MD YAKUB ALI Vs. MD SHIBLI

JUDGEMENT

(1.) The second appeal, by defendants 1 and 3, is against a decree of affirmance and arises out of an action for partition.

(2.) The plaintiff's case may be briefly stated as follows: The suit land measuring 2.41 acres originally belonged to Tadmul Alii, He died leaving behind him his two sons namely Sahabad and Abdul Rasid who got equal shares in the suit property, The plaintiff represents the branch of Abdul Rasid while the defendants represent the branch of Sahabad. Abdul Rasid, the father of the plaintiff, transferred his half share in the property in favour of his wife Hazira Bibi by a registered Haba-bilawaz (vide Ext. 1). On 7-12-51, Hazira Bibi sold a portion of the property out of her 8 annas share in favour of the plaintiff (vide Ext. 3). She also made an oral gift in respect of the remaining property in favour of the plaintiff. Thus, the plaintiff became the full owner of the entire 8 annas share of Abdul Rasid, After the death of Sahabad his three sons inherited his half share in the property. The third son Mohammad relinquished his share in favour of defendant No. 1 Yakub. On 21-10-54 defendant No. 1 made a gift of certain property out of his share in favour of his daughter, defendant No. 3 (vide Ext. G). The plaintiff's contention is that there was no partition by metes and bounds but the parties were possessing separate portions of the property for the sake of convenience and accordingly separate note of possession was made in the C. Section Khatian. The plaintiff demanded amicable partition but to no effect, Hence the suit.

(3.) The suit was resisted by defendants 1 and 3. Their contention was that the suit properties having been already partitioned by metes and bounds between Hazira Bibi and the sons of Sahabad, a suit for re-partition did not lie, It was also contended that the parties had intermediary interest in the suit property and after abolition of the estate the plaintiff applied for settlement under Sections 6 and 7 of the O.E.A. Act and the suit plots Nos. 2432, 2433, 2435, 2441, 2442, 2445 and 2395 were settled in his favour. Similarly defendant No. 1 applied for settlement and suit plots Nos. 2434, 2436 to 2440 and 0.03 acre out of plot No. 2395 were settled in his favour. It was contended that as the lands have been separately settled in favour of the parties no suit for partition Would lie,