IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR.
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ : PARVEZ USMANI
VERSUS
RESPONDENTS/ : KAMRAN & Ors
The
above named appellant/applicant/petitioner has affixed herewith a Court Fee
Stamp worth Rs. 185/- + Rs. /-
issuance of notice to the following respondents/non-applicants.
|
S.
No.
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Name &
address of the persons
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Process
fee paid
On
Merit on stay
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|
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
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KAMRAN,
Aged about 43 years, S/o Late Mr. Mehfooz Ahmed Usmani,
NAVED
AHMED, Aged about 39 years, S/o Late Mr. Mehfooz Ahmed Usmani,
TANVEER
AHMED, Aged about 46 years, S/o Late Mr. Mehfooz Ahmed Usmani,
JAVED
AHMED, Aged about 49 years, S/o Late Mr. Mehfooz Ahmed Usmani,
Ms.
RAHAT JAHAN, Aged about 36 years, D/o Late Mr. Mehfooz Ahmed Usmani,
Ms.
FARHAT JAHAN, Aged About 36, years, D/o Late Mr. Mehfooz Ahmed Usmani,
Mrs.
NAFISA, Aged about 68 years, W/o Late Mr. Mehfooz Ahmed Usmani,
No. 1
to 7 are all R/o House No. 09, Behind near Kachchi Mosque, Kabitpura,
Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
MOHAMMED
SOHEL USMANI, Aged about 48 years, S/o Late Mr. Zahoor Ahmed Usmani,
Ms.
SEEMA @ SEEMEEL KHAN, Aged about 51 years, D/o Late Mr. Zahoor Ahmed Usmani,
Mrs.
KAUSAR USMANI, Aged about 69 years, W/o Late Mr. Zahoor Ahmed Usmani,
No. 8
to 10 are all R/o House No. 77, Ram Nagar Colony, Lower Idgah Hills Bhopal,
District BHOPAL (Madhya Pradesh).
Mrs.
NAYALA KHAN, Aged about 38 years, D/o Late Mr. Zahoor Ahmed Usmani, W/o Mr.
Firoz Khan, R/o House No. 159/31, C- Block, Sharda Nagar, Nariyal Kheda,
Bhopal, District BHOPAL (Madhya Pradesh).
THE
STATE OF MADHYA PRADESH,
Through
the Collector, Office- Old Secretariat, Bhopal, District BHOPAL (Madhya
Pradesh).
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Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.15/-
Rs.5/-
[Extra]
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|
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Date
of order
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Claim valued
at
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Particulars
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08.07.2014
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S.
A.
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On
Admission and IA 78/2014 for grant of temporary injunction Only
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Jabalpur
Counsel for
–Appellant
Date
: /07/2014 Vijay Raghav Singh
1. KAMRAN,
Aged about 43 years, S/o
Late
Mr. Mehfooz Ahmed Usmani,
R/o
House No. 09, Behind near Kachchi Mosque, Kabitpura, Shahjahanabad, Bhopal,
District BHOPAL (Madhya Pradesh).
2. NAVED AHMED, Aged about 39
years,
S/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
3. TANVEER
AHMED, Aged about 46
years,
S/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
4. JAVED AHMED, Aged about 49
years,
S/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
5. Ms. RAHAT JAHAN, Aged about 36
years,
D/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
6. Ms. FARHAT JAHAN, Aged About 36
years,
D/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
7. Mrs. NAFISA, Aged about 68 years,
W/o
Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi Mosque,
Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
8. MOHAMMED
SOHEL USMANI,
Aged
about 48 years, S/o Late Mr. Zahoor Ahmed Usmani, R/o House No. 77, Ram Nagar
Colony, Lower
Idgah
Hills Bhopal, District BHOPAL (Madhya Pradesh).
9. Ms. SEEMA @ SEEMEEL KHAN,
Aged
about 51 years, D/o Late Mr. Zahoor Ahmed Usmani, R/o House No. 77, Ram Nagar
Colony, Lower
Idgah
Hills Bhopal, District BHOPAL (Madhya Pradesh).
10. Mrs.
KAUSAR USMANI, Aged about
69
years, W/o Late Mr. Zahoor Ahmed Usmani, R/o House No. 77, Ram Nagar Colony,
Lower Idgah Hills Bhopal, District BHOPAL (Madhya Pradesh).
11. Mrs.
NAYALA KHAN, Aged about 38
years,
D/o Late Mr. Zahoor Ahmed Usmani, W/o Mr. Firoz Khan, R/o House No. 159/31, C-
Block, Sharda Nagar, Nariyal Kheda, Bhopal, District BHOPAL (Madhya Pradesh).
12.THE
STATE OF MADHYA PRADESH,
Through
the Collector, Office- Old Secretariat, Bhopal, District BHOPAL (Madhya
Pradesh).
1. KAMRAN, Aged about 43 years, S/o
Late Mr. Mehfooz Ahmed Usmani, R/o
House No. 09, Behind near Kachchi Mosque, Kabitpura, Shahjahanabad, Bhopal,
District BHOPAL (Madhya Pradesh).
2. NAVED AHMED, Aged about 39 years,
S/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
3. TANVEER AHMED, Aged about 46 years,
S/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
4. JAVED AHMED, Aged about 49 years,
S/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
5. Ms. RAHAT JAHAN, Aged about 36 years,
D/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
6. Ms. FARHAT JAHAN, Aged About 36 years,
D/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
7. Mrs. NAFISA, Aged about 68 years,
W/o Late Mr. Mehfooz Ahmed Usmani, R/o House No. 09, Behind near Kachchi
Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya Pradesh).
8. MOHAMMED SOHEL USMANI, Aged about 48
years, S/o Late Mr. Zahoor Ahmed Usmani, R/o House No. 77, Ram Nagar Colony,
Lower Idgah Hills Bhopal, District BHOPAL (Madhya Pradesh).
9. Ms. SEEMA @ SEEMEEL KHAN, Aged about
51 years, D/o Late Mr. Zahoor Ahmed Usmani, R/o House No. 77, Ram Nagar Colony,
Lower Idgah Hills Bhopal, District BHOPAL (Madhya Pradesh).
10. Mrs. KAUSAR USMANI, Aged about 69
years, W/o Late Mr. Zahoor Ahmed Usmani, R/o House No. 77, Ram Nagar Colony,
Lower Idgah Hills Bhopal, District BHOPAL (Madhya Pradesh).
11. Mrs. NAYALA KHAN, Aged about 38 years,
D/o Late Mr. Zahoor Ahmed Usmani, W/o Mr. Firoz Khan, R/o House No. 159/31, C-
Block, Sharda Nagar, Nariyal Kheda, Bhopal, District BHOPAL (Madhya Pradesh).
12.THE
STATE OF MADHYA PRADESH,
Through the Collector,
Office- Old Secretariat, Bhopal, District BHOPAL (Madhya Pradesh).
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
The Registrar (Judicial)
High Court of Madhya
Pradesh
Principal Seat at
Jabalpur
IN THE
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ : PARVEZ USMANI
VERSUS
RESPONDENTS/ : KAMRAN & Ors
I N D E
X
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Sno
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Description
of documents
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Annexure
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Pages
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1.
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Index
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1
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2.
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Chronology of events
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2 TO 7
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3.
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Memo
of appeal
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8 TO 28
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4.
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List
of Documents
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29
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5.
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Copy of the Judgment and Decree dated 30.07.2012 passed by the Court of XVIth
Civil Judge, Class –II, Ms. Rajani Batham, Bhopal, District BHOPAL (Madhya
Pradesh) in the matter of Parvez Usmani V/s Kamran & Ors. in the file of
Regular Civil Suit No. 406-A of 2011
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A-1
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30 TO 42
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6.
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Certified Copy of the Judgment and Decree
dated 30.09.2013 passed by the Court of Xth Additional District Judge, Mr.
Vijay Malviya, Bhopal, District BHOPAL (Madhya Pradesh) in the matter of
Parvez Usmani V/s Kamran & Ors. in the file of Regular Civil Appeal No.
220-A of 2012
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A-2
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43 TO 52
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7.
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Application for temporary injunction with
affidavit
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53 TO 55
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8.
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Vakalatnama
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56 TO 58
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PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
IN THE
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ : PARVEZ USMANI
VERSUS
RESPONDENTS/ : KAMRAN & Ors
CHRONOLOGY OF EVENTS
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S.No
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Date
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Events
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1.
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04.10.1999
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Looking
to affection and love, Late Ms. Tahira Begum Usmani executed a will dated
04.10.1999 (Exhibit P-1)
whereby and whereunder bequeathing all the suit land out of her own free will
in favour of plaintiff who is son of her brother Mr. Iqbal Ahmed Ansari in
the presence of two witnesses. After the sad demise of Late Ms. Tahira Begum
Usmani plaintiff is cultivating the suit land and in peaceful possession of
the same within the knowledge of everyone.
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2.
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01.11.1999
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Late
Ms. Tahira Begum Usmani D/o Late Mr. Manzoor Ahmed Usmani was the owner in
possession of all the suit land until her death on 01.11.1999 (Exhibit P-2). The suit land
came into the share of Ms. Tahira Begum after death of her father and through
a partition among all the sons and daughter of Late Mr. Manzoor Ahmed Usmani.
After partition it was termed as private property of Ms. Tahira Begum. Late
Ms. Tahira Begum Usmani was unmarried throughout her life therefore there was
no legal heirs of her own.
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3.
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13.12.2006
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defendants
were having the knowledge of will dated 04.10.1999 (Exhibit P-1) as defendant No.
8 to 11 have submitted a joint affidavit dated 13.12.2006 (Exhibit P-6).
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4.
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14.12.2006
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In
furtherance thereto the defendant No. 8 to 10 have also executed a consent
deed dated 14.12.2006 (Exhibit P-7)
which was not denied by the contested defendants and no evidence was lead by
the rest of defendants.
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5.
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2010
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In
the year 2010, the defendant No. 1 to 11 illegally and by conspiring with
revenue officers, mutated their names in revenue records fraudulently showing
themselves to be the legal heirs of Late Ms. Tahira Begum Usmani.
In furtherthence thereto Mr.
Irafan S/o Mr. Sayeed Khan, who is the brother in law of defendant No. 1 to 5
threatened the plaintiff that they would sell the suit land as their names
have already been mutated in the revenue records so it is better to get the
suit land vacated after taking the crops. Since no title could be pass on on
the basis of revenue entires but defendants have adamant to sell the suit
land therefore the plaintiff right are in dilemma.
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6.
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20.12.2010
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Plaintiff sent a registered legal
notice dated 20.12.2010 (Exhibit
P-4) to defendant No. 12 as required under Section 80 of The Code Of Civil Procedure, 1908 (No. 5 of
1908), its postal receipt dated 20.12.2010 is Exhibit P-5. No reply from defendant No. 12 is received
inspite of the fact the Tahsildar, who mutated the name in the revenue
records, is sub-ordinate to defendant No. 12. In case the suit land is sold
to third person, legal complication would arise. Hence this suit.
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7.
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13.07.2011
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Appellant
/ plaintiff filed a regular civil suit on 13.07.2011 for a Decree of
Declaration that he is the owner of land situated at Survey No. 94, 95, 97/3,
& 104 of which new number are 200, 199/2, 198, & 196 having an area
ad-measuring 8.55 Acre of village Khajuri (Rata Taal) Tahsil- Huzur, District
BHOPAL (Madhya Pradesh) on the strength of will executed by Ms. Tahira Bagum
after her death. Further a Decree of permanent injunction has been sought for
that the defendants and their agents be retrained from interfering in the
peaceful possession over the suit land of 8.55 acre. Costs of the suit have
also been prayed for. It was also prayed that any other relief deemed fit and
proper may also be granted.
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8.
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28.10.2011
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Respondent
No. 1 to 7/ defendant No. 1 to 7 by filing written statement on 28.10.2011
denied all the adverse allegation and contention raised against them.
Respondent No. 8 to 12 / defendant No. 8 to 12 were proceeded ex-parte before
both the Courts below.
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9.
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30.07.2012
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Judgment and
Decree dated 30.07.2012 passed by the Court of XVIth Civil Judge, Class –II,
Ms. Rajani Batham, Bhopal, District BHOPAL (Madhya Pradesh) in the matter of
Parvez Usmani V/s Kamran & Ors. in the file of Regular Civil Suit No.
406-A of 2011.
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10.
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Feeling aggrieved by the same, plaintiff preferred
a Regular Civil Appeal under the provisions of section 96 of The Code Of Civil
Procedure, 1908 (No. 5 of 1908), which resulted in same fate.
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11.
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30.09.2013
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Judgment and Decree dated 30.09.2013
passed by the Court of Xth Additional District Judge, Mr. Vijay Malviya,
Bhopal, District BHOPAL (Madhya Pradesh) in the matter of Parvez Usmani V/s
Kamran & Ors. in the file of Regular Civil Appeal No. 220-A of 2012.
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12.
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Plaintiff
preferred a Second Appeal Under Section 100 Of The Code Of Civil Procedure,
1908 (No. 5 Of 1908) before the Hon’ble High Court of Madhya Pradesh
Principal Seat at Jabalpur against the Judgement and Decree passed by both
the Courts below.
|
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
.
IN THE
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ :
PARVEZ USMANI, Aged about 37
Plaintiff years,
S/o Mr. Iqbal Ahmed Usmani, R/o House No. 195, Housing Board Colony, Rusalli
Karond, Bhopal, Agriculturist Village Khajuri (Rata Tal), Tahsil- Huzur, District
BHOPAL (Madhya Pradesh).
VERSUS
RESPONDENTS/ 1. KAMRAN, Aged about 43 years, S/o
Defendants Late Mr. Mehfooz
Ahmed Usmani,
2. NAVED AHMED, Aged about 39
years,
S/o Late Mr. Mehfooz Ahmed Usmani,
3. TANVEER
AHMED, Aged about 46
years,
S/o Late Mr. Mehfooz Ahmed Usmani,
4. JAVED AHMED, Aged about 49
years,
S/o Late Mr. Mehfooz Ahmed Usmani,
5. Ms. RAHAT JAHAN, Aged about 36
years,
D/o Late Mr. Mehfooz Ahmed Usmani,
6. Ms. FARHAT JAHAN, Aged About 36
years,
D/o Late Mr. Mehfooz Ahmed Usmani,
7. Mrs. NAFISA, Aged about 68 years,
W/o
Late Mr. Mehfooz Ahmed Usmani,
No. 1 to 7 are all R/o House No. 09, Behind near
Kachchi Mosque, Kabitpura, Shahjahanabad, Bhopal, District BHOPAL (Madhya
Pradesh).
8. MOHAMMED
SOHEL USMANI,
Aged
about 48 years, S/o Late Mr. Zahoor Ahmed Usmani,
9. Ms. SEEMA @ SEEMEEL KHAN,
Aged
about 51 years, D/o Late Mr. Zahoor Ahmed Usmani,
10. Mrs.
KAUSAR USMANI, Aged about
69
years, W/o Late Mr. Zahoor Ahmed Usmani,
No. 8
to 10 are all R/o House No. 77, Ram Nagar Colony, Lower
Idgah
Hills Bhopal, District BHOPAL (Madhya Pradesh).
11. Mrs.
NAYALA KHAN, Aged about 38
years,
D/o Late Mr. Zahoor Ahmed Usmani, W/o Mr. Firoz Khan, R/o House No. 159/31, C-
Block, Sharda Nagar, Nariyal Kheda, Bhopal, District BHOPAL (Madhya Pradesh).
12.THE
STATE OF MADHYA PRADESH,
Through
the Collector, Office- Old Secretariat, Bhopal, District BHOPAL (Madhya
Pradesh).
[Respondent
No. 8 to 12 / defendant No. 8 to 12 were proceeded ex-partee before the Courts
below]
SECOND
APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908 (NO. 5 OF 1908)
{Claim
in appeal valued at Rs. 5,000/- for Declaration and Rs. 1,000/- for permanent
injunction Total Valued at Rs. 6,000/- and Court fees of Rs. 500/- for
Declaration and Rs. 120/- permanent injunction Total Rs. 620/- is paid herewith
accordingly as before the Courts below}
Being
aggrieved by the Judgment and Decree dated 30.09.2013 passed by the Court of
Xth Additional District Judge, Mr. Vijay Malviya, Bhopal, District BHOPAL (Madhya
Pradesh) in the matter of Parvez Usmani V/s Kamran & Ors. in the file of
Regular Civil Appeal No. 220-A of 2012 arising out of Judgment and Decree
dated 30.07.2012 passed by the Court of
XVIth Civil Judge, Class –II, Ms. Rajani Batham, Bhopal, District BHOPAL
(Madhya Pradesh) in the matter of Parvez Usmani V/s Kamran & Ors. in the
file of Regular Civil Suit No. 406-A of 2011, the appellant/ plaintiff named
above most humbly and respectfully begs to prefer the instant second appeal on
following facts, grounds and substantial question of Law amongst the others :
MATERIAL FACTS OF THE CASE :
1.
Appellant / plaintiff filed a regular civil suit
on 13.07.2011 for a Decree of Declaration that he is the owner of land situated
at Survey No. 94, 95, 97/3, & 104 of which new number are 200, 199/2, 198,
& 196 having an area ad-measuring 8.55 Acre of village Khajuri (Rata Taal) Tahsil-
Huzur, District BHOPAL (Madhya Pradesh) on the strength of will executed by Ms.
Tahira Bagum after her death. Further a Decree of permanent injunction has been
sought for that the defendants and their agents be retrained from interfering
in the peaceful possession over the suit land of 8.55 acre. Costs of the suit
have also been prayed for. It was also prayed that any other relief deemed fit
and proper may also be granted. Muslims
are governed by their personal (Sharia) law and by the rules of intestate
succession as provided in this law. Strictly speaking, there is no restriction
as to the person to whom a property can be given through a will. However, under
Muslim law, there are a few restrictions as to the persons to whom a bequest
can be made.
2.
The case of plaintiff in short is that Late Ms.
Tahira Begum Usmani D/o Late Mr. Manzoor Ahmed Usmani was the owner in
possession of all the suit land until her death on 01.11.1999 (Exhibit P-2). The suit land came
into the share of Ms. Tahira Begum after death of her father and through a
partition among all the sons and daughter of Late Mr. Manzoor Ahmed Usmani.
After partition it was termed as private property of Ms. Tahira Begum. Late Ms.
Tahira Begum Usmani was unmarried throughout her life therefore there was no
legal heirs of her own. Looking to affection and love, Late Ms. Tahira Begum
Usmani executed a will dated 04.10.1999 (Exhibit
P-1) whereby and whereunder bequeathing all the suit land out of her
own free will in favour of plaintiff who is son of her brother Mr. Iqbal Ahmed
Ansari in the presence of two witnesses. After the sad demise of Late Ms.
Tahira Begum Usmani plaintiff is cultivating the suit land and in peaceful
possession of the same within the knowledge of everyone. The will of a Muslim is not required to
be in writing. If it is in writing, it need not be signed and if it is in
writing and signed, it need not be attested. The Genealogy tree
plaintiff and defendants family are given herein below :
Late Mr. Manzoor Ahmed Usmani
Late Mr.
Mehfooz Ahmed Usmani Late Mr. Zahoor Ahmed
Usmani Mr. Iqbal
Ahmed Usmani Tahira
Begum
______________________________________________________________________
1.
KAMRAN 8. MOHAMMED SOHEL USMANI PARVEZ USMANI
2.
NAVED AHMED 9. Ms. SEEMA @ SEEMEEL KHAN (Pliantiff)
3.
TANVEER AHMED 10. Mrs. KAUSAR USMANI
4.
JAVED AHMED 11. Mrs. NAYALA KHAN
5.
Ms. RAHAT JAHAN
6.
Ms. FARHAT JAHAN
7.
Mrs. NAFISA
4.
In the
year 2010, the defendant No. 1 to 11 illegally and by conspiring with revenue
officers, mutated their names in revenue records fraudulently showing
themselves to be the legal heirs of Late Ms. Tahira Begum Usmani.
In furtherthence thereto Mr.
Irafan S/o Mr. Sayeed Khan, who is the brother in law of defendant No. 1 to 5
threatened the plaintiff that they would sell the suit land as their names have
already been mutated in the revenue records so it is better to get the suit
land vacated after taking the crops. Since no title could be pass on on the
basis of revenue entires but defendants have adamant to sell the suit land
therefore the plaintiff right are in dilemma.
5.
Plaintiff
sent a registered legal notice dated 20.12.2010 (Exhibit P-4) to defendant No. 12 as required under Section
80 of The Code Of Civil Procedure, 1908 (No. 5 of
1908), its postal receipt dated 20.12.2010 is Exhibit P-5. No reply from defendant No. 12 is received
inspite of the fact the Tahsildar, who mutated the name in the revenue records,
is sub-ordinate to defendant No. 12. In case the suit land is sold to third
person, legal complication would arise. Hence this suit.
6.
Respondent
No. 1 to 7/ defendant No. 1 to 7 by filing written statement on 28.10.2011 denied
all the adverse allegation and contention raised against them. Respondent No. 8
to 12 / defendant No. 8 to 12 were proceeded ex-parte before both the Courts
below.
7.
On the
basis of rival contentions of the parties and material brought on record, the
trial court framed as many as 3 issued to adjudicate upon the dispute between
the parties. These are as follows :
1.
Whether Late Ms. Tahira Begum Usmani executed a will
in favour of plaintiff in respect of Khasra number are 119, 140, 193, 196,
198B, 199/2, & 200, having an area ad-measuring 9.02 Acre of village
Khajuri (Rata Taal) Tahsil- Huzur, District BHOPAL (Madhya Pradesh) ?
1A If yes. Then whether plaintiff is owner in
possession of suit land on the strength of that will ?
2. Whether defendants
are trying to interfere over the suit land owned and possessed by plaintiff ?
2AWhether plaintiff is entitled for permement injunction ?
3.
Relief and Cost ?
8. The Ld. Trial Court has failed to consider the
various submissions made by the plaintiff and has mechanically without applying
of the mind dismissed the suit. Copy of Judgment and Decree dated
30.07.2012 passed by the Court of XVIth Civil Judge, Class –II, Ms. Rajani
Batham, Bhopal, District BHOPAL (Madhya Pradesh) in the matter of Parvez Usmani
V/s Kamran & Ors. in the file of Regular Civil Suit No. 406-A of 2011 is
filed herewith and marked as Anneuxre
A-1.
9. Feeling aggrieved by
the same, plaintiff preferred a Regular Civil Appeal under the provisions of
section 96 of The
Code Of Civil Procedure, 1908 (No. 5 of 1908), which resulted in same fate. Certified
Copy of the Judgment and Decree dated 30.09.2013 passed by the Court of Xth
Additional District Judge, Mr. Vijay Malviya, Bhopal, District BHOPAL (Madhya
Pradesh) in the matter of Parvez Usmani V/s Kamran & Ors. in the file of
Regular Civil Appeal No. 220-A of 2012 is filed herewith and marked as Annexure A-2. Hence this appeal
on following grounds amongst the others :
GROUNDS
URGED :
A. The Courts below
failed to appreciate that Under
Sharia law, Muslims can bequest one-third of their estate without consent of
heirs. Consent of heirs is required if bequest exceeds one third of estate.
Under Sunni law, bequest to an heir is invalid unless consent of heirs is
obtained after death of testator.
B.
The Courts below ought to have appreciated that
defendants were having the knowledge of will dated 04.10.1999
(Exhibit P-1) as defendant
No. 8 to 11 have submitted a joint affidavit dated 13.12.2006 (Exhibit P-6). In furtherance
thereto the defendant No. 8 to 10 have also executed a consent deed dated
14.12.2006 (Exhibit P-7)
which was not denied by the contested defendants and no evidence was lead by
the rest of defendants.
C.
The
Courts below failed to appreciate that Muslims are governed by their personal
(Sharia) law and by the rules of intestate succession as provided in this law.
Strictly speaking, there is no restriction as to the person to whom a property
can be given through a will. However, under Muslim law, there are a few
restrictions as to the persons to whom a bequest can be made.
D. The
Courts below committed grave error and irregularity in not considering that in
not considering that PW-2 Mohammed Jakaria Khan, who is one of the attesting
witness, clearly stated that he knows plaintiff as well as defendant and in his
presence Late Ms. Tahira Begum Usmani executed dated 04.10.1999 (Exhibit P-1) in his presence in
favour of plaintiff.
E.
The Courts below ought to have appreciated that will dated 04.10.1999
(Exhibit P-1) was typed as
per the instructions of Late Ms. Tahira Begum Usmani in the presence of another
attesting witness Rashid Khan. After typing it was read out to Late Ms. Tahira
Begum Usmani, who first signed in presence of two attesting witnesses and
thereafter both the attesting witness singed on the will in her presence. The will of a Muslim is not required
to be in writing. If it is in writing, it need not be signed and if it is in
writing and signed, it need not be attested.
F. The Courts below ought to have appreciated that Section
68 of the Evidence Act, according to the Hon’ble Supreme Court is attracted to
prove execution of the will. This provision requires examination of at least
one attesting witness for the purpose of proving its execution. In the absence
of examination of such a witness, the will would not be permitted to be used in
evidence. A combined reading of Section 68 of the Evidence Act and Section 63
of the Succession Act, 1925 would, therefore, require at least one attesting
witness to be examined and the said witness should speak not only about the
testator's signature or affixing his mark to the will but also that each of the
witnesses has signed the will in the presence of the testator as held by this
Hon’ble High court in the case of Illyas And Ors. vs Badshah Alias Kamla decided on 18 September, 1989
reported in AIR 1990 MP 334.
G. The
Courts below ought to have appreciated that
will dated 04.10.1999
(Exhibit P-1) was executed by
Late Ms. Tahira Begum Usmani out of her own free will and she bequeathed. The burden to prove that the will was
forged or that it was obtained under undue influence or coercion or by playing
a fraud is on the person who alleges it to be so as held by the apex Court in
the case of Daulat Ram & Ors vs
Sodha & Ors decided on 16 November, 2004 reported in 2005 (1) SCC 40.
H. Because the finding recorded by the
trial Court vitiated and base on no evidence as a person who is Bhumiswami of
the land can bequeath more than 1/3rd of her land as held by the
apex Court in the case Jamil Ahmad And Ors. vs 5Th Addl. Distt. Judge,
Moradabad ... decided on 9 October, 2001 reported in AIR 2001 SC 3067 = JT 2001 (8) SC 444 = 2001
(7) SCALE 143
I.
The courts below ought to hold that Late Ms. Tahira Begum Usmani executed a will
in favour of plaintiff in respect of Khasra number are 119, 140, 193, 196,
198B, 199/2, & 200, having an area ad-measuring 9.02 Acre of village
Khajuri (Rata Taal) Tahsil- Huzur, District BHOPAL (Madhya Pradesh).
J.
The
Courts below failed to appreciate that plaintiff is owner in possession of suit
land on the strength of that will and
defendants are trying to interfere over the suit land owned and
possessed by plaintiff therefore plaintiff is entitled for permanent injunction.
K.
The Court below
ought to have appreciated that no consent of all the legal heirs is required to
be obtained in case whole of suit land is bequeathed as held by the apex Court
in case the matter of Joseph Antony
Lazarus (D) by L.Rs. Vs. A.J. Francis reported in AIR 2006 SC 1895 = 2006 (3 ) SCR709 = 2006 (9 ) SCC515 = 2006(4 )SCALE17 = 2006(4
)JT321
L. The Court below fialed to appreciate
that whther all the other legal heirs have given their consent or not, it can
be seen by Court thorugh their conduct as held by the Hon’ble High Court of
Patna in the matter of Abdul Manan Khan vs Mirtuza Khan And Ors. decided on 8
February, 1990 reported in AIR 1991 Pat 154
M.The finding by the
courts below are perverse for the reason that the burden
of due execution of the Will and to remove doubt about the suspicious
circumstances surrounding the Will is on the person, who sets up the same as
held by this Hon’ble High Court in the case of Omprakash Sharma v. Smt.
Saraswati Bai and Ors., reported in 1998 (1) MPLJ 183.
N. The Court belo committed grave error and
irregularity in not conseridng that if in any application or written arguments
or during oral arguments, the citations have been mentioned or the cases
decided by the High Court or Apex Court are referred, it is duty of the Judge
to go through all those citations and he must explain in his order or judgment
as to why the principles laid down in those case laws, are not applicable to
the case on hand. Even if, any citation is not available to the Judge or it was
not produced at the time of arguments, the Judge could have asked the Advocates
to produce the citation and after perusal of that citation, he could have
passed the orders. Apart from that, if the Advocates do not extend their help
even then, it is duty of a Judge to make every effort to find out the correct
law as hled by this Hon’ble High Court in the case of Katua Patel And Anr. And Prabhu ... vs
State Of M.P. decided on 2 April, 2008 reported in 2008 (3) MPHT 43.
O. The
Court below failed to exercise its jurisdiction vested under the in considering
various judgments relied on plaintiff in appeal like : K. maddya Shetty V/s
Durga Parmeshwari reported in AIR 2001 Kerala 77, Wazir Bee & Ors. V/s
Kutti Begum reported in AIR 1986 Andhra Pradesh 159 and Sajati Bee V/s Fatima
Bee & Ors. reported in AIR 2002 Madras 484.
P.
That the learned Courts below has erred in
questions of law as well as of facts.
Q. That
the learned Courts below has not been provided an opportunity of hearing to the
appellant herein. Even the averments made by him in the written statement have
not been dealt with by the learned courts below.
R.
That the findings of the learned Courts below
are liable to be reversed as they are based on imagination, incorrect and wrong
appreciation of facts.
S.
That the Judgment of the learned Courts below is
erroneous and deserves to be reversed as it is based on mere surmises and
misconception of facts and law.
T.
The Judgment and Decree of the courts below is
perverse, malafide and not sustainable in law.
U. Because
if the order impugned Judgement and Decree, if allowed to stand, would occasion
a failure of justice and cause irreparable injury to the appellant against whom
it was made.
V.
The Judgement and Decree passed by the Courts
below are perverse, malafide and not sustaible in Law.
W.
Because the findings reached by the learned
Courts below is vitiated due to non-consideration of material evidence and by
consideration of inadmissible evidence.
X.
The Courts below committed grave error and
irregularity in considering the evicedence lead PW-2 who is attesting witness
and hold that it is an hearsay evidence.
Y.
The Courts below failed to interpret section
117/118 of Mahommedan Law in
its proper perspective. In this connection, reference
may be made to Section 117 of Mulla's Principles of Mahommedan Law, which is in
the following terms: -
“Bequests to heirs. - A bequest
to an heir is not valid unless the other heirs consent to the bequest after the
death of the testator. Any single heir may consent so as to bind his own share.
Explanation. In determining
whether a person is or is not an heir, regard is to be had, not to the time of
the execution of the will, but to the time of the testator's death”.
z. The Courts below committed
material irregularityand illegality in not considering that in Mullah's Mohamdan Laws (Section 118), it is
propounded that a Mahomedan cannot dispose of by will more than a third of the
surplus of his estate after payment of funeral expenses and debts. The bequest
in excess of the legal third cannot take effect, unless other heirs consent
thereto, after the death of the testator. Mullah has relied upon Hedaya. 671
(page 141) which pronounced that wills are declared to be lawful in the Koran
and the traditions and all our doctors, moreover, have concurred in this
opinion." The limit of one third, however, is not laid down in the Koran.
This limit derives sanction from a tradition reported by a Abee Vekass. It is
said that the prophet paid a visit to Abhee Vekass while the latter was ill and
his life was despaired of. Abhee Vekass had no heirs except a daughter and he
asked the Prophet whether he could dispose of the whole of his properties by
will, to which the Prophet replied saying that he could not dispose of the
whole, nor even two-thirds, nor one- half but only one-third. Though the limit
of one third is not prescribed by the Koran, there are indications in the Koran
that a Mahomedan may not so dispose of his property by will as to leave his
heirs destitute. If the heirs do not consent, the remaining two- third must go
to the heirs in the shares prescribed by the law. The consent need not be
express. It may be signified by conduct showing a fixed and unequivocal
intention.
Caveat : That
No notice of lodging a caveat by opposite parties is received to appellant
PRAYER
It is
therefore most humbly and respectfully prayed that Judgment and Decree dated
30.09.2013 passed by the Court of Xth Additional District Judge, Mr. Vijay
Malviya, Bhopal, District BHOPAL (Madhya Pradesh) in the matter of Parvez
Usmani V/s Kamran & Ors. in the file of Regular Civil Appeal No. 220-A of
2012 arising out of Judgment and Decree dated
30.07.2012 passed by the Court of XVIth Civil Judge, Class –II, Ms.
Rajani Batham, Bhopal, District BHOPAL (Madhya Pradesh) in the matter of Parvez
Usmani V/s Kamran & Ors. in the file of Regular Civil Suit No. 406-A of
2011, may kindly be set aside with costs throughout in the larger interest of
Justice.
PLACE : JABALPUR
DATE : ADVOCATE FOR
APPELLANT
SUBSTANTIAL QUESTION OF LAW
1)
Whether in the
facts and circumstances of the case the findings reached by the
learned Courts below is vitiated due to non-consideration of material evidence
and by consideration of inadmissible evidence ?
2)
Whether in the
facts and circumstances of the case will dated 04.10.1999
(Exhibit P-1) was executed by
Late Ms. Tahira Begum Usmani in favour of plaintiff, proved ?
3)
Whether in the
facts and circumstances of the case Under Sharia law, Muslims can bequest one-third of their
estate without consent of heirs. Consent of heirs is required if bequest
exceeds one third of estate. Under Sunni law, bequest to an heir is invalid unless
consent of heirs is obtained after death of testator ?
4)
Whether in the
facts and circumstances of the case the Courts below could not hold it valid
for more than 1/3rd share of the property, as that is the limit of testamentary
power of a Muslim (see Section 118 of Mulla's Principle of Mohammadan Law) ?
5) Whether in the facts and circumstances of the
case the Courts below ought to have hold that burden to prove that the will was
forged or that it was obtained under undue influence or coercion or by playing
a fraud is on the person who alleges it to be so as held by the apex Court in
the case of Daulat Ram & Ors vs
Sodha & Ors decided on 16 November, 2004 reported in 2005 (1) SCC 40 ?
6) Whether in the facts and circumstances of the
case the Will of Late Ms. Tahira Begum Usmani is genuine and the land bequeathed by Late
Ms. Tahira Begum Usmani in favour of
the plaintiff under it could be treated as inherited land of plaintiff in view
of the Jamil Ahmad
And Ors. vs 5Th Addl. Distt. Judge, Moradabad ... decided on 9 October, 2001
reported in AIR 2001 SC 3067 = JT 2001
(8) SC 444 = 2001 (7) SCALE 143 ?
7)
Whether in the
facts and circumstances of the case consent of all the legal heirs is required
to be obtained in case whole of suit land is bequeathed as held by the apex
Court in case the matter of Joseph
Antony Lazarus (D) by L.Rs. Vs. A.J. Francis reported in AIR 2006 SC 1895 = 2006 (3 ) SCR709 = 2006 (9 ) SCC515 = 2006(4 )SCALE17 = 2006(4
)JT321 ?
8) Whether in the facts and circumstances of the
case both the Courts below were justified in dismissing the suit filed by
plaintiff ?
IN THE
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ : PARVEZ USMANI
VERSUS
RESPONDENTS/ : KAMRAN & Ors
LIST OF DOCUMENTS
|
S.No
|
Description of document
|
Date of document
|
Original copy
|
Number of page
|
|
1.
|
Judgment and Decree passed by the Court of
XVIth Civil Judge, Class –II, Ms. Rajani Batham, Bhopal, District BHOPAL
(Madhya Pradesh) in the matter of Parvez Usmani V/s Kamran & Ors. in the
file of Regular Civil Suit No. 406-A of 2011
|
30.07.2012
|
XEROX Copy
|
12
|
|
|
Judgment and Decree passed by the Court of Xth
Additional District Judge, Mr. Vijay Malviya, Bhopal, District BHOPAL (Madhya
Pradesh) in the matter of Parvez Usmani V/s Kamran & Ors. in the file of
Regular Civil Appeal No. 220-A of 2012
|
30.09.2013
|
Certified Copy
|
10
|
PLACE : JABALPUR
DATE : ADVOCATE FOR
APPELLANT
IN THE
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ : PARVEZ USMANI
VERSUS
RESPONDENTS/ : KAMRAN
& Ors
APPLICATION
UNDER ORDER 39, RULE 1 & 2 READ WITH SECTION 151 OF THE CODE OF CIVIL
PROCEDURE, 1908 FOR GRANT OF TEMPORARY INJUNCTION
Appellant
/ Plaintiff named above most humbly and respectfully beg to submit as under:
1.
Plaintiff has filed the instant second under
Section 100 of the Code of Civil Procedure, 1908 against the Judgment and
Decree dated 30.09.2013 passed by the Court of Xth Additional District Judge,
Mr. Vijay Malviya, Bhopal, District BHOPAL (Madhya Pradesh) in the matter of
Parvez Usmani V/s Kamran & Ors. in the file of Regular Civil Appeal No.
220-A of 2012 arising out of Judgment and Decree dated 30.07.2012 passed by the Court of XVIth Civil
Judge, Class –II, Ms. Rajani Batham, Bhopal, District BHOPAL (Madhya Pradesh)
in the matter of Parvez Usmani V/s Kamran & Ors. in the file of Regular
Civil Suit No. 406-A of 2011, whereby and whereunder the suit filed by the
plaintiff has been dimssied by the Courts below.
2.
As per the averments made in the memo of appeal,
appellant has a good prima facie case and hope to succeed in it. If during
pendency of appeal, respondent No. 1 to 7 is not restrained by an Order of
temporary injunction restraining them from creating third party interest over
the suit land or from alienating it, the appellant would suffer irreparable
loss and injury. The balance of convenience too lies in his faovur as he is the
lawful owner of the suit lands.
3.
From the facts and circumstance, narrated above
in the preceding paras, it is expedient in the interest of justice the
respondent No. 1 to 7 be restrained from alienating or creating the third party
interest over the suit lands.
An
affidavit in support of this application is being filed herewith.
PRAYER
It is,
therefore most humbly and respectfully prayed that during pendency of the
instant appeal, the respondent No. 1 to 7 /plaintiff may kindly be restrained
by order of temporary injunction restraining them from alienating or creating
third party interest over the suit land, in the larger interest of justice.
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
IN THE
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ : PARVEZ USMANI
VERSUS
RESPONDENTS/ : KAMRAN & Ors
AFFIDAVIT
I, PARVEZ USMANI, Aged about
37years, S/o Mr. Iqbal Ahmed Usmani, R/o House No. 195, Housing Board Colony,
Rusalli Karond, Bhopal, Agriculturist Village Khajuri (Rata Tal), Tahsil-
Huzur, District BHOPAL (Madhya Pradesh),the
above named deponent, solemnly affirm and state on oath as under:
1. That I am the appellant in the above
mentioned appeal and am fully conversant with the facts deposed to in the appeal.
2. That the contents of paragraphs 1 to 3 of
the accompanying application are true to my personal knowledge and the contents
of paragraphs are based on legal advice, which I believe to be true. No
material has been concealed and no part is false.
JABALPUR
DATED : DEPONENT
VERIFICATION
I, PARVEZ USMANI, the above named deponent do hereby
verify on oath that the contents of the affidavit above are true to my personal
knowledge and nothing material has been concealed or falsely stated. Verified
at ______this______day of _______
DEPONENT
APPENDIX 1-A
FORMAT OF V A K A L A T N A M A
[Rules 4 (1) of the Rules framed under the Advocates Act,
1961]
IN THE
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SECOND
APPEAL NO. 13 OF 2014
APPELLANT/ : PARVEZ USMANI
VERSUS
RESPONDENTS/ : KAMRAN & Ors
I, the appellant named below do hereby
appoint, engage and authorize advocate (s) named below to appear, act and plead
in aforesaid case / proceeding, which shall include applications for
restoration, setting aside for ex - parte orders, corrections, modifications,
review and recall of orders assed in these proceedings, in this Court or in any
other Court in which the same may be tried / heard / proceeded with and also in
the appellate, revisional or executing Court in respect of the proceedings
arising from this case / proceedings as per agreed terms and conditions and
authorize them to sign and file
pleadings , appeals, cross objections, petitions, applications,
affidavits, or the other documents as may be deemed necessary and proper for
the prosecution / defence of the said case
in all its stages and also agrees to ratify and confirm acts done by them as if
done by me.
In witness whereof I do hereby set my hands to these presents, the
contents of which have been duly understood by me, this ___ day of January, 2014 at Jabalpur.
Particulars
(in block letters) of each Party Executing Vakalatnama
|
Name and father s / Husband s Name
|
Registered Address
|
E-Mail Address (if any)
|
Telephone Number (if any)
|
Status in the case
|
Full Signature/
**Thumb Impression
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
|
PARVEZ
USMANI, Aged about 37 years, S/o Mr. Iqbal Ahmed Usmani,
|
R/o
House No. 195, Housing Board Colony, Rusalli Karond, Bhopal, Agriculturist
Village Khajuri (Rata Tal), Tahsil- Huzur, District BHOPAL (Madhya Pradesh).
|
|
93001-51937
|
APPELLANT
|
|
Accepted
Particulars
(in block letters) of each Advocate Accepting Vakalatnama
|
|
Full
Name & Enrollment No. in State Bar Council
|
Address
for Service
|
E-mail
Address (if any)
|
Telephone
Number (if any)
|
Full
Signature
|
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
1.
|
VIJAY
RAGHAV SINGH
EN.
No. M. P. / ADV / 1554 / 2003
|
SEAT
NO. 93, GOLDEN JUBILEE BUILDING, CHAMBER NO. 317, VIDHI BHAWAN, HIGH COURT
PREMISES, JABALPUR 482 001
|
IDEA 98261-43925
|
|
|
|
2.
|
VIJAY
SHRIVASTAVA, EN. No. M. P. / ADV /
949/ 2006
|
SEAT
NO. 81, HALL NO. 1, FIRST FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR
482 001
|
NIL
|
RIM 93015 04927
AIRTEL 97554 82448
IDEA 97539 13103
|
|
|
3.
|
AMIT
KUMAR KHARE,
EN.
No. M. P. / ADV / 1291/ 2006
|
HOUSE
NO. 1483 / 17, SARASWATI COLONY, BEHIND PARIJAT BUILDING, CHERITAL, JABALPUR
482 001
|
amitkumarkhare2012@gmail.com
|
BSNL 94258 66726
LAND LINE
0761 - 2345 004
|
|
*Score out which is not applicable
** The thumb impression shall be attested by a literate
person giving above particulars.
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