LRS OF MEERABUX AND ISMAIL Vs. RANCHHOD DAS

JUDGEMENT

(1.) DISPUTE relates to a plot of land marked vcln in the site plan annexed to the plaint which admeasures 80' east west and 49. 6' north south and which is situated in mohalla Sardarpura of Banner on the north of the Pol of Joshi Khimraj. Undoubtedly by a registered sale deed executed on June 7, 1937 and registered on July 15, 1937 Suleman Khan son of Anwarr Khan and Usman and Habib sons of Suleman Khan Pathan Musalmans of Bamer bad for a consideration of Rs. 499/-, sold a plot of land of two houses measuring 30 cubits east-west and 40 cubits north-south with boundaries specified therein to Usman son of Gheesa and his son Alladeen. Cubit is an old measurement, the length of the arm from the elbow to the tip of the middle finger and is from 18 to 22". The boundaries of this plot were specified in the sale deed Ex. 1 as follows:- East - 'parat' land of Shri Sardaro and Pancho. West - Way and gate of the plot sold opening on the way. North-Gali. South - House of Khatik Mirabux and Ismail.

(2.) USMAN son of Gheesa was father of Alladeen defendant No. 6 in the Civil Original Suit No. 184 of 1968 (old ). (13 of 1970-new ). instituted by Runchoddas respondent No. 1, Mira Prakash defendant No. 1 in this suit claimed himself to be son-in-law of USMAN son of Gheesa and according to him, USMAN had two children, namely, Alladeen defendant No. 6 (son) and Mst. Jahura (daughter ). Deen Mohammed defendant No. 4 is son of Meerabux from Mst. Jahura. Ismail defendant No. 2 was brother of Mira Prakash. Mst. Amina deceased defendant No. 3 was the widowed mother of Mira Bux and Ismail and Umaria defendant No. 5 was son of Ismail.

(3.) MR. A. L. Chopra appearing for the appellants frankly conceded that it was not established that Usman father of Alladeen had made a gift of the plot in suit in favour of his daughter Mst. Jahura. However, he contended that it had been admitted by the plaintiff- respondent No. 1 in his rejoinder to the written statement that the plot in dispute was owned and possessed by Usman. Usman was survived by his son Alladeen and his daughter Jahura. On the death of Usman, Mst. Jahura was also entitled to inheritance as heir of Usman and as daughter she was entitled to get 1/3 share in the plot left by Usman and the remaining 2/3 share was to go to Alladeen. It was pointed out that this argument was raised on behalf of the appellants before the First Appellate Court, the learned Civil Judge did not consider the point on the grounds that the question raised was a mixed question of law and fact and could not be allowed to be agitated for the first time in appeal.