HUSSAINI MISTRI Vs. ZAHIRUDDIN

JUDGEMENT

(1.) The plaintiffs have come up in second appeal against a judgment of reversal passed by the lower appellate Court. Their suit had been decreed by the trial Court but has been dismissed by the decree of the lower appellate Court. When the case was originally placed for hearing before a learned Single Judge of this Court, the appeal was directed to be placed before a Division Bench, because in his view some questions of law of considerable importance were involved. Hence this appeal before us.

(2.) The facts relating to the case can be summed up in a narrow compass -- there is no controversy with regard to them. The appellants' case, in brief, was that Nazir Mian who was the owner of the house in question died in the year 1938, leaving behind a son named Najbul Hussain and a daughter Masihan Bibi. Both Najbul and Masihan came in possession of the house after the death of their father. A few years after the death of Nazir Mian aforesaid Masihan Bibi died leaving behind the plaintiffs as her heirs, and thereafter, Najbul Hussain also died leaving the vendors of defendant No. 1 respondent No. 1 as his heirs. Masihan Bibi having confidence in her brother had left the task of payment of rent, etc., in the hands of her brother, and she used to pay her quota of the rent and taxes to him, and after the death of her brother the payment of taxes, etc., used to be made by the sons of Najbul Hussain. Jafar Mian and other heirs of Najbul Hussain sold away their two-thirds interest in the property in suit to defendant No. 1 (respondent No. 1) and the remaining one-third share continued in possession of the appellants jointly with the heirs of Najbul Hussain and after the purchase by defendant No. 1, jointly with him. Due to the purchase of the portion of the house by defendant No. 1, who is a stranger to the family, difficulty and inconvenience was being felt by the appellants, and hence this suit for partition, being partition Suit No. 63 of 1963, was instituted for decreeing the appellants' suit for partition to the extent of their one-third share in the house, bearing municipal holding No. 78, Ward No. 9, in the town of Daltonganj, duly described in Schedule A at the foot of the plaint.

(3.) The defence of respondent No. 1 was that the appellants had no cause of action for the suit; the suit was barred by limitation and adverse possession; the appellants could have neither any title nor any possession over the house in question; Masihan Bibi died during the lifetime of her father Nazir Mian and, therefore, had not inherited any share in that house. The further defence case was that only Najbul Hussain inherited the house as the exclusive owner and plaintiff No. 1 with his family members used to live in a different house altogether which was sold away by plaintiff No. 1 sometime in the year 1954. Thereafter, some quarrel arose between plaintiff No. 1 and his sons, and plaintiff No. 1 was deserted by his sons. He had thereafter to take shelter in the house in suit and subsequently defendant No. 1 purchased the house and plaintiff No. 1 was merely allowed to occupy a portion of the house as a monthly tenant of defendant No. 1 at a rental of Rs. 5/- per month. The entire house, according to the defence case, had been purchased by defendant No. 1 from the heirs of Najbul Hussain and he in his own right had been paying all the taxes and other dues throughout. All the allegations of the appellants to the contrary were dubbed as being false and baseless.