MUNIR HUSSAIN SON OF LATE SYED NAZEER HUSSAIN Vs. SYED MUZAFFAR HUSSAIN SON OF LATE SYED MUZAFFARUDDIN

JUDGEMENT

(1.) THE appeal is directed against the judgement and decree dated 21st September, 1982 passed by 5th Additional Subordinate Judge, Siwan in Title Suit No. 54 of 1976/10 of 1982, whereby the plaintiff's suit for partition is dismissed, as such, the appellant has preferred the present appeal.

(2.) SHORTLY stated facts are that the plaintiff filed the suit for partition and prayed for declaration of 3 Ana 10 Karat share in the landed property described in schedule I & II of the plaint and the land mentioned in schedule III with a house in Mouza Hasanpura, P.S.- Amdah, District- Siwan. Plaintiff's case is that there was a partition between his father, Monawar Hussain and his brother Manzoor Imam. The property possessed by Monawar Hussain after partition with his brother is a subject matter of partition amongst his sons and daughters in the partition suit in question. It is the case of the plaintiff that after the death of Monawar Hussain the properties remained in joint possession of his heirs having unity of title and possession, and as such, on demand the properties mentioned in schedules I & II of the plaint is liable to be partitioned allotting specific share to the plaintiff as claimed in the suit. On the other hand, the contesting defendants resisted the claim for partition on the ground that the properties mentioned in schedules I & II of the plaint could not be the subject matter of partition since Monawar Hussain had already made an oral gift in the year 1928 in favour of Kadir, one of his sons, in respect to all his properties which included the properties mentioned in schedules I & II of the plaint. Further case of the defendants is that after the oral gift all the relevant documents with respect to the properties of Monawar Hussain were delivered to his son Kadir who dealth with the properties by way of executing registered sale deeds and also settling the lands. The name of Md. Kadir was mutated in the revenue records of the State. Consequently, rent receipts and chowkidari receipts were being issued in his favour. The family was maintained by Md. Kadir who also got his sisters married. Further case of the defendants is that Monawar Hussain had mortgaged certain lands which were redeemed by Kadir. In other words, the case of the defendants is that there was an oral gift by Monawar Hussain which was acted upon and dealt with by Kadir since the time of oral gift and he continued to do so even after filing of the suit. Defendants have also raised the question of maintainability of the suit in absence of the necessary parties and also that in sum and substance the plaintiff challenges the gift, and as such, required to pay the ad voleram court fee keeping into consideration the market value of the property. The plaintiff as also the defendants in support of their respective cases adduced oral as well as documentary evidence.

(3.) FOR the reasons and discussions made above, I do not find any merit in this appeal. The same is accordingly dismissed. No costs.