BHAJAHARI Vs. ABDUL KARIM SHAIKH

JUDGEMENT

(1.) This second appeal is by the defendant and it arises out of a suit for partition.

(2.) The suit property comprises of plot Nos. 68, 83, 162 and 181 appertaining to khatian No. 89 of mouza Gahak and it formerly belonged to one Saharjan Sk. who died in the year 1367 B.S. leaving behind two sons Abdul Karim (the plaintiff No. 1) and Abdul Rahim and two daughters Momena Khatun (the plaintiff No. 21 and Mohuda Khatun (the plaintiff No. 3). According to the plaintiffs, though there was no partition of their ancestral properties. their brother Abdul Rahim transferred the suit plots to the six defendants by separate sale deeds falsely claiming that he was in exclusive possession thereof pursuant to an amicable partition amongst the co-sharers. By filing the suit the three plaintiffs therefore prayed for partition claiming 2/3rd share in the suit property.

(3.) In contesting the suit the defendants averred that there was an amicable partition of the properties, left behind by Saharjan Sk. amongst his heirs in terms thereof the suit property fell exclusively to the share of Abdul Rahim. Thereafter Abdul Rahim sold some of the suit properties to them by separate sale deeds. Their further case was that Abdul Rahim sold only a portion of plot No. 68 and therefore being a co-sharer in respect of that plot he was a necessary party to the suit. It was also asserted on their behalf that besides the suit plots, Saharjan Sk. left behind other properties and as those properties were not brought into the hotchpot, the suit was not maintainable.