MUSTT K FATIMA Vs. MUSST EYASERIN NESSA

JUDGEMENT

(1.) THIS appeal by the successors-in-interest of the defendant Mofizuddin Ahmed is directed against the judgment and decree dated 30th May, 2000 passed by the learned Civil Judge (Senior Division), Goalpara (now Civil Judge) in Title Appeal No.5/1999, whereby and whereunder the appeal preferred by the respondents/ plaintiffs has been allowed by setting aside the judgment and decree dated 22nd July, 1998 passed by the learned Civil Judge (Junior Division), No.1 (now Munsiff), Goalpara in Title Suit No.24/1995.

(2.) THE present respondents as plaintiffs instituted the aforesaid suit in the Court of the learned Civil Judge (Junior Division) No.1, Goalpara for declaration of joint right, title and interest with the defendant in respect of the land described in Schedules-A, B and C; for declaration that the plaintiffs are jointly entitled to 16 Lechas of land being the share in Schedule-B land, leaving the other land in the said schedule to the defendant or 5 Lechas from Schedule-C and 11 Lechas from Schedule-B and also for partition, contending inter-alia that the entire suit land originally belonged to Jallatun Nessa, wife of Mohiuddin and after her death 2/3rd of the entire suit land fell in the share of her son Mohizuddin (original defendant) and remaining 1/3rd to her daughter Hamida Khatun. It has further been pleaded that Hamida Khatun died leaving behind the plaintiff No.1, who is the daughter and four sons, namely Hadi Hussain, Sariful Hussain (plaintiff No.5), Mir Hussain (plaintiff No.6) and Amir Hussain (plaintiff No.7). The further pleaded case of the plaintiffs is that Hadi Hussain died leaving behind his wife Pato Khatun (plaintiff No.2) and one son and one daughter, namely Iftekhar Hussain (plaintiff No.3) and Asida Khatun (plaintiff No.4). According to the plaintiffs, they have inherited 1/3rd of the suit land, which fell in the share of Hamida Khatun, daughter of Jallatun Nessa. It has further been pleaded that when the plaintiff Nos.2 to 7 wanted their shares of the land to plaintiff No.1, though they requested the defendant to partition the land as all are enjoying the said property jointly, the defendant refused to partition the same contending that Hamida Khatun had no share over the property left by Jallatun Nessa, which necessitated institution of the suit.

(3.) THE learned Civil Judge (Junior Division) No.1, upon appreciation of the evidences on record and upon hearing the parties vide judgment dated 22nd July, 1998 dismissed the suit of the plaintiffs by holding that the suit property was gifted by Jallatun Nessa, the mother of the defendant, in his favour and as such, the plaintiffs cannot claim any right, title and interest over any part of the suit land. Being aggrieved, the defendants preferred the aforesaid appeal, which has been allowed by the first Appellate Court by holding that the defendant could not prove the gift allegedly made by Jallatun Nessa in his favour, as required under the Muhammadan Law. Hence, the present appeal.