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TMI Blog2001 (8) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of Possession of the same from the defendant. The case of the plaintiffs was that two houses Nos.D50139 and D501222, Motialla Qazipura Kalan, Varanasi, belonged to Smt. Zohra Bibi, who was in her early years leading a life of a Prostitute. Subsequently, she got married to Haji Mohammed Siddiq. Thereafter , Zohra Bibi executed a deed of gift dated 10- 4-1923 in favour of her husband and he, in turn, on 15-4-1923 executed a Wakf Deed comprising the above mentioned properties, according to which the original owner Smt. Zohra Bibi was to be the first Mutawalli arid on her death her husband Hazi Mohammed Siddiq was to be the next Mutawalli. The income from the property was to be spent for charitable purposes and one of which was that ₹ 5/- per month from the income was to be given, to the Mosque Rangileshah for the expenses of the same. Smt. Zohra Bibi died in the year 1948. The evidence on record established that the registry in respect of the house, originally recorded in the name of Smt. Zohra Bibi Tawayaf, was cancelled and got recorded in the name of Smt. Zohra Bibi, wife of Hazi Mohammed Siddiq as Trustee in the year 1923 and thereafter it was mutated again in 1949 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was a compromise decree and in terms of the preliminary and final decree passed therein the defendant, was legally put in possession of his share. The status of the plaintiffs as Mutwallis was disputed and put in issue and it was contended for the defendant that not only they have no locus standi to file the present suit but iii any event the previous judgment and decree of the competent Court is binding on the plaintiffs and the present suit was also barred by res judicata. 3. On the above claims and counter claims, the suit was tried by the learned Civil Judge, Varanasi, in which about 13 issues came to be framed. While dealing with the respective claims and disposing of the suit, the learned trial Judge initially sought to decide the other issues on the supposition that the property held by Smt. Zohra Bibi was not. a tainted one, relegating the question of tainted nature or otherwise of the said property for consideration separately at the end. On such consideration, the learned trial Judge upheld the claim of the plaintiffs to be the Mutwallis not only on the basis of a joint application said to have been given by the plaintiffs and Hazi Mohammed Siddiq before his death on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts considered by the learned trial Judge, has chosen to record that before considering any other issue in the suit as has been done by the learned trial Judge, the first point for determination in the appeal should be as to whether Smt. Zohra Bibi acquired the properties in question from out of her earnings as a prostitute and whether a wakf could be validly created in respect of the same and also as to whether she had performed any Tauba and, if so, its effect in the Muslim Law. As a matter of fact, on finding that the learned Trial Judge had not specifically gone into this aspect, two additional issues were framed by the First Appellate Judge on the question as to whether the disputed house was acquired out of the earnings of Zohra Bibi as a prostitute and whether a valid Wakf could have been created in respect of such property. He has permitted additional evidence to be let in at that stage and on the basis of materials noticed by him came to the conclusion that there had been no proper proof of the claim that Zohra Bibi performed any Tauba at the time of her marriage, which took place prior to the gift deed and to the wakilnama and in the absence of the same, the gift deed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Mubarak Hussain, the brother of late Zohra Bibi, after her death, as to how from 1949 itself these two persons' were operating in different directions, though with the common purpose and aim of appropriating the property for themselves. It is seen from the details thereof that when the claim of the husband to sell came to be rejected by an order dated 30-5-55 (Ex.- 7) of the District. Judge, and that to set aside the ex-parte decree in the partition suit filed by Mubarak Hussain, the husband filed an application, both seem to have been drawn nearer; resulting in an agreement dated 28-4- 56 (Ex. a) entered into between them to share the property equally with self-serving and fictitious recitals, opposed to facts noticed even by the Trial Court on the basis of evidence on record. This resulted in the passing of a final decree dated 28-4-56 (Ex. D), after getting the application to set aside the ex-parte decree dismissed. The learned Judge also felt that apart from strong misconception on vital aspect of the law, the findings of Courts below were the result of biased approach and, therefore, called for his interference. After adverting to the relevant passages from the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court by also pointing out how and in what manner the First Appellate and the Trial Judge committed errors of law to warrant interference at the Second Appellate stage. 8. We have carefully considered the submissions of the learned Counsel appearing on either side. No doubt, it has been repeatedly pointed out by this Court that concurrent findings recorded by the Trial Judge as well as the First Appellate Judge on proper appreciation of the materials on record should not be disturbed by the High Court, while exercising Second Appellate Jurisdiction, but at the same time, it is not an absolute rule to be applied universally and invariably since the exceptions to the same also were often indicated with equal importance by this Court, and instances are innumerable where despite such need and necessity warranting such interference, if the Second Appellate Court mechanically declined to interfere, the matter has been even relegated by this Court to the Second Appellate Court to properly deal with the claims of parties in the Second Appeal objectively keeping in view the parameters of consideration for interference under Section 100 of the Civil Procedure Code. Therefore, it becomes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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