MOHD NASIM Vs. MOHD GUFRAN

JUDGEMENT

(1.) S. P. Srivastava, J. Feeling aggrieved by a preliminary decree passed against him in a suit for partition of the house in dispute holding the share of the plaintiff therein to be 2/9th and further directing the defendants to furnish the account in respect of the rental income received by them from the aforesaid property to the plaintiff, the contesting defendants filed a first appeal which has been dismissed by the lower appellate court. One of the defendants, Mohammad Naseem has now come up in second appeal before this court seeking the setting aside of the impugned decree and praying that the suit be dismissed.

(2.) THE facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass. Mohammad Gufran, the plaintiff had filed the suit giving rise to this appeal for the partition of the house in dispute seeking the separation of his 2/9th share therein putting forward a claim that the house in dispute initially belonged to Mohammad Saddiq who had three sons viz. Mohammad Naushe, Mohammad Naseem and Mohammad Saleem. Besides the three sons he had three daughters Smt. Baharunnisha, Gulzar Begum and Gulnar Begum. According to the plaintiff Mohammad Saddiq on his death was survived by the aforesaid five heirs and consequently the share of Mohammad Naushe under the Mohammadan Law came to be 2/9th which was transferred by him through the sale-deed dated 1- 5-1969 which was duly registered. It was claimed that the defendants No. 6, 7 and 8 were occupying the portion of the house in dispute as tenants and were paying rent of defendant No. 1 Mohammad Naseem, who had not given any account of the rent received by him nor paid the same to the plaintiff. It was in these circumstances that besides seeking separation of the 2/9th share by partitioning the property by metes and bounds the plaintiff also sought for the accounting of the rent realising by the defendant No. 1.

(3.) IT appears that the two sons of Mohammad Saddiq and his three daughters challenged the decree of the trial court before the first appellate court. During the pendency of the appeal, certain issues were remitted for finding before the trial court. The findings were returned by the trial court on 30th March, 1989 whereunder it was found that Mohammad Saddiq had died on 10th May, 1969. IT was also found that apart from the house in dispute Mohammad Saddiq had many other properties apart from the property in suit the details whereof has been furnished in the certified copy of the decree passed in original suit No. 30 of 1994 which was on the record.