ASH MOHAMMED @ MD. YASIN Vs. MD. ILYAS

JUDGEMENT

(1.) The captioned appeal assails the judgment dated 11.01.2018 passed by the learned District Judge, Bargarh in R.F.A. No. 36 of 2016 confirming the judgment dated 25.7.2016 passed by the learned Civil Judge (Junior Division), Bargarh while making preliminary decree passed in Civil Suit No. 83 of 2010 final and acceptance of the report of the Civil Court Commission. The parties referred to before the learned trial court are also referred in this appeal.

(2.) The infiltrated factual matrix leading to the case of the present appellant as plaintiff is that the plaintiff has filed Civil Suit No. 83 of 2010 for partition of suit properties between the plaintiff and the defendant with further prayer to declare the right of preemption. It is the further case of the plaintiff that the plaintiff and defendant are two brothers governed by Mohammedan Law. After death of Md. Ibrahim, who was the common ancestor, the plaintiff, defendant and their mother Quresa Bibi succeeded to the suit property which consists of residential house. During life time of mother, she divided the suit property into two equal parts allotting each of same to plaintiff and defendant respectively. Accordingly, she plaintiff filed the affidavit sworn in by mother Quresa Bibi on 31.07.2007. After death of mother Quresa Bibi on 29.01.2009 plaintiff requested the defendant for partition to which no result was yielded. Then the suit was instituted. The defendant did not prefer to file written statement, but contested the suit on merit.

(3.) The plaintiff examined P.W.1 and proved some documents. The defendant neither adduced oral evidence nor documentary evidence, but contested the suit. After hearing the parties, preliminary decree was passed declaring one and half share to each of the party over the suit schedule property. Also the decree for preemption was passed to the effect that none of the parties can transfer their respective share to any outsider or third party.