MD QUAMRUL HAQUE Vs. MD BADRUDDIN

JUDGEMENT

(1.) This Second Appeal under section 100 of the Code of Civil Procedure has been filed against the judgement and decree dated 07.10.1994 passed by learned 2nd Additional District Judge, Patna in Title Appeal No. 128/1991 affirming the judgement and decree passed by learned 10th Subordinate Judge, Patna in Title Suit No. 36 of 1990/ 3 of 1990.

(2.) The appellants herein were the plaintiffs before the court below. Partition Suit No. 36/1990 was filed by the appellants claiming their 2/3rd share in respect of the suit property i.e., the land with house measuring 53 decimals of plot No. 375, Khata No. 12 Tauji No. 5070 situated at village Hamidpur, Kurji in the district of Patna. As per the plaintiffs' case, one Abdul Shakur had two wives. From the first wife he had a son Nazirul Haque and a daughter Juwaida Khatoon. From the second wife he had three sons, namely, Moinuddin, Fashiuddin, Badruddin and three daughters, Kaniz Fatima, Anisul Fatima and Monisul Fatima. The said Abdul Shakur is said to have executed a registered Tamleeknama (Exhibit-2) on 07.11.1953 in favour of one of his sons, namely, Badruddin and two of his daughters, Kaniz Fatima and Monisul Fatima with respect to several lands including the suit land in equal shares. The donees are said to have came and remained in possession as owner of the suit property which were earlier looked after by their father. As per plaintiffs' case Abdul Shakur died in 1965 whereafter Badruddin started looking after the entire property being only male among the donees. He collected rent and distributed it among the three donees equally. As per their case, the three donees, on 16.05.1979, partitioned their lands, excluding the suit land, by registered deed of partition (Exhibit-J) and thereafter the two sisters partitioned their share allotted to them jointly in the partition of 1975 by a registered deed of partition dated 25.04.1981. As per plaintiffs' case the suit land, i.e., plot No. 375 was left joint as it was an orchard and was being looked after by defendant No.1 (Badruddin) on behalf of all the three donees. Gradually, the trees dried up and the donees built up their house on the portion thereof and inducted tenants who had been paying rent.

(3.) This is to be noted that Kaniz Fatima, one of the donees, had died and her heirs, plaintiffs Nos. 2 to 9, pursuit the suit.