- (1.) THIS is a defendants writ petition under Art.226 of the Constitution and arises out of suit filed by opposite party No.5 Shabbir for declaration of his share and separate possession over the partitioned property.
(2.) THE opposite party No.5 Shabbir had claimed share along with Kalua to the extent of 1/2 in the disputed property and had alleged that the petitioners Nos.1, 2 and 6 and Ghaffoor, opposite party No.6, in the present writ petition, had the remaining 1/2 share. According to the plaintiff opposite party Shabbir, the disputed land belonged to Smt. Manni, widow of Abdul Kareem and Smt. Nanhi, widow of Abdul Razzaq and both of them had equal share in the disputed land. It was admitted by the plaintiff that Smt. Nanhi had executed a sale deed regarding her 1/2 share in favour of Abdul Aziz, Abdul Majeed Abdul Ghaffoor and Abdul Sattar, hence the aforesaid transferees were entitled to 1/2 share. According to the plaintiff opposite party Shabbir, he alone with his brothers Kalua and Ghaffoor, was entitled to 1/2 share of Smt. Manni and Abdul Sattar, petitioner No.1, Aziz petitioner No.6 and Smt. Hafizee, whose descendants are some of the petitioners in this writ petition, were entitled to the remaining 1/2 share. The claim of the plaintiff was denied by Abdul Ghaffoor, Smt. Hafizee and Aziz through Annexure 5 attached with the writ petition. Their main defence was that that the claim of aforesaid Abdul Ghaffoor, Smt. Hafizee, Aziz and the petitioner Abdul Sattar was recognized by the consolidation authorities, hence the claim of the plaintiff was barred by the provisions of S.27 read with S.49 of the U.P. Consolidation of Holdings Act. It was asserted on behalf of the defendants that they had been in possession over the disputed land and that the plaintiffs suit was barred by S.34(5) of Act No. III of 1901 and various other pleas were taken.
(3.) THE Trial Court through its judgment dated 21 -9 -1973 decreed the plaintiffs suit. It appears that the trial court found that the plaintiff Shabbir, Abdul Ghaffoor, defendant No.1 and Kalua defendant No.16 (opposite parties Nos.5 to 7 in the present writ petition) were alone entitled to the disputed land. The sale deed executed on behalf of Smt. Nanhi in favour of petitioners Shabbir and Aziz, opposite party Ghaffoor and Smt. Hafizee was invalid as it was executed without valid permission from the Settlement Officer of Consolidation, hence no title accrued to the vendees, and the plaintiff along with Ghaffoor and Kalua being co -sharers, became entitled to the disputed property.;