RASHEED AHMED Vs. KARIMA KHATOON

JUDGEMENT

(1.) This is the second appeal against the judgment and decree dated 31/05/1982 passed by the then learned V Additional District Judge,Hardoi dismissing the appeal and confirming the judgment and decree passed by Munsif East, Hardoi in Regular suit No. 113 of 1978.

(2.) The facts giving rise to this appeal are that the original plaintiff-appellant had filed the suit for partition on the allegations that one Sheikh Angne had two wives and that Maula Bux plaintiff-appellant and Ilahi Bux defendant-respondent are the sons of Sheikh Angne from the second wife. It is alleged that by means of oral gift Sheikh Angne had in his life time partitioned his whole property amongst his sons on 18-9-1932 and in accordance with each had come in the possession of the property so given and mutations in papers were also made. The plaintiff appellant has in para 3 of the plaint mentioned the properties which were given to him (Mula Bux) and to the defendant Ilahi Bux. It shows that Gondhar and Nalewala groves were given to the plaintiff and the defendant half and half and that in bangkala the plaintiff and the defendant had 1/4 share each and that Jogin Bali grove was given to the plaintiff-appellant in full and that the property of beel and umriya were given to the defendant-respondent in full and that house situate in Mohalla Maidan- pura were given to the plaintiff and defendant half and half.

(3.) The suit was contested by the original defendant-respondent alleging that there has been no partition on 18-9-1932 and he denies that in the house in suit the plaintiff has any share. He also denied that there was any partition on 18-9-1932 and any mutation and alleged that the plaintiff has been in possession of the house. It is alleged that in suit No. 21/47 of 1937 decided by learned Additional Civil Judge on 14-2-1938 family settlement of 18-9-1932 was disbelieved and that it is thereafter that Sheikh Angne had divided his entire property in the year 1941 wherein the disputed house came in the share of the defendant- respondent and he had been continuing in possession over it since then. he has been reparing and constructing it and that in any condition he has completed his right by adverse possession in the house in suit. It is alleged that it was in the month of March 1978 the plaintiff's son was given a room in the disputed house to stay and did not vacate it despite repeated requests and the present suit has been filed by the appellant alleging ownership rights in the house. It was also alleged that if the partition of 1941 is not believed then the plaintiff could not have half share in the house in suit and that the suit being for partial partition it cannot proceed. It is alleged that the suit is barred by estoppel and it is bad for non-joinder of necessary parties. It was also alleged that the suit is barred by time.