ABBAS KHAN Vs. MUHAMMAD ALI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession over half shares in properties specified in lists A and B of the plaint and for mesne profits and coats. The plaintiffs claim to be the heirs of one Mt. Taslima Bibi who died in January 1928, and alleged that she was the owner of these properties, having purchased the property in list A and having inherited the property in list B from her father. The defendant who is the husband of the deceased Mt. Taslima Bibi and would be entitled to a half share in the inheritance left by her, resisted the suit on the ground that the plaintiffs were not the residuary heirs of Mt. Taslima Bibi, that the property in list A had been purchased by the defendant himself out of his own money fictitiously in the name of Mt. Taslima Bibi and he is the owner thereof, and there was a further plea that in con-sequence of a previous proceeding in a revenue Court the plaintiffs were estopped from maintaining this claim "under the law relating to oaths" and Clause (2), Order 23, Rule 3, Civil P.C., and estoppel under Section 115, Evidence Act. At the trial the defendant's vakil made a statement that his client had no objection if the relief claimed by the plaintiffs as regards the property in list B were granted, irrespective of the fact whether the plaintiffs are related to Mt. Taslima Bibi or not (p. 17).

(2.) The learned Subordinate Judge without going into the evidence has disposed of the suit on preliminary questions of law. He has decreed the claim of the plaintiffs with regard to the property in list B as admitted by the defendant, but has dismissed the claim as regards the property in list A on the ground that in view of the previous proceedings in the mutation Court the plaintiffs are estopped from maintaining the claim. This finding is challenged in appeal. It is therefore necessary to mention in detail what happened in the revenue Court. Unfortunately neither the applications of the parties before the Assistant Collector nor the judgment of the Assistant Collector nor even the grounds of appeal before the Collector have been produced. The defendant was basing his defence on a plea of estoppel and in order to remove all ambiguities he should have produced these documents in order to show dearly what the dispute between the parties was.

(3.) All that we know is that the first revenue Court had decided a mutation case consequent upon the death of Mt. Taslima Bibi against the present plaintiffs, Abbas Khan and Mobin Khan, and in favour of the present defendant Muhammad Ali and the matter was taken up in appeal to the Collector by the present plaintiffs. In the appellate Court an application signed by Muhammad Abbas Khan personally and by Babu Bishnath Prasad, Mukhtar for Mobin Khan, was filed on 19 November 1928 (p. 69). It was verified by Muhammad Abbas in person and was filed and verified by Babu Bishnath Prasad, Mukhtar, on behalf of Mobin Khan (p. 71). It read as follows: In the above case it is submitted that if Muhammad Ali respondent swears by the Holy Book that according to Mahomedan law the appellants are not holders of right, judgment may be given against the appellants who shall not seek remedy anywhere.