ex. 2, dated 7 -2 -1893 Nabibux died leaving behind three sons Mohammad Bux, Mahboob and Peerbux. Khudabux also died leaving behind three sons Molabux, Kalia and Alladir. Molabux died issueless. Kaliya died leaving behind 2 sons and one daughter. They are Abdulla (Defendant No. 1) Munir (defendant No. 2) and Mst. Muniran (defendant No. 3). Alladin died leaving behind one son Noor Mohammed, who is the plaintiff. The dispute is regarding the shares of Nabibux and Khudabux in the land purchased vide sale deed Ex. 2. The plaintiff Noor Mohammed's case is that he got the full share of Nabibux by a will made by Mohammed Bux and Peerbux in his favour, and he also got half share of that portion of land which belonged to Khudabux and other half portion of Khudabux went to Abdulla, Munir and Mst. Muniran defendants Nos. 1 to 3. It was alleged by him that in June 1959 Abdulla took forcible possession of Khudabux's share of land marked B and C in the site -plan Ex. 1 annexed to the plaint and made constructions on portion 'B', It was also alleged that Abdulla encroached upon a part of the share of Nabibux marked 'A' in the plan It was, therefore, prayed that it may be declared that Abdulla is entitled to the whole of the portion of the land which had fallen to the share of Nabibux and was consequently entitled to get possession of the portion marked 'A'. so also it was prayed that a decree for possession of the half shire in the portion marked 'B' and 'C' be granted in his favour. Abdulla and Munir filed separate written statements and the case proceeded exparte against Mst. Muniran Beth of them opposed the plaintiff's claim. The case was. however, mainly contested by Abdulla alone as Munir did not put in appearance after having filed the written statement. I am, therefore, mainly concerned with the defence put by Abdulla. His case was that the portions marked 'A', 'D' and 'E' had actually fallen in the share of Khudabux and not portions 'B' and 'C as pleaded by the plaintiff Noor Mohammad. As a natural corollary he also pleaded that the portions marked 'B' and 'C in the plan Ex. 1 had fallen to the share of Nabibux and the widow of Nabibux had gifted the whole of the share of Nabibux to him. In this view of the matter Abdulla's contention was that the plaintiff was not entitled to any relief.