MUSTAFA KHAN Vs. HAYAT BI

JUDGEMENT

(1.) THIS appeal under section 100 of the Code of Civil Procedure is by defendants 1, 4 and 5 against the judgment and decree dated 29-7-1976 passed by the Additional District Judge, Seoni, in Civil Appeal No. 11-A of 1976, decreeing the suit of the plaintiffs.

(2.) THE plaintiffs had filed the present suit for partition and separate possession with reference to the suit property claiming 46/88th share and according to them defendants 1 to 3 each were entitled to 14/88th share and the rest of the defendants could prescribe no claim. It would be necessary in the present appeal to describe the relationship on the basis of which the claim has been advanced by the plaintiffs. One Lalmiyan, who died several years ago, had three sons, namely, Idoomiyan, Murtejakhan and Mandu Miyan. Idoomiyan had a son Sherkhan. Both of them died leaving behind Abdul Matin son of sherkhan who is defendant No. 5-appellant No. 2. Murtejakhan died on 2-5-1950. He had three wives. The first wife Mst. Umraiyya Bi died leaving behind her son Mustafakhan (defendant No. 1-appellant No. 1 ). His wife is mst. Fatmabi (defendant No. 4-appellant No. 3 ). The second wife Mst. Mahrum Bi also died leaving behind her daughter Mst. Khutijulkubra Bi (plaintiff No. 2-respondent No. 2 ). The third wife Mst. Hayatbi (plaintiff No. 1-respondent No. 1) is still alive and she gave birth to four daughters and two sons :

(3.) AS regards defendants 2 and 3 they accepted the allegations and claim advanced by the plaintiffs. The case was contested by defendants 1, 4 and 5. They, vide their joint written-statement, pleaded that defendant No. 1 after having been appointed as a protected thekadar on 28-8-1950 he alone had become the owner of the lands and houses appurtenant to the thekadari located in village atri while with regard to the other suit property located in mouza Saleh-Bharrvi, the defendant did not dispute the claim of the plaintiffs as that property was held by Murtejakhan in proprietary rights. According to them, after coming into force of the Abolition Act, 1951, defendant No. 1 had become an occupancy tenant under section 39 of the Abolition Act and thereafter on coming into force of the M. P. . Land Revenue Code, 1954 he became a Bhumidhari under section 147 (a) and subsequently after coming into force of the M. P. Land Revenue Code, 1959 he became a Bhumiswami under section 158 of the said Code. Thus, according to the defendants, the step brothers and sisters could prescribe no right or title to the thekadari property located in village Atri. They further pleaded that initially the suit property located in village Atri belonged to one Buttankhan son of Mandoomiyan alias Sayeed Khan who died on 17-10-1935. Originally he was a protected thekadar. He had allotted some lands for maintenance of his cousins, namely, Mohd. Sherkhan son of Idoo-miyan and also to Murtejakhan and Yakubkban. The lands, which were allotted to Sherkhan continued in the name of his son Abdul Matin (defendant no. 5 ). After the death of Buttan Khan, Murtejakhan was appointed as a protected thekadar and after his death defendant No. 1 Mustafa Khan was so appointed. The defendants in the alternative pleaded that there was a partition or a family arrangement effected in the year 1939 and on that basis 53 acres of land were allotted to defendants 2 and 3 (Muntezakhan and Muktedakhan) and some lands were also allotted to plaintiff No. 1 Mst. Hayat Bi and as such that family arrangement stands binding and the present suit is not tenable. It was also tried to be pleaded that defendant No. 5 was allotted 22 acres of land by the original protected thekadar Buttankhan and that land could not be treated as belonging to Murtejakhan which would devolve on his heirs. Lastly, the defendants pleaded that in any case if it is held that the suit property located in village Atri appurtenant to the thekadari rights is liable to be partitioned, then 45 acres of land in possession of Mst. Hayat Bi (plaintiff No. 1) should also be included in it.