- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) A double (or triple) storied house situate in Mohalla Khokharan Moradabad (hereinafter referred to as house in question) was admittedly owned by Smt. Taiyaba Khatoon who died issueless on 5-9-1945. She left behind her husband Mahboobur Rahman and her brother Mohd. Sami as her heirs. These two persons died in 1953. It is alleged that Mohd. Sami left behind four sons and two daughters however in respect of matter in dispute only two of the sons of Mohd. Sami are relevant, i. e. , Mohd. Rafi and Mohd. Razi. The other two sons and two daughters are reported to have migrated to Pakistan. Respondent No. 3 Smt. Akhtar Jahan is widow of Mohd. Rafi (Mohd. Rafi died in 1997 ). Mohd. Rafi claimed that Smt. Taiyaba Khatoon had executed a Will in his favour in the year 1943. Respondent Nos. 1 and 2 Usman Ali Sabri and Zafar Iqbal purchased the house in question from Smt. Akhtar Jahan widow of Mohd. Rafi in the year 1999. Late Mohd. Rafi let out the first floor of the house in question to one Abdul Rauf in or about 1950. Mohd. Rafi let out the ground floor of the house in question in or about 1960 to Hakim Ziaul Islam respondent No. 4 and real brother of the petitioner. The dispute in the instant writ petition relates to the ground floor of the house in question. Mohd. Rafi filed OS No. 157 of 1965 against Hakim Ziaul Islam in respect of ground floor. Suit was dismissed, appeal was allowed thereafter Second Appeal No. 204 of 1966 was filed in this High Court, which was allowed in part on 15-2-1970. The suit for recovery of rent was decreed but it was dismissed for eviction on the ground that notice was defective. Thereafter Mohd. Rafi again filed a suit for eviction and recovery of rent against Ziaul Islam in respect of ground floor after terminating the tenancy through fresh notice (SCC Suit No. 1613 of 1972 ). The suit was decreed on 15-5-1976 against which SCC Revision No. 160 of 1976 was filed by Ziaul Islam which was dismissed on 20-8- 1982. Against the said judgment and order writ petition was filed in this High Court, which was dismissed on 23-12-1982. Meanwhile review application had also been filed by Ziaul Islam in SCC Revision No. 160 of 1976 seeking review of order dated 20-8-1982 through which revision was dismissed. The review petition was allowed on 4-2- 1988. Ziaul Islam concealed the fact that his writ petition directed against order sought to be reviewed had been dismissed. Against order dated 4-2-1988 allowing the review petition, a writ petition was filed in this High Court being Writ Petition No. 9426 of 1988 which was allowed on 26-7-2005. Thereafter decree was put in execution in the form of execution case No. 28 of 2005. In the said execution case petitioner Riazul Islam filed application under Order XXI, Rule 97/101 CPC. In the said application, he claimed that he was the owner of the entire house in question through sale-deed of the year 1966 executed by Mohd. Razi (real brother of Mohd. Rafi) in his favour. Petitioner further claimed that Mohd. Razi was the owner of house in question as it had been orally gifted to him by Smt. Taiyaba Khatoon. Application of petitioner Riazul Islam was rejected by JSCC Moradabad on 8-5-2006. The said application had been registered as Misc. Case No. 51 of 2005. True copy of the said order is Annexure 4 to the writ petition. Against the said rejection order petitioner filed Misc. Appeal No. 41 of 2006. ADJ Court No. 7 Moradabad through judgment and order dated 14-8-2006, copy of which is Annexure 5 to the writ petition dismissed the appeal. This writ petition is directed against orders dated 8-5- 2006 passed by JSCC and dated 14-8-2006 passed by appellate Court/adj Moradabad.
(3.) AS far as first floor of the house in question is concerned which is not in dispute in this writ petition it was let out by Mohd. Rafi to Abdul Rauf. Mohd. Rafi filed suit for eviction against Abdul Rauf, which was decided in terms of compromise and Mohd. Rafi agreed that he would not evict Abdul Rauf who started paying rent to him. Thereafter Mohd. Rafi alleged that Ziaul Islam and his brother took forcible possession of first floor or part thereof. Mohd. Rafi filed original suit No. 511 of 1978 against Riyazul Islam and his brothers for their eviction from first floor. The said suit is still pending. In the suit which Mohd. Rafi had filed against Abdul Rauf in respect of first floor, Mohd. Razi filed impleadment application which was rejected. Riazul Islam and Sirajul Islam also filed impleadment application, which was rejected.;