IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2860 of 2008
Usman Ansari @ Md. Usman ...... Petitioner
Versus
Saira Bano & others ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N.PATEL
For the Petitioner: Mr. Rajan Raj, Advocate
For the Respts. : Mr K.K. Singh, Advocate
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05/ Dated 12th of February, 2009
1. This writ petition has been preferred by original defendant
no. 1 in Partition Suit No. 29 of 2007 wherein an application was filed
under Section 151 of the Code of Civil Procedure by the respondent
defendant No. 1, that the suit is not tenable in law and the original
plaintiff has no locus standi to file civil suit that application has been
dismissed by the trial court and therefore this petition has been preferred
by the petitioner- defendant no. 1.
2. Having heard learned counsel for both the sides and looking
to the facts and circumstances of the case, it appears that the respondent
no. 1 in the present petition who is the original plaintiff instituted the suit
bearing Partition Suit No. 29 of 2007 against the present petitioner
(original defendant No. 1) and against other co-defendants for getting
recognition of her right in the property.
3. It also appears from the facts of the case that defendant no. 1
who is the father of the original plaintiff has raised an issue that under
Mahomedan Law and especially that under Hanafi School, there is no
legal vested right in the children during the existence and during the
lifetime of father, but, this aspect will be decided at the time of final
hearing of the suit it. It is a mixed questions of law and facts. There is no
codified Mahomedan Law nor there is any basis like custom etc., which
has been cited by the original defendant No. 1 in his application. All
depends on the evidence to be led before the trial court. This aspect of the
matter has been properly appreciated by the trial court while disposing an
application after giving proper opportunity to the original defendant no. 1
i.e. the present petitioner. No error has been committed by the trial court
in dismissing an application preferred by the petitioner (original
defendant no.1)
4. There is no substance in this writ petition. Hence, this writ
application is dismissed.
(D.N. Patel, J)
VK