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Mohd. Ismail and anr. Vs. Noor-ud-dIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Second Appeal No. 16 of 1979
Judge
Reported inAIR1986J& K14
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101 - Order 14, Rule 1; ;Muslim Law
AppellantMohd. Ismail and anr.
RespondentNoor-ud-dIn and ors.
Appellant Advocate Z.A. Shah, Adv.
Respondent Advocate K.N. Raina, Adv.
DispositionAppeal dismissed
Cases ReferredMuma Najar v. Nabir Najar
Excerpt:
- .....being there. it istrue that there is no issue framed by the trial court about the valuation of the suit property. the question which remains to be seen is as to whether this suit is bad for not framing the issue on valuation. if that issue was important or its decision would go to the root of the case, then the trial court will be said to have committed an error, but when without framing that issue finding can be arrived then defect of non-framing of issue is not at all fatal to the judgments of the courts below.10. i have examined the plaint and the written statement as also relief prayed for in the suit. respondent no. 1 has sought the declaration with consequential relief. declaration being about his ownership and about avoidence of sale deed executed by respondent no. 3 in favour of.....
Judgment:

M.L. Bhat, J.

1. Respondent No. 1 had filed a suit for declaration and possession in respect of a house situate at Samboora, Tehsil Pulwama on the ground that he and respondent No. 2 were reversioners of one Ghani Shah, owner of the house, who was their father's brother, and were entitled to inherit the house and seek its possession after his death. The said house is said to have been purchased by appellants from respondent No. 3 who claims himself to be the adopted son of Ghani Shah deceased. On this ground the sale deed dated 17-4-1973 is said to be void and ineffective as against the interests of respondents 1 and 2.

2. The suit was decreed by the trial Court of Munsiff Pulwama. The trial Court had also held that respondent No. 3 could not inheriton the basis of the alleged will also. On appeal the findings of the trial court were confirmed by the District Judge Anantnag. Hence this second appeal.

3. Appellants have urged that respondent No. 3 was adopted son of Ghani Shah and in the alternative they were entitled to inherit on the basis of will. It is also urged that the trial Court had failed to strike issue in respect of jurisdiction and if that issue was framed, it could be proved that the trial Court had no jurisdiction. Reliance was placed also on the basis of will alleged to have been written by Ghani Shah in favour of respondent No. 3. Plea of adverse possession was also set up as a defence and it is contended that the courts below misappreciated the evidence.

4. So far as the question of adoption of respondent No. 3 is concerned that is purely a question of fact. Two courts on appraisal of evidence have found respondent No. 3 not to be an adopted son of Ghani Shah. Therefore, in this second appeal that finding cannot be disturbed. Moreover it is to be pointed out that adoption as such is unknown to Muslims. However, for purposes of inheritance they may appoint an heir and appointment of heir is called as making a Pissar Parwardah. This is an incident of a custom. Therefore the custom, its existence and its being prevalent in the family of Ghani Shah was required to be proved. Burden of this was on respondent No. 3 and the appellants. Courts below have held that they have failed to prove this issue. Therefore respondent No. 3 cannot be held to be Pissar Parwardah of Ghani Shah. As to whether respondent No. 3 could inherit any portion of the disputed property on the basis of will is a matter for consideration. The will in his favour which is sought Lo be relied upon by the appellants is executed in his favour as being Pissar Parwardah of Ghani Shah. If he is not held a Pissar Parwardah, could he fall back upon the will, which was executed in his favour as Pissar Parwardah is in fact the short point for determination.

5. Mr. K. N. Raina appearing for the respondents has incited my attention to two unreported judgments of this Court. The first is Peer Jalal-ud-Din v. Syed Mohd. Shah, Civil 1st Appeal No. 38 of 69 decided on 15-1-1973 by a Division Bench of this Court. The other is Muma Najar v. Nabir Najar, Civil SecondAppeal No. 25 of 62 decided on 29-8-1962 by a Division Bench of this Court. In the former case it was held by the Division Bench that where a will recites that one has been adopted as a son and is held to get the property after the death of the testator, it is not a will which bequeaths a property, but is a recitation of adoption and on that basis will is made. However in the said case there was no pleading for claiming the property on the basis of will, therefore, it was held that if adoption fails, person claiming as adopted son cannot get anything on the basis of a will. The same principle is laid down in the second judgment referred to above.

6. From the perusal of the written statement it appears that respondent No. 3's title is based on his being Pissar Parwardah of Ghani Shah which is said to have been evidenced by a will also and the property is said to have vested in respondent No. 3 as being Pissar Parwardah. The will is casually mentioned because it has evidenced fact of adoption. Therefore, in the alternative respondent No. 3 cannot claim anything on will when his main plea of being Pissar Parwardah has been repelled by the Courts below. Will is not an independent document, it is a document which recites him as Pissar Parwardah and in that capacity he is given the property after the death of the testator. If the status and capacity of respondent No. 3 is not proved, he will not be entitled to get anything on the basis of will also.

7. Question of adverse possession is also amatter of fact Whether one has become owner by adverse possession and whether the real owner's title is extinguished by prescription is a pure question of fact which is to be pleaded and proved. In the present case there is no such proof by which it could be held that title of respondents 1 & 2 to the property is extinguished and it has vested by prescription in respondent No. 3.

8. So far as the plea of misappreciation of evidence by the trial Court is concerned, nothing has been pointed out in this regard. Therefore the contention of the appellant in this respect is also to be rejected.

9. It was contended that issue regarding valuation was not framed and the suit was decided without that issue being there. It istrue that there is no issue framed by the trial Court about the valuation of the suit property. The question which remains to be seen is as to whether this suit is bad for not framing the issue on valuation. If that issue was important or its decision would go to the root of the case, then the trial Court will be said to have committed an error, but when without framing that issue finding can be arrived then defect of non-framing of issue is not at all fatal to the judgments of the Courts below.

10. I have examined the plaint and the written statement as also relief prayed for in the suit. Respondent No. 1 has sought the declaration with consequential relief. Declaration being about his ownership and about avoidence of sale deed executed by respondent No. 3 in favour of the appellants. The consequential relief would be relief of possession. Unless pleas in respect of declaration are proved, respondent No. 1 would not be entitled to get a decree for possession. So the relief of possession was dependent on the relief of declaration. Declaration had two limbs; one declaration about status of the appellant No. 1 being a reversioner and entitled to inherit along with respondent No. 3 and the other sale deed executed by respondent No. 3 in favour of the appellants being void. Since respondent No. 1 was out of possession, therefore, under section 42 his suit for simple declaration would not be maintainable unless he would ask for further relief, which in the present case would be relief of possession, because that was available to him at the time of the institution of the suit. Therefore the present suit is a suit for declaration with further relief of possession. It is not a suit of possession simpliciter. It is well settled that in a suit for declaration where additional relief is claimed, jurisdictional value and the court-fee value is to be the same which is to be fixed by the plaintiff not on the value of the subject matter of property but for the relief which he claims. The jurisdictional value and value for court-fee being the same, court-fee is to be paid ad valorem. Therefore, the contention of the appellant in this regard cannot be accepted and non-framing of issue as regards valuation has not in any manner affected the jurisdiction of the trial Court and the trial Court had the jurisdicton to try the suit. Moreover this plea was not taken before the first appellate Court. The memo of appealfiled before the 1st appellate Court do not contain any such averment which is now raised in this second appeal for the first time.

11. For the reasons stated above, this second appeal fails and is dismissed with costs.


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