SABIBAN Vs. MAHIDANI

JUDGEMENT

(1.) The plaintiffs have filed this Second Appeal against the judgment and decree dated 08.10.1991 passed by the Lower Appellate Court i.e. 3rd Additional District Judge, Siwan in Title Appeal No. 92 of 1986 dismissing the appeal and confirming the judgment of the trial court dated 30.07.1986 passed by 3rd Additional Subordinate Judge, Siwan in Title Suit No. 26 of 1979 dismissing the plaintiff's suit. The plaintiffs-appellants filed the aforesaid suit claiming partition of half share of plaintiff nos.1 to 3 and 1/4th share of plaintiff nos.4 to 6 in the suit property. According to the plaintiffs, Bhinik Mian had 4 sons. The plaintiffs represent the 2 sons namely Gudar Mian and Fatingan Mian. The defendants are the descendants of second son, Dasa Mian. The first son, Asha Mian was issueless. According to the plaintiffs, Asha Mian gifted his property through oral Hiba to the plaintiff nos.1 to 3, therefore, they are entitled to half share. On the other hand, the defendant's case is that there had already been partition between four sons. Asha Mian never made any oral Hiba. Asha Mian had a son, Jhagru Mian who was living with Hukum Mian jointly. Jhagru Mian made oral Hiba in favour of Hukum Mian and Hukum Mian gifted his property by registered deed of gift dated 06.12.1916 to Rajbali Mian and put him in possession.

(2.) After trial, the trial court considering the evidences recorded a finding that there had already been partition as such, there is no unity of title and possession between the parties without giving any finding as to whether Asha Mian had any son or not. The plaintiffs filed appeal before the Lower Appellate Court and the Lower Appellate Court dismissed the suit.

(3.) On 05.05.1994, the following substantial question of law was formulated: