The plaintiff in O.S.No.24/2016 is before this court

under Section 96 of the Code of Civil Procedure challenging

the judgment and decree dated 28.02.2017 as the suit of

the plaintiff for the relief of declaration and partition is

dismissed. The plaintiff has sought a declaration that the

sale-deed executed on 11.11.1998 registered at Document

No.3234/98-99 before the Sub-Registrar, Bhalki is null and

void. The purchasers under the said sale-deed are

defendants No.5 and 6.

2.

The genealogy of the parties is as under :-

Mirza Zulullah Baig S/o Mirza Khairulla Baig

(Died on 11.11.1996)

Masoom Bee @ Rasheeda Bee

(Died on 12.08.2008)

Akhila Bee

Sameeda Bee

(died on 28.02.2016)

Zakiya Bee

Ahmed Bee

4

3.

According to the plaintiff, Mirza Zululla Baig the

propositus died in the year 1996 leaving behind his wife

Masoom Bee, who died in the year 2008. According to the

plaintiff, the above named Mirza Zululla Baig and Masoom

Bee had three sisters namely Akhila – the defendant No.1,

Mahemooda Bee– the defendant No.2 and the mother of

the plaintiff – defendant No.3, Sameeda Bee. It is stated

that Sameeda Bee died in the year 2016.

4.

According to the plaintiff, her grand father

Mirza Zululla Baig and grand mother Mahemooda Bee had

no male issues. It is contended that after their demise

there is no partition in the family.

5.

The plaintiff contended that the defendant

No.4 claiming to be the son of deceased Mirza Zululla Baig

and Masoom Bee executed the sale-deed in favour of

defendant Nos.5 and 6 under registered sale-deed dated

11.11.1998 in respect of the suit schedule property. The

plaintiff

contends

that

the

defendant

No.4

has

impersonated himself as the son of the deceased Mirza

5

Zululla Baig though he is not the son. According to the

plaintiff, the sale-deed does not convey any title in favour

of defendants No.5 and 6 and claimed partition of her

share in the suit schedule properties.

6.

Defendants though served with the notice

remained exparte. The plaintiff led evidence through her

Power of Attorney Holder and also examined the PW.2 and

15 documents were marked on behalf of the plaintiff.

Obviously,

there

was no

cross-examination

as

the

defendants remained exparte. Though there was no

contest to the claim made by the plaintiff, the suit is

dismissed on the ground that the requirement of Order VI

Rule 4 of Code of Civil Procedure is not met in the

pleadings. The trial court has held that in the absence of

specific plea relating to fraud and impersonation, the suit

cannot be decreed. Since the sale-deed was executed on

11.11.1998 and the mother of the plaintiff died in the year

2016 and also on the ground that remaining two daughters

of late Mirza Zululla Baig namely the defendants No.1 and

6

2 have not challenged the sale transaction, the suit is

dismissed.

7.

Aggrieved by the dismissal of the suit, the

plaintiff is in appeal.

Even before this court the

defendants/respondents though served with the notice

have remained absent.

8.

Heard Sri Sachin M.Mahajan appearing for the

appellant.

9.

Following point arises for considraiton is :-

"Whether

the

tiral

court

is

justified

in

dismissing the suit for want of partiuclars as

contemplated under Order VI Rule 4 of Code of Civil

Procedure ?"

10.

Learned counsel for the appellant has also

produced the memo along with documents viz. the copy of

the appeal memo before the Assistant Commissioner filed

by the grand mother of the plaintiff Masoom Bee, certified

copy of the written submission before the Assistant

7

Commissioner as well as the certified copy of the order

passed by the Assistant Commissioner on 06.05.1999 in

Appeal No.17/1998-99. From the said documents, it is

apparent that the appeal filed by the grand-mother of the

plaintiff/appellant is allowed and the names of the grand

mother of the appellant Masoom Bee and her three

daughters Akhila, Mahemooda Bee and Sameeda Bee are

ordered to be entered in the property records pertaining to

Sy.No.200/E measuring 04 acres 30 guntas in Bhalki

Village.