MD NURUL HAQUE KHAN Vs. MD MUSTAFA KHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment of affirmance passed in Title Appeal No. 23 of 1994 by the 2nd Additional District Judge, Arrah.

(2.) THE suit was filed by the plaintiff-appellant and Respondent 4th set for simple partition claiming 3/5th share in the suit property as according to them the same was purchased from the nucleus of joint family in the name of defendant No. 1 and the plaintiffs, defendant No. 1 and defendant 2nd set are full brothers and sons of late Sadique Md. Khan having equal share of 1/5th in the same. According to the plaintiffs, their father died in the year 1989 and their mother who is alive lives with plaintiff No. 3 and they and their father and mother were members of joint family. Previously, their father Sadique was manager (Karta), who became old and since 1950, defendant No. 1 Mustafa being eldest amongst brothers became the manager (Karta) of the family and was looking after the affairs and management of the family. It is claimed that there was good income from the joint family properties by which properties were being purchased and from the joint family nucleus the disputed land and house having an area of 9 decimals in Plot No. 511 under Khata No. 260 at Bihia Ward No. 4, holding No. 59 were purchased by defendant No. 1 in the capacity of manager of the family about 24-25 years ago and the plaintiffs had faith over him and were also carrying impression that he will safeguard their interest and if any property is purchased in the name of one brother would be for the benefit of all the brothers having equal shares. THEir further case is that about 14-15 years ago they separated in food but the properties were not partitioned by metes and bounds rather are still joint and for the sake of convenience all the brothers live separately, earn livelihood separately by cultivation and shops. THE plaintiffs subsequently learnt that defendant No. 1 got his name entered in the sale-deed and also got his name mutated with respect to the suit house and when in March, 1991 the defendant 1st set threatened to oust and dispossess them from the suit house, they asked him to partition their shares and on refusal on 2.6.1991 filed the present suit. It is alleged that defendant 2nd set is in collusion with defendant 1st set. Defendant 1st set and 2nd set appeared and filed separate written statements. THE contesting defendants pleaded that the suit is not maintainable, plaintiffs have no valid cause of action and there is no unity of title and joint possession over the disputed house and land and, further, that the family of the parties are not joint and they are not members of the joint family. It has also been denied that the suit property was purchased from any joint nucleus of the family and that father of defendant No. 1 was ever manager of the joint family rather all the five sons of Sadique are separate in mess and business and formed individual family of their own. Further, it is stated that the suit is barred by estoppel, waiver and also barred under Section 34 of the Specific Relief Act and the provisions of Benami Transaction Act and the plaintiffs are not entitled to get any relief.