Tuesday 21 January 2014

Res judicata- earlier suit not decided on merit as suit was disposed off as abated



Admittedly 
earlier   Civil   Suit   no.518   of   1988   was   not   decided   on   merits.   No 
evidence was recorded as it was disposed of as abated.  Defendant no.1 
and  2 as  heirs   of   Zulekhabi were  not  permitted  to  come  on  record. 
Hence   it   is   not   just   and   proper   to   say   that   present   suit   is   not 
maintainable as barred by the principle of Res Judicata when earlier 
suit was not decided on merits  according to law. In the ruling in Ram 
Kalap   Vs.   Banshi   Dhar   and   others   AIR   1958   All.   573  in   Para   3 
Division Bench of Allahabad High Court observed thus :
“Order   XXII,   Rule   5   of   the   Code   of   Civil 
Procedure   provides   only   a   summary   procedure 
for   appointing   a   person   to   be   the   legal 

representative   of   the   deceased   party   for   the 
purpose   of   prosecuting   the   suit   and   the   order 
appointing   the   legal   representative   does   not 
operate   as   a   final   determination   of   the 
representative character of the person appointed, 
that is to say, it does not operate as res judicata. 

CIVIL APPELLATE JURISDICTION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

SAJID ISMAIL 
Sole proprietor of M/s Allied Constructions
V/s.

SAIRABI ABDUL GAFFAR SHAIKH

                        DATE ON WHICH 
   JUDGMENT IS PRONOUNCED  

: 25th OCTOBER, 2013.

CORAM      :  A. P
. BHANGALE, J.
Citation; 2014 (1) MH LJ 182

against the Judgment and order dated 21­08­2003 passed by Jt. C.J.S.D. 
Pune,   in Special Civil Suit No.2107 of 1997, decreed in favour of the 
original plaintiffs­respondents, declaring them as owners of 3⁄4th  share of 
the suit property i.e.  Land survey no. 61/9/1 admeasuring 14 gunthas, 
situated at Mauje Vanvadi, District Pune, and that agreements between 
the defendant nos.1 and 2 in favour of the defendant no.3 or in favour 
of the defendant no.4 dated 23.04.1994 and 04.09.1995 respectively are 
not binding on the plaintiffs and their undivided share. Defendant nos.1 
to 4 were restrained permanently from carrying out  any construction in 
the   suit   property   and   from   creating   any   third   party   interest   or 
encumbrance   on   the   three­fourth  share   of   the   plaintiffs  over   the   suit 
property.     While   the   defendant   nos.5   to   7   were   restrained   from 
sanctioning any plan for construction on the suit property without the 
consent of the plaintiff nos.1 and 2 in respect of their three­fourth share.

The facts stated are:­

Special Civil Suit No.2107 of 1997 was instituted by the 
original plaintiffs real sisters namely 1.Smt Sairabi Abdul Gaffar Sheikh 
and   2.Smt   Aisharbi   Fakhruddin   Sheikh.   They   had   real   brother 
Mohammed Ali. According to the plaintiffs their mother Jamalbi owned 
House property situated upon land Survey No.737 at Shukravar Peth, 

Pune, as also an house situated at land Survey No.736 at old Shukravar 
Peth,   Pune.   Mohammed   Ali   with   consent   of   the   plaintiffs   sold   old 
property   and  purchased   the   suit   property  land  Survey   No.61/9/1  at 
Wanwadi i.e. Suit property.  The suit property was purchased under the 
registered sale deed dated 09­06­1982 in the name of Mohammed Ali 
and his Wife Zulekhabi. On 23.03.1984 Mohd. Ali died issueless leaving 
behind his widow Zulekhabi.  Zulekhabi died issueless on 13.06.1990. 
The plaintiffs sisters had filed a Miscellaneous Application No.357 of 
1984 which was granted and numbered as Special Civil Suit No.518 of 
1984 for partition of the suit property. On 01.08.1984, the defendant 
Zulekhabi   was   restrained   from   transferring   the   suit   property   to   any 
third person. Thus in the said suit temporary injunction was granted. 
While suit against Zulekhabi being Suit No.518 of 1988 was pending, 
which was defended by Zulekhabi, she died on 13.06.1990.  According 

to the plaintiffs Zulekhabi had died issueless.  But then defendant no.1 
Mr.Rajasaheb   Appasaheb   Maldar   and   defendant   no.2   Mr.Raffique 
Mohammed  claimed share in the suit property  and had applied under 
Order   22   Rule   4   and   4A   of   Civil   Procedure   Code   to   bring   legal 
representatives of Zulekhabi and to join the suit as party defendants  on 
record. They had claimed that they became entitled to the suit property 
as   they   are   legatees   on   the   premise   that   the   suit   property   was 

bequeathed   to   them   under   the   alleged   last   Will   by   Zulekhabi.     On 
04.07.1992, Raffique also claimed that he is son of Mohd. Ali through 
another   wife   Mariambi   in   addition  to   the   plea   as   legatee   under   the 
alleged Will by Zulekha. For want of application under Order 22 Rule 1 
and 2 of Civil Procedure Code the Suit No.518 of 1988 was held as 
abated.   On   or   about   06.10.1995,   the   plaintiffs   had   informed   Pune 
Municipal Corporation (PMC) not to grant sanctioned plan of building 
upon suit property. The City Engineer had informed the plaintiffs that 
the PMC had temporarily stopped the process of sanctioning a building 
plan.   A Writ Petition No.609 of 1996 was filed in order to challenge 
the abatement of the suit. Writ Petition was dismissed on 17.03.2008. 
The   plaintiffs   filed   the   present   Suit   No.2107   of   1997   which   was 
decreed as stated above. According to the original plaintiffs they were 
joint owners with their late brother Mohammed Ali. According to the 

plaintiffs they along with their brother Mohammed Ali and Zulekhabi 
had   undivided   interest   of   3⁄4th  and   1/6th  +1/6th  in   the   suit   property. 
After   death   of   Mohammed   Ali,   Zulekhabi   as   a   legal   heir   under 
Mohommedan   law   was   entitled   to   1⁄4th  of   his   1/6th  share   and   the 
plaintiffs   are   entitled   to   remaining   3⁄4th  share   of   Mohammed   Ali   by 
inheritance. After Mohammed Ali died issueless, Zulekhabi was entitled 
to   the   1⁄4th  share   of   Mohammed   Ali’s   undivided   share   in   the   suit 

property and the plaintiffs were entitled to the remaining undivided 3⁄4th 
share by inheritance. The plaintiffs in addition to their 3⁄4th share were 
entitled to 3⁄4th of 1/6th of Mohammed Ali's share after his demise. Thus 
share   of   Zulekhabi   undivided   share   was   1/12th  and   she   was   not 
competent   to   bequeath   it   by   the   testamentary   disposition   under   the 
General Law, and 1/3rd of 1/12th according to Muslim Personal law as it 
permits   disposition   of   1/3rd  only   and   remaining   3⁄4th  devolves   as   per 
personal law of inheritance. Thus assuming the validity of the bequest, 
it would operate to the extent of 1/36th undivided share only.  Raffique 
claimed   as   adopted   son   of   Zulekhabi.   Concept   of   Adoption   is   not 
recognized under Muslim Law. Hence Raffique (defendant no.2) could 
not have been recognized as legal heir of Zulekhabi under Muslim Law 
of inheritance. According to the plaintiffs though Raffique was son of 
Sayed Abdul Gafoor Sheikh, he also claimed as Son of late Mohammed 

Ali   through   his   so   called   another   wife   Mariambi.   Defendant   no.2 
claimed   that   Mariambi   was   married   with   late   Mohammed   Ali   at 
Kolhapur on 08.06.1969 as per Muslim Personal law. 
3
According to the plaintiffs, Raffique (defendant no.2) have 
not even semblance of legal right. He cannot be recognized as legal heir 
under   Muslim   Personal   law   of   inheritance   of   Mohammed   Ali   or 

Zulekhabi as claimed by him. After death of Zulekhabi the defendants 
nos.1 and 2 moved an application to the Tahasildar, Pune, and without 
giving any notice to the plaintiffs got their names mutated in the V
.F. 
VII/XII extracts of the suit land on the basis of alleged Will of scribed in 
Kannada language without any authentic certificate of the translation 
in   official   Marathi   language.     Tahasildar,   Pune,   had   mechanically 
without holding any inquiry as contemplated under the Maharashtra 
Land Revenue Code, mutated names of defendant nos.2 and 3 in the 
7/12 extract. The Mutation was challenged by RTS Appeal no.104 of 
1994   before   the   Sub­Divisional   Officer,   who   by   the   Judgment   dated 
30.10.1995   dismissed   the   appeal.   Second   Appeal   no.253   of   1997   is 
pending   before   the   Collector,   Pune.   Meanwhile,   taking   undue 
advantage of mutation entry in their favour, the defendant nos.1 and 2 
entered in the Development agreement in respect of the suit property 

with defendant nos.3 and 4 on 24.03.1994 and 13.09.1995 respectively 
and a Building plan along with VII­XII extract of the suit property was 
submitted   to   the   Pune   Municipal   Corporation   through   Power   of 
attorney   holder   and   developer.   The   plaintiffs   claimed   that   the 
agreement between the defendant nos.2 and 3 on one hand and 3 and 
4 on the other hand regarding the development of the suit property is 
not binding on them. Under the pretext of the Development agreement 

the defendant nos.1 to 4 are trying to develop the suit property to the 
exclusion of the plaintiffs. The defendants have denied the suit claim 
and claimed interest in the suit property.  Defendant no.4 filed suit for 
specific performance being Regular Civil Suit No.1667 of 1995 against 
the plaintiffs and defendant no.3 for declaration and injunction seeking 
to restrain the plaintiffs and the defendant no.3 from entering in the 
suit property. Pune Municipal Corporation is not party to the suit but 
sanctioned   the   building   plan   submitted   by   the   defendant   no.4   after 
payment   of   huge   amount   of   Rs.1,71,000/­.   According   to   Pune 
Municipal Corporation it had verified the title of the suit property and 
took   indemnity   Bond   and   undertaking   from   the   M/s.Allied 
Constructions.  Further according to PMC it is dispute as to title to the 
suit property inter se between the defendant nos.1 to 4 and the original 
plaintiffs. As the defendant nos.1 to 4 have not complied with certain 

provisions   the   Building   plan   was   not   finally   approved.   Municipal 
Corporation   contended   that   it   will   follow   the   order   of   the   Court. 
Defendant   no.3   claimed   that   he   was   put   in   possession   of   the   suit 
property under the part performance of the contract and his suit for 
specific performance is pending against the defendant nos.1, 2 and 4, 
During   the   pendency   of   this   appeal,   the   parties   filed 


which was stayed under section 10 of the Civil Procedure Code.
consent terms.   By order of this Court dated 24.02.2011, compromise 
has   attained   finality.   My   Brother   Judge   Shri   A.S.Oka   recorded 
compromise   as   a   result   of   the   agreement   evidenced   by   the   consent 
terms (marked ‘x’ for identification) signed by Appellant Nos.2 and 3 as 
well as Respondent Nos.1­A, 1­B and 2.  Since the Appellant No.1 did 
not agree with the consent terms (and raised objection to acceptance of 
the consent terms) his objection was overruled and it was recorded that 
the consent terms will not bind the Appellant No.1. Thus we find that 
there was already a decree binding between Appellant Nos.2 and 3 and 
Respondent Nos.1A, 1­B and 2. The appeal thus remains pending as 
contest limited between the Appellant No.1 (now sole appellant) and 
rest of the parties. Appellant Nos.2 and 3 were thus transposed as party 
Respondents at the request of Appellant no.1. Order XXIII of CPC deals 

speaks about "compromise of suit" which reads as under:
with   "Withdrawal   and   Adjustment   of   Suits".   Rule   3   of   Order   XXIII 
"3. Compromise of suit.­ Where it is proved to the 
satisfaction   of   the   Court   that   a   suit   has   been 
adjusted   wholly   or   in   part   by   any   lawful 
agreement or compromise in writing and signed 
ig
by the  parties, or  where the  defendant  satisfies 
the plaintiff in respect of the whole or any part of 
the   subject   matter   of   the   suit,   the   Court   shall 
order such agreement, compromise or satisfaction 
to   be   recorded,   and   shall   pass   a   decree   in 
accordance   therewith  so  far   as   it   relates   to  the 
parties   to   the   suit,   whether   or   not   the   subject 
matter   of   the   agreement,   compromise   or 
satisfaction is the same as the subject matter of 
the suit : 
Provided that where it is alleged by one party and 
denied   by   the   other   that   an   adjustment   or 
satisfaction has been arrived at, the Court shall 
decide the question; but no adjournment shall be 

granted for the purpose of deciding the question, 
unless   the   Court,   for   reasons   to   be   recorded, 
thinks fit to grant such adjournment.
Explanation   ­­   An   agreement   or   compromise 
which   is   void   or   voidable   under   the   Indian 
Contract   Act,   1872   (9   of   1872),   shall   not   be 
ig
rule."
deemed to be lawful within the meaning of this 
It is submitted on behalf of the respondents that in view of the consent 
terms   recorded   'X'   for   identification   as   above,   nothing   really   would 
survive in this appeal now continued by the builder and developer who 
merely   intended   to   gain   pecuniary   advantage   out   of   the   pending 
dispute between the co­sharers according to Muslim Personal law who 
consented to bury their dispute during pendency of the appeal by a 
compromise   recorded   by   this   Court.   The   Decree   by   compromise   or 
consent terms is not challenged by the appellant as prescribed by law 
and   therefore   in   my   opinion   shall   bind   him   as   well   because   he   is 
seeking   to   claim   under   the   consenting   parties   to   the   compromise 
namely original defendant nos. 2 and 3.

Thus the salutary question in this appeal is as to whether 

the impugned Judgment and order requires any interference in exercise 
of the appellate power by this Court? The answer has to be given in the 
negative for following reasons:
The first contention is that the earlier Suit no.518 of 1988 

filed   by   the   Plaintiffs   abated   by   order   dated   29.08.1996   and   Writ 
Petition No.6409 of 1996 was dismissed on 17.03.2000.  Hence present 
suit is barred by the principle of Res Judicata (S.11 C.P
.C.). Admittedly 
earlier   Civil   Suit   no.518   of   1988   was   not   decided   on   merits.   No 
evidence was recorded as it was disposed of as abated.  Defendant no.1 
and  2 as  heirs   of   Zulekhabi were  not  permitted  to  come  on  record. 
Hence   it   is   not   just   and   proper   to   say   that   present   suit   is   not 
maintainable as barred by the principle of Res Judicata when earlier 
suit was not decided on merits  according to law. In the ruling in Ram 
Kalap   Vs.   Banshi   Dhar   and   others   AIR   1958   All.   573  in   Para   3 
Division Bench of Allahabad High Court observed thus :
“Order   XXII,   Rule   5   of   the   Code   of   Civil 
Procedure   provides   only   a   summary   procedure 
for   appointing   a   person   to   be   the   legal 

representative   of   the   deceased   party   for   the 
purpose   of   prosecuting   the   suit   and   the   order 
appointing   the   legal   representative   does   not 
operate   as   a   final   determination   of   the 
representative character of the person appointed, 
that is to say, it does not operate as res judicata. 
Vijayalakshmi   Jayaram   Vs.   M.   R.   Parasuram 

and others AIR 1995 AP 351 it was observed in 
Para 5 thus:­
“A Full Bench of Punjab and Haryana High Court 
in
 Mohinder   Daur   vs.   Piara   Singh, 
MANU/PH/0197/1981 
has   held   that 
determination of the point as to who is the legal 
representative   of   the   deceased   plaintiff   or 
defendant under Order 22, Rule 5 of the Code of 
Civil   Procedure   is   only   for   the   purposes   of 
bringing  legal representatives  on record  for  the 
conducting  of  those  legal  proceedings  only and 
does not operate as res judicata and the inter se 
dispute   between   the   rival   legal   representatives 
has   to   be   independently   tried   and   decided   in 

separate   proceedings.   Following   this   decision 
another Judge of Punjab and Haryana High Court 
in  S.Charanjit   Singh   vs.   Bharatinder   Singh, 
MANU/PH/143/1988 held that proper course to 
follow is to bring all the legal representatives on 
record  so that  they vouchsafe   the  estate  of  the 
deceased   for   ultimate   benefit   of   the   real   legal 

representatives”
The   case   of   the   original   plaintiffs   is   that   their   mother 
Jamalbi was Owner of the old Survey No.736 from Shukravar peth and 
land Survey No.737 from old Shukravar Peth. The suit property was 
acquired out of the Sale proceeds of earlier ancestral property.   It is 
further averred that Jamalbi had allowed Mohammed Ali to reside in 
the   suit   property   till   his   death   and   according   to   her   Will;   the   suit 
property will devolve upon the Son of the Mohammed Ali in case he 
begets   Son   from   Zulekhabi   otherwise   entire   property   would   be 
inherited by the Daughters of Jamalbi. Admittedly Mohommed Ali and 
Zulekhabi died issueless. Under these circumstances the claim is made 
that Defendant no.2   Raffique is adopted Son of Mohammed Ali   and 
Zulekhabi.     Exhibit   96   shows   that   the   land   City   survey   no.   737   of 

Shukravar Peth was renumbered as 1021 of Budhvar Peth was mutated 
on 08.03.1967 in the names of the Plaintiff nos.1 and 2 on the basis of 
the Will by Jamalbi Dastagir Belgaonkar who expired in the year 1967. 
The   mutation   entry   remained   unchallenged.   Let   us   consider   the 
evidence on record and admissions by the Defendant no. 1 in his cross 
examination ­

a) In  Para 4 he admits that he has no personal knowledge as to 
property. 
where from the consideration was paid for purchase of the suit 
b) No proceeding  was initiated regarding  the  “Vyavastapatra”  
from Jamalbi.  Land  City Survey no. 1021 in Budhwar Peth (Old 
survey no.737 of Shukrawar Peth was Mutated in the name of  
Original   Plaintiffs   pursuant   to   the   said   “Vyavastha   Patra”  
executed by Jamalbi (vide Ex 174). Old City Survey no.736 of  
Shukravar   Peth   was   also   owned   by   Jamalbi.   (Mother   of   the  
Plaintiffs and Mohommed Ali). Ex 176 is copy of the sale Deed. 
Original Sale Deed is not on record. The said property was sold 
by Mohammed Ali and the Plaintiffs Sairabi and Aisharbi etc to 
Kasabai   Hullappa   Imnad.Thus   Mohammed   Ali   had   limited  
interest/ Share.

c)   No   documentary   evidence   is   on   the   record   to   show   that  
Zulekhabi   paid   any   part   of   consideration   to   purchase   suit  
property.
d)   Zulekhabi   was   not   having   any   separate   source   of   income.  
Merely   because   her   name   was   shown   as   joint   purchaser   by  
Mohammed Ali it would not lead to safe conclusion that she was 
ig
only   surviving   co­owner   in   her   own   right   to   dispose   of   the  
property   to   the   exclusion   of   the   original   Plaintiffs   who   are  
residuary co­sharers under Muslim personal law i.e. Hanafi law 
of inheritance. The Trial Court in its discussion did consider that 
Mohammed Ali and his Wife Zulekhabi were Joint purchasers of 
the   Suit   property   having   considered   the   ostensible   title   of  
Zulekhabi.
e)  Though Defendant no. 1 claims as Brother of Zulekhabi, he 
do   not   know   whether   Mohammed   Ali   and   Zulekhabi   sold  
property City Survey no.1021 in Budhwar Peth (old Survey no
737 of Shukravar Peth which was owned by Jamalbi) in the year 
1982. Defendant no.1 conveniently feigns ignorance as to the  
sale proceeds of earlier property in the hand of Mohammed Ali 
who later used it to purchase the suit property. 

f)   There   was   no   evidence   to   show   that   Mohammed   Ali   had  
purchase   money   from   his   own   source   to   purchase   the   suit  
property.  The  inference  is  that  the  source  of  purchase  money  
emanated   from   Sale   of   ancestral   old   property   owned   by   his  
Mother Jamilabi. (Vide Ex 176)
g) The contention of the defendant no.2 Rafique that he is son of 
Mohammed   Ali   seems   sheer   opportunism.   The   contention   is  
therefore not acceptable as it has no concrete factual or legal  
basis in the evidence on record. The conduct of the defendant no.
2   to   remain   dormant   and   inactive   even   after   death   of  
Mohammed Ali to get his name entered in the Revenue record  
within reasonable time speaks volumes against him.
h) Alleged original  Will by Zulekhabi is  not produced on  the  
record.   No   explanation   is   brought   on   the   record   as   to   why  
original Will document is not produced, although it is claimed  
that Defendant nos.1 and 2 were entitled to claim half­share each 
in the suit property. Onus is upon the propounder of the Will to 
establish   it.   Even   assuming   for   the   sake   of   argument   that  
Zulekhabi could have bequeathed the property, under Muslim  
personal   law   she   could   not   have   bequeathed   more   than   One­
third of her own share in the suit property. Merely because the 

defendant   no   2   told   Tahasildar,   Pune,   that   he   was   accepting  
Zulekhabi as his Mother, it cannot be legally acceptable evidence 
to establish disposition by Will without proper proof according to 
law   or   the   legal   validity   of   the   document.   There   was   no  
acceptable   real   evidence   to   prove   Zulekhabi’s   joint   legal  
ownership of suit property in the absence of the proof of her  
separate   source   of   her   income   and   her   contribution   to   the  

purchase of the suit property.
i) ME 363 was recorded by the Tahasildar, Pune, on the basis of 
superficial   material   mere   Xerox   copy   of   alleged   Will   vide  
statement Ex.135.   According to the contents of the statement  
made by the Defendant no.1 Rajasaheb, Zulekhabi, his maternal 
aunt died issueless on 13­06­1990. Defendant no.1 Rajasaheb  
Appasaheb Maldar claimed that he is legal heir as he is Son of  
Brother of Zulekhabi along with Defendant no.2. 
j) There is no concept of adoption in Muslim personal law so as 
to accept claim that Zulekhabi adopted Defendant no.2 Raffique 
@  Raffique  Sayyad  Abdul   Gaffar   Sheikh  as   her   Son.  Learned  
commentator Mulla in his book "Principles of Mohammedan Law" 
has   observed   that   Mohammedan   Law   does   not   recognize  
adoption as a mode of filiation. He however states that where a 

special family or tribal custom of adoption is proved the adoption 
can be done. The burden of proving custom is on the person who 
asserts   or   propounds   custom.   No     such   custom   has   been  
established in the present suit.
k) Even for the sake of argument if contention of the Defendant 
nos.1 and 2 that Mohammed Ali purchased the suit property is 
accepted,   even   then   since   Mohammed   Ali   died   issueless.   His  

Widow   Zulekhabi   was   entitled   to   1/8th  share   of   the   property  
owned by Mohammed Ali rest going to the Plaintiffs­his two full 
sisters.  Zulekhabi  also  died  issueless.  In   the  absence   of   other  
legal heirs under Muslim Personal law the Plaintiffs were entitled 
to   inherit   the   property   to   claim   their   shares   as   per   Muslim  
Personal Law. 
l)   Version   of   the   defendant   no.2   Raffique   that   he   is   Son   of  
Mohammed   Ali   through   his   alleged   wife   Mariambi   is   found  
without   any   rational   or   convincing   basis   and   appear   an  
afterthought generated by greed, falsely invented, make believe 
story   due   to   his   greed   for   the   suit   property.   Such   artificially  
manipulated version cannot help him or anybody claiming under 
him   to   profess   legal   right   or   title   in   respect   of   the   disputed  
immovable property.

m) Abdul Kafis Abdul Kadir whose affidavit (Ex 87) was sought 
to be relied upon is not examined in the trial Court. Merely   
tendering his affidavit cannot be legal evidence since he was not 
offered for cross examination of the contesting parties. Original 
Nikahnama was not produced to prove marriage according to  
Apart from the observation on merits, it must be borne in 


Muslim Personal law between Mohammed Ali and Mariambi.
mind   that   the   term   `compromise'   essentially   means   settlement   of 
differences by mutual consent terms. In such process, the adversarial 
claims come to an  end and the  cavil between  the parties is  given  a 
decent burial. A compromise which is arrived at by the parties puts an 
end to the litigative battle between them. Sometimes the parties to the 
longstanding dispute feel that it is an unfortunate long drawn out bitter 
struggle and allow good sense to prevail over them  to amicably resolve 
the   dispute.   In   certain   cases,   by   intervention   of   mediator   or   well­
wishers,   the   conciliatory   process   commences   and   eventually,   by 
consensus   and   concurrence,   rights   get   crystallized   for   their   mutual 
benefits. A reciprocal settlement with a clear open mind reduced in to 
writing   is   regarded   as   noble   way   sometimes   by   fair   give   &   take 
approach to end the suit controversy. It signifies dignified and majestic 

facets of the human mind. The mind­set to make peace and not to fight 
is quintessence of sublime somberness and helps social stability. In the 
present case, as the factual matrix would reveal, a consent decree came 
to be passed on the bedrock of a compromise between the consenting 
parties   except   for   the   sole   appellant.   Consent   terms   thus   leaving 
nothing to be done between the consenting parties in the future. The 
curtains were really drawn up between the original plaintiffs and the 

original defendant nos.1 and 2. This Court gave the stamp of approval 
to the same. Thus, the inescapable conclusion is that the compromise/ 
consent   terms   decree   between   the   parties   except   the   sole   appellant 
herein   was   a   final   and   enforceable   decree   between   the   consenting 
parties. 
10
Barring   the   consent   terms,   above   mentioned   facts 
indicated that for want of legal evidence Defendant nos.1 and 2 were 
not entitled to any share as they are legal heirs of neither Mohammed 
Ali   nor   Zulekhabi   according   to   Muslim   Personal   Law.     The   persons 
claiming under Defendant nos.1 and 2 who merely  having ventured to 
purchase   the   immovable   property   on   the   basis   of   revenue   mutation 
entry cannot have legal rights, title and interest in the suit property. 
The sole appellant in Para 17 of his written statement stated thus:­

“....the defendant no 4 has paid the entire monetary 
consideration   to   defendant   nos.1   and   2   and   has 
handed   over   possession   of   two   flats   in   another 
building that has been constructed by Defendant no.
4. It is submitted that Defendant no.4 has fulfilled all 
his obligations towards Defendant nos.1 and 2 and is 
facing considerable hardship and monetary loss due 

to dilatory tactics of the Plaintiffs”. 
If   that   is   so,   sole   appellant   cannot   escape   blame   on   the   ground   of 
conduct of champerty i.e. clandestinely entering in to illegal agreement 
with the litigant to aid or finance the litigation in return for a share of 
the   proceeds   following   a   successful   outcome   of   the   litigation. 
Champertous   litigant   can   never   be   encouraged   as   he   cannot   claim 
equity so as to be allowed to continue the litigation endlessly when all 
other parties have settled the dispute amicably in the suit by means of 
consent   terms   recorded   to   the   satisfaction   of   this   court.   It   is   also 
pertinent to note that the written statement for the defendant nos.1, 2 
and 4 was verified by Altamash Sajid Ismail as their 'power of attorney 
holder'.  He could not have vouchsafed for the averments made in Para 
3   of   the   Written   Statement.     He   alleged   that   Nikah   between 
Mohommed Ali and Mariambi took place on 08.06.1969 at Kolhapur as 

per Muslim Personal law and claimed that the defendant no.2 is  only 
legal   heir   for   suit   property   as   real   Son   of   Mohommed   Ali   through 
Mariambi.  No reliable legal evidence was forthcoming  to establish  tall 
claims made by him as 'power of attorney holder' for defendant nos.1, 
2, and 4. The facts such as  happening of Nikah/ Marriage  ceremony 
which are within personal knowledge of a witness or facts which relates 
to a state of mind of a witness cannot be deposed by indirect evidence 

of  an agent of the party concerned, when facts require direct evidence 
Furthermore, it is well settled legal proposition that mere 

or legal proof by the best evidence available.
revenue mutation entry cannot confer a legal right or title in favour of 
the person who may have succeeded to obtain it sometimes   even by 
clandestine   connivance   with   revenue   official   concerned.   Revenue 
Mutation entry obtained in their favour of the defendants nos.1 and 2 
cannot   confer   any   legal   right   or   title   to   them   in   the   suit   property. 
Mutation entry is not the real evidence of legal title as it is result of 
merely a fiscal inquiry by Revenue officer to prima facie find out or 
discover the person by whom revenue is regularly payable. The final 
decision of the competent Civil Court called upon to decide the legal 
right or title would alone bind the parties.

Learned   trial   Judge   examined   the   facts   in   details   with 

reference to well established principles of Muslim Personal law while 
applying his judicial mind to the facts and circumstances of the case to 
arrive at logical and correct conclusions. The approach of the learned 
trial Judge is to deal with all the contentions raised by the parties by a 
well reasoned and sound judgment. The impugned judgment appears 

Hence appeal by sole appellant has to fail. It is dismissed 
with costs.
the appellate power. 
flawless, without any blemish and needs no interference in exercise of 
14
Learned counsel for the appellant prayed for continuation 
of interim order dated 8.4.2013 for a period of eight weeks. 
15 Continuation of interim order is objected.
16 The interim order passed on 8.4.2013 will continue for a 
period of eight weeks, since the appellant would like to avail of further 
relief, which will continue for a period of eight weeks.

Civil   Application   No.2011   of   2012,   Cross   Objection 

(Stamp) No.21759 of 2008, and Civil Application No.3054 of 2012 do 
not survive and stand disposed of.

(A. P
 BHANGALE, J.)

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