- (1.) Heard Counsel for the parties and perused the records. This second appeal has been filed against the judgment and decree dated 22.2.1997 passed by the Civil Judge/Additional District Judge, Gorakhpur in Civil Appeal No. 451 of 1982 arising out of the judgment and decree dated 6.10.1982 passed by Munsif III, Gorakhpur in O.S. No. 40 of 1999 Smt. Krishna Kumari and after her Padam Singh and others and Sri Altaf Ali Khan and 6 others. The relief sought by the appellant is for setting aside the judgment and decree passed by the two Courts below dismissing the suit of the appellant with costs throughout.
(2.) Sri Q.U. Ansari, Advocate, appearing on behalf of the appellant has submitted that from the plaint it is apparent that the plaintiff-respondents had filed Suit No. 42 of 1977 for partition of 5/16 share in the property in dispute Ahata No. 510, on the allegations that it belonged to heirs of Faujdar Khan in which Smt. Rahmat Bibi is the second wife of Namdar Khan and her daughter Smt. Sakuran who were co-sharers to the extent of 1/20 share, Ibrahim had 1/5th share, who by sale deed dated 2.4.1967 transferred his share to Altaf Hussain. Subsequently Smt. Rahmat Bibi and Sakuran also transferred their 1/10 share to Iltaf Hussain, that Abbas Ali Khan who had 1/8 share in the property also transferred the same by registered sale deed dated 28.6.1966 (Ext. 5). Thus Altaf Hussain became owner of 5/16 share. He transferred the said shares by means of the registered sale deed dated 16.6.1997 (Ext. 4) in favour of the plaintiff who had filed suit for partition of their 5/16 share of the property as stated above.
(3.) Per contra the appellant who was defendant No. 6 in the suit denied the plaintiff's allegations in his written statement. His case was that property in dispute belonged exclusively to Hidayat Ullah Khan and Himayat Ullah Khan son of Namdar Khan and since Hidayat Ullah Khan died issueless, his entire share devolved upon his real brother Himayat Ullah Khan. After the death of Himayat Ullah Khan his share was succeeded by Smt. Majidan his wife and son Kifayat Ullah Khan who subsequently migrated to Pakistan; that after migration of his son, his share is said to have vested in the custodian and was purchased by Smt. Majidan who subsequently by registered sale deed dated 17.5.1960 transferred the property in favour of defendant No. 6 (appellant). In these circumstances, the appellant claims to be the owner and in possession of the property since then. It also appears from the record that during the pendency of the suit an application was filed for amendment in the written statement which was dismissed by the Court below.;