The disputed house was treated as joint family property, entitling the plaintiff and the defendant to equal 1/3 share each, as per Mahomedan Law.

JUDGMENT :

DWARKA DHISH BANSAL, J.

1. This second appeal is preferred by the plaintiff Mohd. Shareef Khan (since died, now by LRs Mohd. Habib and others) challenging the judgment and decree dated 02.09.1998 passed by District Judge, Raisen in civil appeal no. 8-A/96 reversing the judgment and decree dated 18.04.1995 passed by Civil Judge Class I, Bareli, District Raisen, in Civil Suit no. 71-A/94.

2. In short, the facts are that, original plaintiff Mohd. Shareef Khan instituted a suit for permanent injunction claiming himself to be exclusive owner of the disputed house and prayed that the defendant be restrained from making any interference in his possession over the disputed house which he received after death of Yakoob Khan as shown in the plaint map from item no. 4.

3. The defendant Mohd. Hanif appeared and filed written statement claiming himself to be exclusive owner of the house in question with the contentions that in fact the house situated over an area 68’x68’ is self acquired property of the defendant on the basis of registered sale deed dated 13.05.1965 (Ex.D/1). In para 10 of written statement, he contended that as the plaintiff has already completed construction of disputed house, therefore, the plaintiff has no cause of action. Along with the written statement, counter claim was also filed by the defendant to the effect that the plaintiff by raising construction has taken possession over disputed house shown in the map from mark “A”, therefore, decree of possession be granted.

4. On the basis of pleadings of the parties, learned trial Court framed as many as 9 issues and recorded evidence led by the parties and vide its judgment and decree dated 18.04.1995 held that the house/property including disputed house (total area 68’x68’) was purchased by the defendant vide registered sale deed dated 13.05.1965 (Ex.D/1) from Syed Mushtak Ali and held that no partition was effected in the family of the plaintiff and defendant and all the four brothers namely Mohd. Shareef, Mohd. Hanif, Mohd. Rafique and Mohd. Yakoob did not receive equal share in the house area 68’x68’ and it was also held that the disputed house did not come in the share of plaintiff after death of brother Yakoob. However, it was held that the plaintiff and defendant both jointly sold one part of the house to Vahid Khan vide registered sale deed dated 09.05.1977 (Ex.D/4) and also held that the plaintiff was residing in the disputed house with the permission of defendant and the defendant is exclusive owner of the house in question and is entitled for recovery of possession.

5. Upon appeal filed by the plaintiff, learned first appellate Court vide judgment and decree dated 02.09.1998 dismissed the same and affirmed the judgment and decree of trial Court.

6. This Court vide order dated 15.02.1999 admitted the second appeal on the following substantial questions of law:

“(i) Whether the findings of the Courts below that the defendant/respondent No. 1 was the sole owner of the suit property, is legally justified.

(ii) Whether the counter claim of the defendant/respondent No. 1 impleading the respondent/defendant Nos.2 to 6 as defendants therein though the suit was not filed as against them, was rightly entertained and allowed by the Courts below?”

7. Learned Senior counsel for the appellants submits that in presence of sale deeds (Ex.D/3 and D/4) and the recitals made therein, it cannot be said that the disputed house belongs to the defendant exclusively, but the oral evidence of the witnesses including the documentary evidence available on record shows that the disputed house came in possession of brother Mohd. Yakoob, in which the plaintiff is residing, which after death of Mohd. Yakoob was given to the plaintiff in his share. He further submits that in the Civil Suit, only the plaintiff Mohd. Shareef Khan and defendant Mohd. Hanif were party, therefore, counter claim could not have been filed by Mohd. Hanif including other persons namely Mohd. Habib, Mohd. Raees, Mo