UMME KULSUM BIBI Vs. ABDUL HAI

JUDGEMENT

(1.) Two appeals have been taken up for hearing together they are First Appeal No. 362 of 1979 and Second Appeal No. 792 of 1980. Both the matter have been heard together, because the decision of the Second Appeal would depend upon the decision of the First Appeal.

(2.) To come to the facts of the First Appeal first. The plaintiff filed the suit for partition and accounts. A genealogy was furnished by the plaintiff. It is not disputed that the suit property belonged to one Yakub Ali Mondal. According to the plaintiff, Yakub Ali left wife, Wahidunessa, one son, Abdu1 Hai ( the defendant No. 1) and one daughter, Marium. Following the genealogy, the plaintiff stated that Marium left one daughter, the plaintiff, and husband, Abdul Latif. The Defendant No. 2 is described as a son of Abdul Latif but it is not averred in the paint that the defendant No. 2 is the son of Marium also. By successive devolutions, the plaintiff claimed 1/4th share in the suit properties. She also prayed for a decree for accounts on the grounds that the Defendant No. 1 had mis-appropriated the income from two plots, C.S. Plot No. 3177 and C.S. No. 3164.

(3.) The defendant No. 1 filed a written statement and contested the case. It is admitted that Yakub was the common ancestor. But the first divergence between the plaint case and the defence case is that according to the defendant, Yakub had another wife and out of that wedlock, another son, Fable Karim, was born. It is further stated that Fazle Karim left a widow Naima Khatoon. As against the plaintiff's claim for partition and accounts, the defendant pleaded that the plaintiff and her mother were completely ousted from the suit properties. It was averred that the plaintiff's mother was never in possession and she was aware of that. So also, according to the defence case, the plaintiff wad never in possession. Thus, according to the defendant, the plaintiff was never entitled to any relief whatsoever.