HAFIJAN BIBI Vs. S K ABDUL JABBAR

JUDGEMENT

(1.) This appeal from appellate order, is at the instance of unsuccessful judgment debtors, in Miscellaneous Appeal No.47 of 1963 dated 30th April, 1964, made by the learned District Judge, Bankura, setting aside thereby the judgment and order dated 16th September, 1963, made in J. Misc. Case No.100 of 1962, by the learned Subordinate Judge, Bankura.

(2.) On or about 12th November, 1956, Title Suit No.77 of 1956 for partition, was filed by the decree holder respondents herein against one Haliman Bibi, being defendant No.4 amongst others and the predecessor-in-interest of the appellants herein. In the said suit, the plaintiffs claimed their 6 annas 8 gandas share on partition by metes and bounds and for separate possession and the suit was valued at Rs.4,000/- . The suit was decreed in the preliminary form on compromise, on 27th May, 1959 and by the said decree, it was held that Defendant No.4 Haliman Bibi would occupy a house during her life time as a licensee. Thereafter, on or about 16th August 1961, on the basis of a report of the Commissioner of Partition, a final decree was passed.

(3.) The decree-holder respondents, thereafter, instituted Title Execution Case No.4 of 1962 for having the said decree executed. As in the meantime, Haliman Bibi, the defendant No.4 had died, her heirs being appellants herein were substituted. Those heirs filed an application under section 47 of the Code of Civil Procedure, contending, inter alia, amongst other that the Title Execution Case in question was not maintainable against them. In support of such contentions, it was firstly submitted that as they were not in possession of the properties as the heirs of defendant No.4, so the decree was not executable against them. It was secondly contended that Md. Sayed, one of the decree-holders had left for Pakistan in March, 1950 and before that he made an oral gift of his share in favour of his mother-in-law Haliman Bibi in 1950. Such gift was contended to be followed up with delivery of possession and it was also submitted that since then the said Haliman Bibi was in possession by constructing 2 huts. It was further contended that Haliman Bibi viz., the predecessor-in-interest of the appellants herein, was a bare license in the suit property and so her interest in the suit property came to an end on her death.