HAZARI MULL JAIN Vs. NAZIR

JUDGEMENT

(1.) This appeal by Hazari Mull Jain, adopted son of the original plaintiff. Ladu Lal Jain, is directed against the judgment and decree of the lower appellate Court affirming those of the trial Court in title suit No. 8/30 of 1962/67, of the Additional Subordinate Judge, Ranchi. dismissing the suit of the plaintiff. In order to appreciate the question of law involved in the appeal if, is necessary to state briefly the facts of the case.

(2.) The original plaintiff had Instituted the said suit on the 18th January, 1962 against Md. Nazir. Md. Azim alias Md. Aziz and Md. Ismail (defendant Nos. 1 to 3 respectively) for partition of a house constructed on plot No. 438 bearing holding No. 740 A ward No. 2 of the Ranchi Municipality. The said house originally belonged to one Mt. Nhalia. On the 28th June, 1920. she sold the same to one Mt. Lakhi. Defendant Nos. 1 and 2 are sons of Mt. Lakhi from her second husband Sk. Maiu, whereas defendant No. 3, Ismail (who died when the suit was pending before the trial Court and whose heirs were brought on record) was son of Lakhi from her former husband. According to the plaintiff, on the 13th March, 1926. Lakhi made a gift of the said house to defendants 1 and 2. Thereafter on the 11th September, 1944, defendants 1 and 2 sold by a registered sale deed their 2/3rd share to the original plaintiff Ladulal Jain who accordingly came in possession over the same. The plaintiff further pleaded that since he was feeling difficulty in remaining joint he demanded partition of the premises, and on refusal by the defendants he instituted the suit

(3.) A written statement was filed on behalf of defendant No. 1 wherein he admitted the plaintiff's case regarding acquisition of the property by Lakhi and the subsequent gift by her to defendants 1 and 2. It was further alleged that Ismail was the tenant of defendants 1 and 2 in the disputed house and that they (defendants 1 and 2) had executed a sale deed dated the 11th September, 1944 in favour of the plaintiff, but it was never acted upon, as the plaintiff did not pay the consideration money to them, and further the plaintiff never came in possession of the disputed house, which was coming in possession of defendants 1 and 2 from the date of gift. It was therefore, asserted that the plaintiff was not entitled to any decree for partition.