Disposed

Mahmood v. Shahbaz

Punjab & Haryana HC26 Nov 2014RSA/2436/1986

Case brief

AI extract

What is this about?

The High Court disposed of the second appeal arising from a suit for declaration and injunction regarding property possession. Noting material discrepancies in land area and share calculations due to untranslated revenue records and custodian auction details, the Court remitted the matter to the trial Court for a fresh trial with expedited timelines.

What did the court decide?

The appeal is disposed of; matter remitted to the trial Court for a fresh trial to be completed within one year.

Mahmood Vs Shahbaz — Partition | Punjab & Haryana HC (2014)

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Date of decision: 26^th November, 2014

Mehmooda

� Appellant

Versus

Shabaz and others

� Respondents

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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Whether to be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. Harsh Aggarwal, Advocate for the appellant.

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Mr. S.K. Bawa, Advocate for respondent No.3.

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In compliance of the orders dated 20.11.1987 passed by

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the Hon’ble Supreme Court of India in Civil Appeal No.6428 of 1987, this regular second appeal by unsuccessful defendant has come up for adjudication.

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Heard Mr. Harsh Aggarwal, Advocate for the appellant, Mr.S.K. Bawa, Advocate for respondent No.3 and perused the essential records of this case.

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RATTAN PAL SINGH 2015.03.04 16:34 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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Hon’ble the Apex Court, finding it impossible for the Court to decide the dispute as there was disparity in the total area of the land whether it was 34 Kanals 12 Marlas or different from it, had necessitated for this Court to have a second look at it.

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Before venturing into these essentials, it is desirable to highlight what has led to this lis which has meandered through this legal maze for 30 years when initially the suit was filed on 02.09.1985. The facts in brief are that a suit for declaration and permanent injunction was preferred by the plaintiffs Shahaz (also referred to as Shahbas) son of Firoze Khan and others on behalf of all the co> sharers against the appellant Mehmooda (also referred to as Mohammada) son of Nihal Khan alleging that they were the joint owners to the extent of 1/2 share of the suit property situated in village Nawana, Tehsil Ferozepur Jhirka, District Gurgaon and that due to machination the defendant has been wrongly depicted to be the sole owner of this agricultural land consisting of 16 fields measuring 53 Kanals 4 Marlas as per the jamabandi pertaining to the year 1976>77. The same has been emphatically denied on behalf of the defendant/appellant who has set up the plea that by virtue of sale by custodian in the year 1963 which was confirmed vide orders of Assistant Collector dated 27.07.1983 they were owners and in possession of the entire property in question. However, during the course of arguments, it has been highlighted that by virtue of orders dated 22.05.1964 Ex.P3 this sale by custodian was slashed by 1/2,

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RATTAN PAL SINGH 2015.03.04 16:34 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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though learned trial Court through judgment and decree dated 02.09.1985 decreed the suit holding the plaintiffs and defendant being owners in possession of 1/2 share each and on appeal by Mohammada the learned Additional District Judge, Gurgaon through impugned judgment and decree dated 13.08.1986 upheld these findings and that is how the parties have come up before this Court.

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On minute perusal of the revenue records, which are from the year 1935>36 till the year 1966>67 after seeking assistance of the official translator of this Court it becomes clear that the learned trial Court has erred in disposing off the matter taking area to be 34 Kanals 12 Marlas when as per the jamabandi for the year 1966>67 it is reflected to be 53 Kanals 4 Marlas. It has never taken into consideration the share of Mehmood Khan son of Nawaz Khan, who has since migrated to Pakistan and whose share in the property, which is apparent to be 50% of 34 Kanals 12 Malras of land had become evacuee property and was auctioned by the custodian, had its own repercussions on the overall findings of the courts besides the fact that the possession of defendant as a consequence of this auction by the custodian as per Ex.D10 was never handed over and only symbolic possession was made and that in the light of the recent Hon’ble Apex Court view in #�$%&'��()��+�,'-�.&'�!�/�0��'1�� ()�2��,'1-/ ��$0$3��441(3��5��66�"�718$717��%� ��6��6��+ , which holds that there is no time limit for redemption of mortgage and which would cast its own shadow on the outcome of the

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RATTAN PAL SINGH 2015.03.04 16:34 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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suit, and therefore, how 1/2 share of 34 Kanals 12 Marlas of land would revert to the mortgagees has also to be considered afresh. Even the details of the property, subject matter of the dispute, given in the plaint which are 16 fields measuring 53 Kanals 4 Marlas do not tally with the revenue documents proved on the record and thus, is further creating hindrance in the judicious disposal of the matter.

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Thus, it has become imperative in the light of this vagueness and having regard to the property rights of the parties, it would subserve the ends of justice if the matter is transmitted to the learned trial Court to hold fresh trial into the suit and while doing so ensure that the correct translated version of Urdu is proved on the record which would go a long way in assisting the courts for better appreciation of the evidence and the rights of the parties. Having regard to the matter being prolonged since long, the trial Court is directed to expedite the same and to preferably dispose off the same within a period of one year from the date parties put in appearance before it.

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With these observations, the appeal stands disposed off in

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those terms.

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RATTAN PAL SINGH 2015.03.04 16:34 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

Mahmood v. Shahbaz

Case brief

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What did the court decide?

Mahmood v. Shahbaz

Case brief

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