GIBI BATOOLAN Vs. HANIFF

JUDGEMENT

(1.) PLAINTIFFS are the appellants in this appeal preferred against the Judgment and Decree dated 31.1.1978 passed in a partition suit whereby the prayer for partition of the share of plaintiffs in the suit land described in Schedule -l to the plaint has been rejected by the trial court on the ground that plaintiffs did not enjoy jointness of title and possession on account of previous partition of the entire suit land among defendants 1, 2 and 3 and that the defendants have successfully proved ouster of the plaintiffs from the suit lands.

(2.) THE material part of the genealogy given by the plaintiffs is not in dispute. According to the said genealogy Sheikh Taj All the common ancestor had two wives namely Budhni and Nazo. From Nazo he had two sons Sk. Nasir whose son Abdul Ghani is defendant no. 3. The other son Sk. Mahamdoo had three sons and three daughters, Defendant no. 1 Sk. Shamsuddin and defendant no. 2, Sk. Abdur Razzaque are two of his sons whereas plaintiff no. 1, Bibi Batoolan is widow of third son Sk. Farid Uddin. Bibi Batoolan had three daughters and the remaining plaintiffs are daughters of Bibi Batoolan or heirs of her daughter. Sk. Shamsuddin admittedly died much before the filing of the present suit. It is the case of the plaintiffs that Bibi Sabiran a daughter of Taj Ali and sister of Sk. Nasir and Sk. Mahamdoo received 8 annas share in the property of her mother Nazo and she sold her share of khata nos. 454 and 455 under registered sale deed dated 4.11.1943 in equal shares to Sk, Shamsuddin, Sk. Farid Uddin and Sk. Abdur Razzaque the three sons of her brother Sk. Mahamdoo. As a result the aforesaid three brothers came to own and possess 4 annas 1 1/5 pies in khata nos. 454 and 455 over which they remained in joint possession. The total lands of these Khatas 19.84 acres was originally the land available for partition as per original Schedule -I to the plaint. Subsequently by amendment 1.84 acres of land of khata no. 39 and 0.84 acres of land of khata no. 639 were included in the Schedule -I and plaintiffs claimed the land of these khatas also as joint lands available for partition, although these lands were purchased in the year 1941 through registered sale deed in the names of defendant nos. 1 and 3 only. The plaintiffs have claimed one anna 4/11 pies share in the suit lands noticed above.

(3.) /11 pies belonging to Jarina Khatoon, one of his three daughters was gifted by Jarina to her minor daughter Bibi Noor Jahan (Plaintiff no. 6) and the said gift was accepted by her father and guardian Md. Khalil because Bibi Noor Jahan \ was minor at that time. 4. The suit was contested by defendant nos. 1, 2 and 3 who filed a joint written statement. According to these defendants Sk. Farid Uddin died in December, 1946 and before his death he made an oral gift of his entire properties in favour of these defendants. Their further case is that after the aforesaid oral gift Fariduddin or his heirs had no possession over the lands concerned and in 1952 these three defendants partitioned the lands in question between themselves. The case of contesting defendants is that they came in possession over their respective shares of land after partition in the year 1952 to the exclusion of all others and hence they have perfected their title even by adverse possession much before the partition suit was filed in the year 1971. Through additional written statements these defendants raised a further defence that the lands of khata nos. 39 and 639 were separate and individual acquisition through registered sale deed of the year 1941. and hence it was not available for partition as joint property.