Gular Tabasum Vs Aaman Isha (Deleted) through Lrs

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Digitally signed by NADIM MOHLE

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 147 of 2003

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Gular Tabasum D/o Abdul Rehman, W/o Shri Sanbar Khan Aged About 39 Years R/o C/o Raja Silai Centre, Near Masjid Padampur Road, Saraipali, District Mahasamund Chhattisgarh. ... Appellant

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versus

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1 - Aaman Isha (Deleted) Through Lrs As Per Honble Court Order Dated 04/11/2025

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1.1 - Nusrat Khan Wd/o Late Hasa Ullah Aged About 50 Years R/o Super Photo Studio, Infront Of Masjid Padampur Road, Ward No. 11, Saraipali, District Mahsamund Chhattisgarh.

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1.2 - Naushin Khan D/o Hasan Ullah Aged About 29 Years R/o Super Photo Studio, Infront Of Masjid Padampur Road, Ward No. 11, Saraipali, District Mahsamund Chhattisgarh.

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1.3 - Jubed Khan S/o Hasan Ullah Aged About 24 Years R/o Super Photo Studio, Infront Of Masjid Padampur Road, Ward No. 11, Saraipali, District Mahsamund Chhattisgarh.

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1.4 - Rafique S/o Aaman Isha Aged About 52 Years R/o Super Photo Studio, Infront Of Masjid Padampur Road, Ward No. 11, Saraipali, District Mahsamund Chhattisgarh.

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1.5 - Wasim S/o Aaman Isha Aged About 50 Years R/o Super Photo Studio, Infront Of Masjid Padampur Road, Ward No. 11, Saraipali, District Mahsamund Chhattisgarh.

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1.6 - Naseem S/o Aaman Isha Aged About 48 Years R/o Super Photo Studio, Infront Of Masjid Padampur Road, Ward No. 11, Saraipali, District Mahsamund Chhattisgarh.

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1.7 - Shaina Begum W/o Mohd. Yasin Khan (Tailor), D/o Aaman Isha Aged About 51 Years R/o Beedpara, Hospital Road, Sarangarh, District Raigarh Chhattisgarh.

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2 - Shafura Begum( Died And Deleted) As Per Court Order Dated 12-11-2025 2.1 - (A) Tayyabtulla S/o Rahamtulla Isha Aged About 42 Years R/o Saraipali, Distt. Mahasamund.

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2.2 - (B) Jubaida Khatun (Deleted) Through Lrs As Per Honble Court Order Dated 04/11/2025.

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2.2.1 - Wahid S/o Jubaida, Aged About 44 Years C/o Wahid Cycle Store, In Front Of Masjid, Saraipali, Distt. - Mahasamund Chhattisgarh.

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2.2.2 - Malika Khan W/o Riyam Khan , D/o Jubaida Aged About 50 Years R/o Discwala Dhal Gali, Luchki Para, Durg, Distt. - Durg Chhattisgarh

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2.3 - (C) Shahida Khatun (Died And Deleted) As Per Court Order Dated 12-11-2025.

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2.4 - (D) Nasima Khatun S/o Rahamtulla Isha Aged About 21 Years R/o Saraipali, Distt. Mahasamund

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2.4.1 - Nurjahan Khatun S/o Rahamtulla Isha Aged About 38 Years R/o Near Ram - Talkies Mahasamund, District Mahasamund

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2.4.2 - Kausar Khatun (Died And Deleted) As Per Court Order Dated 12-11-2025

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3 - Ayesha Begum (Deleted) Throughr Lrs As Per Honble Court Order Dated 04/11/2025

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3.1 - Abdul Majid S/o Late Haie Khan Aged About 75 Years R/o Kifayat Manjil, Nagar Nigam Hospital, Shyam Nagar, Telibandha, Raipur, District Raipur Chhattisgarh

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3.2 - Habibullah S/o Late Haie Khan Aged About 50 Years R/o Duplex 50, Babjee Park, Ring Road No. 02, Bilaspur, District Bilaspur Chhattisgarh

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3.3 - Shehnaz W/o Mohd. Sajid Khan, D/o Late Ayesha Aged About 51 Years R/o Islam Mohalla, Ward No. 06, Saraipali, District Mahasamund Chhattisgarh

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4 - Khatija Begum (Deleted) Through Lrs As Per Honble Court Order Dated 04/11/2025

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4.1 - Mohd. Aslam S/o Late Abdul Rahman Aged About 48 Years R/o Ward No. 11 Bazarpara, Saraipali Saraipali, District Mahasamund Chhattisgarh

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4.2 - Azra W/o Mohd. Ameer Raza Aged About 51 Years R/o Indira Gandhi Chowk, Baramkela, District Raigarh, Chhattisgarh

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4.3 - Shabana D/o Late Khatija Begum Aged About 47 Years R/o Infront Of Masjid, Padampur Road, Saraipali, District Mahasamund Chhattisgarh

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5 - Smt. Godawari Bai (Died And Deleted) As Per Court Order Dated 12-11-2025

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5.1 - (A) Mangelal (Deleted) Through Lrs As Per Honble Court Order Dated 04/11/2025

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5.1.1 - Palak Agrawal W/o Mangelal Agrawal Aged About 35 Years R/o C/o Omprakash Vedprakash Kirana Store, Infront Of Masjid, Ward No. 11, Saraipali, District Mahasamund Chhattisgarh 5.1.2 - Himanshu Agrawal S/o Mangelal Agrawal Aged About 20 Years R/o C/o Omprakash Vedprakash Kirana Store, Infront Of Masjid, Ward No. 11, Saraipali, District Mahasamund Chhattisgarh 5.2 - (B) Pawan Kumar S/o Omprakash Agrawal Aged About 28 Years R/o Saraipali, - District Mahasamund Chhattisgarh 5.3 - (C) Smt. Sakun D/o Omprakash Agrawal Aged About 35 Years R/o Saraipali, - District Mahasamund Chhattisgarh

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6 - Narayan Bhai Ji S/o Manikchandra Aged About 35 Years R/o Saraipali, District - Mahasamund Chhattisgarh

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7 - Satyanarayan S/o Bholaram Agrawal Aged About 35 Years R/o Saraipali, District - Mahasamund Chhattisgarh

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8 - Surjeet Singh (Deleted) Through Lrs As Per Honble Court Order Dated 04/11/2025

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8.1 - Smt. Vimla Upveja W/o Late Surjeet Singh Aged About 70 Years R/o Fouhara Chowk, Ward No. 11, Bazar Road, Saraipali, District - Mahasamund Chhattisgarh

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8.2 - Jitendra Upveja S/o Late Surjeet Singh Aged About 52 Years R/o Fouhara Chowk, Ward No. 11, Bazar Road, Saraipali, District - Mahasamund Chhattisgarh

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8.3 - Smt. Radhika Upveja D/o Late Surjeet Singh Aged About 50 Years R/o Fouhara Chowk, Ward No. 11, Bazar Road, Saraipali, District - Mahasamund Chhattisgarh

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8.4 - Rajendra Upveja S/o Late Surjeet Singh Aged About 48 Years R/o Fouhara Chowk, Ward No. 11, Bazar Road, Saraipali, District - Mahasamund Chhattisgarh

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9 - Gurubachan Ahuja S/o Chunnilal Aged About 27 Years R/o Saraipali, District - Mahasamund Chhattisgarh

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10 - Ismile Abdulla (Deleted) Through Lrs As Per Honble Court Order Dated 04/11/2025

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10.1 - Abdul Wahid S/o Late Ismile Abdulla Aged About 50 Years R/o Near Masjid, Ward No. 11, Guru Nanak Chowk, Saraipali, District - Mahasamund Chhattisgarh

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11 - State Of Chhattisgarh Through Collector, Mahasamund, Distt. Mahasamund Chhattisgarh. ... Respondent(s)

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For Appellant	: Mr. Prafull N. Bharat, Senior Advocate assisted byMr. Akash Pandey,Advocate
For Respondent No.1(d) 1(e)	: Mr. Sanjay Agrawal, Advocate along with
5(B) & 5 (C)	Ms. Shruti Shrivastava, Advocate
For State	: Ms. Soumya Sharma, Panel Lawyer
Date of hearing	: 08.01.2026
Date of Judgment	: 13.02.2026

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Hon’ble Shri Justice Rakesh Mohan Pandey

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C A V Judgment

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1. This First Appeal has been filed under Section 96 of Civil Procedure Code, 1908 assailing the validity and proprietary of the judgment & decree passed by the learned IInd Additional District Judge, Mahasamund, in Civil Suit No. 4-A of 2002, dated 6th March 2003, whereby the suit filed by the original plaintiff-Rabiya Begum was dismissed.

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2. The original plaintiff namely, Rabiya Begum filed a suit for partition and possession, inter alia on the ground that she had a right to 14.28 % share in the suit house situated over Survey Nos. 771/1 and 781/1. The original plaintiff and defendant Nos. 1 to 4 are real brothers and sisters.

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3. The family tree of the original plaintiff is produced hereinbelow:-

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Isha Kasam (Died – 1963) │ Married to Nasiban B (Wife) (Died – 1989) │ ├── Elder Son: Rahmat Ulla Isha │ (Defendant No. 2)

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│ ├── Younger Son: Aaman Isha │ (Defendant No. 1) │ ├── Elder Daughter: Ayesha Begum

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│ (Defendant No. 3) │

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├── Daughter: Rabiya Begum

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│ (Plaintiff) │

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└── Younger Daughter: Khanija Begum (Defendant No. 4)

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4. The original plaintiff further pleaded that original defendants No.5 to 10 are tenants. The property was originally recorded in the name of Isha Kasam, the father of the plaintiff and the defendant Nos. 1 to 4. It is also pleaded that the original plaintiff was residing in the suit property but defendant No.1 to 4 refused partition.

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5. The plaintiff described the share of each party. Isha Kasam died in the year 1963.

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6. The defendants No.1 & 2 filed written statement and denied the plaint averments. They pleaded that the suit property was not exclusive property of Isha Kasam; rather, it was purchased by Aaman Isha and Ramatulla Isa. It is further pleaded that the suit filed by the plaintiff is barred by limitation.

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7. Defendant No. 5 and his LRs filed separate written statements wherein they stated that the suit property was purchased by them on 28.01.1968 from defendant Nos. 1 and 2 and their mother Nasiban Bee by way of registered sale deed and since they are in possession. They also pleaded that the plaintiff never remained in possession of the suit property and the suit is barred by limitation.

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8. The learned Trial Court framed issues and held that the suit property is not the property of late Isha Kasam; the plaintiff is not entitled to 14.28% share of the suit property according to the Muslim Succession Act. The plaintiff had not perfected her right by law of adverse possession. It was further held that the defendants could not prove that the suit was barred by limitation. Finally, the suit was dismissed.

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9. After dismissal of the suit, late Rabiya Begum preferred instant first appeal under Section 96 of CPC. During pendency of the appeal, she died issueless.

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10. One Gulnar Tabassum moved an application under Order 22 Rule 3 CPC for substitution of legal representatives of late Rabiya Begum. The application was moved on the ground that after death of Rabiya Begum, her entire estate had been bequeathed in favour of Gulnar Tabassum by way of a will, and she, being the legal representative had right to pursue the matter.

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11. The application was allowed and directions were issued to the learned Trial Court to determine the question of legal representatives in terms of Order 22 Rule 5 CPC. The learned Trial Court submitted its report on 23.01.2020, wherein it is held that Gulnar Tabassum had a right to continue with the appeal and accordingly, her application was allowed.

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12. Mr. Prafull N. Bharat, learned Senior Advocate would submit that Gulnar Tabassum happens to be daughter of sister of plaintiff and who executed a will deed in favour of Gulnar Tabassum on 18.11.2008. He would submit that the learned Trial Court concluded that Exhibit P-1 is a letter of allotment in favour of Isha Kasam by Zamindar Lal Bahadur Singh for a period of 30 years starting from 1933. The learned Trial Court held that since it was only an allotment, therefore, no title was transferred in favour of Isha Kasam under the Transfer of Property Act, and it was held that Isha Kasam was not an owner of the suit property.

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13. Mr. Bharat, learned Senior Advocate submitted that the conclusion arrived at by learned Trial Court was wholly erroneous. He would submit that the Trial Court failed to consider Sections 5 & 7 of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. He would argue that Isha Kasam was holding the land by virtue of allotment made by the competent person, i.e., Zamindar Lal Bahadur Singh. On 22.01.1951, the Act of 1950 received assent of the President of India and was published in the Gazette on 26.01.1951. He would submit that the Act of 1950 was promulgated to provide for acquisition of rights of proprietors in estates, mahals, alienated villages and alienated lands in M.P. and to make provisions for other matters connected therewith. He would submit that the Act, 1950 came in existence on 22.01.1951. He would submit that by virtue of Sections 5 of the Act of 1950, the land held by Isha Kasam was to be settled in his name.

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14. He would further submit that the M.P. Land Revenue Code, 1954, received assent of the President on 05.02.1955 and was published in the Gazette on 12.05.1955. He would refer Section 146 of the Act, 1954, which defines “Bhumiswami” - Every person, who at the coming into force of this Code belongs to any of the following classes, shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely:-

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a. every person in respect of land held by him as a malikmarbuza or a plot proprietor in the [Mahakoshal region].

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b. every person in respect of land lawfully held by him as house site in Abadi in the [Mahakoshal Region].

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c. every person in respect of land held by him as a raiyat malik in the [Mahakoshal Region excluding merged territories].

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d. every person in respect of land held by him as an absolute occupancy tenant in the [Mahakoshal Region excluding merged territories].

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15. He would argue that Isha Kasam was having a lease issued by the Zamindar, and after enactment of the Code, 1954 he became Bhumiswami. He would submit that the learned Trial Court wrongly decide the issue No.1. He would further submit that the Will deed was executed in favour of Gulnar Tabassum. He has placed relience on the matter of Suresh Kumar Bansal v. Krishna Bansal & Anr., (2010) 1 SCC 162 , wherein it is held that for the purpose of avoiding multiplicity of proceedings and for adjudication of related disputes in the same proceedings, parties cannot be driven to different courts or to institute different proceedings touching on different facets of the same major issue. He would submit it is a case where application for substitution on the basis of the Will alleged to have been executed by the deceased plaintiff has been allowed. He would contend that the dismissal of the plaint would affect the right of Gulnar Tabassum which she has acquired by virtue of Will deed based on share of late Rabiya Begum in the suit property.

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16. On the other hand, Mr. Sanjay Agrawal, learned counsel for the respondent(s)1(d) 1(e) 5(B) & 5 (C) would submit that the Will deed was placed on record along with an application under Order 22 Rule 3 of the CPC before this Court. He would submit that Gulnar Tabassum was not a party and Will was not subject matter before the learned Trial Court and its genuineness can be decided only in a separate suit. He would further submit that since Rabiya Begum had no right over the suit property, appellant herein-Gulnar Tabassum could not claim any right. He would further submit that the plaintiff could not established the fact that her father had right over the suit property. He has also placed reliance on the matter of Suresh Kumar Bansal (supra) ,

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wherein it is held that natural heirs and legal representatives of the deceased plaintiff would only be entitled to get possession on the basis of inheritance of the suit property on the death of the original plaintiff.

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17. Ms. Sharma, learned Panel Lawyer would support the impugned judgment and decree.

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18. I have heard learned counsel for the parties at length and perused the record.

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19. Sections 5 and 7 of the Act of 1950 are reproduced hereinbelow:-

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“5. Certain properties to continue in possession of proprietor or other person.- Subject to the provisions in [* * *] [The words 'Sections 47 and 63' were omitted by M.P. Act 2 of 1953, action 238, Schedule III.]-

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(a) all open enclosures used for a agricultural or domestic purposes and in continuous possession for twelve years immediately before 1948-49; all open house-sites purchased for consideration; all buildings; places of worship; wells situated in and trees standing on lands included in such enclosures or house-sites or land appertaining to such buildings or places of ownership; within the limits of a village-site belonging to or held by the outgoing proprietor or any other person, shall continue to belong to or be held by such proprietor or other person, as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine;

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(b) all private wells and buildings on occupied land belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person;

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(c)all trees standing on land comprised in a home-farm or homestead and belonging; to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person;

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(d)all trees standing on occupied land other than land comprised in home-farm or homestead and belonging to or held by a person other than the outgoing

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proprietor shall continue to belong to or be held by such person;

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(e)all tanks situate on occupied land and belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person;

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(f)all tanks, belonging to or held by the outgoing proprietor which are situate on land other than village site or occupied land and in which no person other than such proprietor has any right of irrigation, shall belong to or be held by such proprietor;

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(g)all tanks and embankments (bandhans) belonging to or held by the outgoing proprietor or any other person which are situate on land other than village site or occupied land and the beds of which are under cultivation of such proprietor or such other person shall belong to or be held by such proprietor or such other person and the land under such tanks and embankments shall be settled with such proprietor or such other person on such terms and conditions as the State Government may determine;

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(h)all groves wherever situate and recorded in village papers in the name of the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or such other person and the land under such groves shall be settled with such proprietor or such other person by the State Government on such terms and conditions as it may determine.

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[Collector] [Substituted by M.P.A.L. (Second) Order, 1957.] to take possession of property vesting in the State.

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On the date of vesting, the Collector shall take charge of all lands, other than occupied lands and homestead and of all interests vesting in the State under Section 3. ”

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20. Bare reading of these provisions would make it clear that if the open land used for agriculture or domestic purposes in continuous possession for 12 years before 1948-49 belonging to outgoing proprietor or any other person shall continue to belong to such person.

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21. The question for determination would be as to “whether the learned Trial Court rightly held that Isha Kasam had no right over the suit property situated over Survey Nos. 771/1 and 781/1” ?

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22. Perusal of Ex.P/1 would show that lease of Survey No. 237, admeasuring 1375 sq. ft., was granted by Thakur Lal Bahadur Singh in favour of Isha, son of Kasam, on 11.02.1934. The boundaries of the said land, as specified in the document, are as under:-

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North

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23. Ex. P/2 would show that Sande Khan sold land to Isha Kasam but survey Number is not mentioned in the said document. Area of the plot & boundaries are also not specified. Rs.50 was deposited by Isha Kasam vide Ex.P/2. As this document is not a registered document and there is no description of the property, it cannot be treated as document of transfer of property.

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24. Ex.P/3 & Ex.P/4 are applications moved before the Tehsildar seeking permission to construct a house over part of survey No.779. Ex.P/4 was moved by Isha on 10.01.1962.

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25. Ex.P/5 is a map which depicts that Rabiya Begum was residing in map house but plot number or survey number is not mentioned. Survey No.777 and 781/1 are

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different from map house. It is also not stated that Rabiya Begum & her father were in possession of both survey Numbers.

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26. According to Ex.P/6, survey No.777 & 781/1 are Abadi land.

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27. It is also not proved that the father of the plaintiff raised construction over survey No.777 & 781/1 and original plaintiff was residing over any part of the house situated at survey No.777 & 781/1.

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28. The witnesses examined by the plaintiff failed to establish the fact that the survey No.237 and 777 as well as 781/1 are one and same and house was constructed over survey No.777 & 781/1.

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29. The original plaintiff PW/1-Rabiya Begum in her evidence stated that she was staying in the house of her father. She had no means of income. Aisha Begum and Fatiza Begum are her sisters. The original plaintiff Rabiya Begum in para-23 of cross-examination admitted the fact that suit property was purchased from one Sande Khan and stamp paper (Ex.P4) was purchased from Zamindar Thakur Lal Bahadur Singh. She further stated that suit property was never purchased from Thakur Lal Bahadur Singh.

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30. Abdul Aziz (PW/2) stated that Rabiya Begum was residing in a house situated in front of his shop. In cross-examination he has stated the fact that he has no knowledge on whose name the suit property is recorded in the revenue record. This witness further admitted that he has no knowledge as to when the suit house was constructed and he never inspected revenue record or municipal record.

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31. Plaintiff witness No.3- Rajkumar Awde, Patwari of Patwari Halka No.9, Saraypali, Tehsil Saraypali, has proved contents of map Ex.P/5 and revenue record of year 1999-2000. This witness has not stated that changed Survey number of 237 are Survey No. 771/1 & 781/1. He has further stated that the map Exhibit P-5 was not prepared in accordance

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with Land Revenue Code and it did not describe number of rooms or verandah.

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32. Abdum Hamid (PW/4) in examination-in-chief stated that the suit house was constructed by late Isha Kasam and it was not partitioned between its successors.

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33. Rafiq Ullah Khan (DW/1) stated that original plaintiff Rabiya Begum was residing in his house. He further stated in cross-examination that Rabiya Begum had no house of her own.

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34. Actually, the document (Ex.P/1) is not a sale deed rather it is in nature of lease, whereby lease of the property was granted for the period of 30 years to late Isha Kasam from 1933 to 1963.

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35. The original plaintiff failed to establish that the suit property was ever settled in the name of Isha Kasam and the suit property was ever recorded in the name of Thakur Lal Bahadur Singh & he had right to grant lease in favour of late Isha Kasam for the period of 30 years; further, the boundaries mentioned in the plaint and Ex.P/1 are also different, therefore, the plaintiff would not get any benefit by virtue of Section 5 & 7 of the Act of 1950. The suit property was never settled in the name of late Isha Kasam and there is no document in this regard.

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36. To get benefit of Section 146 of the Act, 1954, the plaintiff was required to prove that at the commencement of the Code Isha Kasam was lawfully in possession of the suit property.

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37. In the matter of Suresh Kumar Bansal (supra) , the application moved by a person on whose favour a Will deed was permitted to continue the suit by the Hon’ble Supreme Court allowed. In the present case, Gulnar Tabassum has been substituted as plaintiff on the basis of Will deed executed by Rabiya Begum in her favour on 18.11.2008 but the original plaintiff-Rabiya Begum failed to prove the fact the suit property was ever leased out in accordance with law in favour of late Isha Kasam. It is also

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held in the matter of Suresh Kumar Bansal (supra) , natural heirs and legal representatives of the deceased plaintiff would only be entitled to get possession on the basis of inheritance of the suit property on the death of the original plaintiff, therefore also, Gulnar Tabassum has no right to claim partition on the basis of the Will deed. The Will deed was never subject matter of suit.

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38. Taking into consideration the above discussed facts, the question for determination is answered against the appellant herein. The appeal preferred by the appellant/plaintiff is hereby dismissed. A decree be drawn accordingly.

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Sd/-

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Rakesh Mohan Pandey JUDGE

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Nadim

Gular Tabasum v. Aaman Isha (Deleted) through Lrs

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Gular Tabasum v. Aaman Isha (Deleted) through Lrs

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