ABDUL TAHER KHAN Vs. FATIMA BIBI

JUDGEMENT

(1.) SINCE common questions are involved in both the Writ Petitions, they were heard together and are being disposed of by this common Judgment.

(2.) BOTH the Writ Petitions arise out of Title Suit No. 130 of 1980 -I filed by present Opposite Parties 1 to 3 in the Court of Learned Civil Judge (Senior Division), Bhadrak for partition claiming 3/8th share. For better appreciation, the genealogy of both the parties is given below: GENEALOGY Sk. Manohar Ali Sk. Asgar Ali Jaheda @ Jabeda Bibi (wife) (D.3) Sk. Akbar Ali (D.1) : Sk. Umar Ali (D.2): Fatema Bibi (Plff. 1) : Sayera Banu (Plff.2) : Ayesha Sultana (Plff.3)

(3.) SO far as compensation received by Defendants 1 and 2 from the Transport and Railway Departments in respect of Schedule 'Cha' properties is concerned, it was averred that the same was received by Sk. Asgar Ali and as Defendants 1 and 2 have not received the same, they are not liable to get any share therefrom. As such, they prayed for dismissal of the suit. The suit was disposed of on 21.9.1988 on contest. The Trial Court on the basis of evidence on record held that the Plaintiffs have no claim over the properties mentioned in Schedule 'Ga' inasmuch as the properties described thereunder belong to Government and are being leased out and renewed from time to time, and the Plaintiffs' father has absolutely no right over the said properties. As such Plaintiffs cannot claim any share over such properties. After the death of Sk. Asgar Ali in the year 1966, the property was not leased out till 1971. In the year 1971, Defendants 1 and 2 in their personal capacity applied for lease and the same was granted in their favour. The said finding of the Trial Court was confirmed by this Court in First Appeal No. 248 of 1988 as Defendants 1 and 2 constructed Lodging and houses after they got the land from the Government on annual lease basis. As such, the Plaintiffs are not entitled to any share from those houses and the rent collected therefrom.