ABID HUSSAIN Vs. ASIM HUSSAIN AND ORS.

JUDGEMENT

(1.) Appellant/Plaintiff No. 1 had filed instant appeal against the judgment dated 19.07.2002 decree dated 02.08.2002 passed by Vinay Ranjan Govind, Sub-Judge-VII, Patna in Title (Partition) Suit No. 83 of 1999/74 of 2001 decreeing the suit in terms of Order-XII Rule-6 of the CPC. During pendency of instant appeal, appellant died on 27.02.2013 and on account thereof, respondent No. 4, who along with other members of respondents 2nd set arrayed as Performa respondents while plaintiff before lower court suit was transposed as appellant.

(2.) Appellant along with respondents 2nd set stood as a plaintiff (used as plaintiffs, henceforth) filed suit for partition asking for relief (a) on the adjudication, a preliminary decree of partition and separate allotment of the suit premises according to the legal share of the parties be passed (b) a survey knowing pleader commissioner be appointed for allotment according to law for preparation of the final decree (c) a permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff or alienating or transferring the suit property or any portion thereof, (d) a decree for cost of the suit, against respondent 1st set/sole defendant (used as defendant, henceforth) and for that, furnished a genealogical table under Schedule-II wherefrom it is evident that original tenant Dr. Kazim Hussain was married with Zakia Begum and sole defendant begotten from the aforesaid marriage. Unfortunately, Zakia Begum died while respondent 1st set/defendant was infant. Dr. Kazim Hussain then married with Sayama Khatoon and out of aforesaid marriage, they have blessed with five sons as well as a daughter namely Sayama Hussain, Quyam Hussain, Abid Hussain, Zahid Hussain, Nazara Hussain, Tansneem (all the plaintiffs). Dr. Kazim Hussain died leaving behind aforesaid legal heirs as well as the immovable property detailed under Schedule-I, of the plaint along with sketch map bearing Plot No. 97 situated under Patliputra Colony, one of the quarters of Patna town under Patliputra Police Station having total area 14352 Sq. feet plus 2748 Sq. feet (Totaling 17,100 Sq. feet). During his lifetime, Dr. Kazim Hussain sold away 2748 Sq. feet on 04.08.1997, retaining the rest area 14352 Sq. feet of Plot No. 97. After death of Dr. Kazim Hussain, as per Hanafi school of Mohammedan Law under which the parties are governed, the wife entitled for 1/8th share and in likewise manner, the sons happens to be, while the daughter 1/16th share and in this way the plaintiffs have 14 anna share. In due course of time, the plaintiffs and the defendant entered into family arrangement whereunder they accede in terms of their entitlement as per sketch map however, the relevant documents could not be prepared as well as the respective parties have not endorsed the sketch map by having their respective signature over the same. Subsequently, the defendant go by from the aforesaid family arrangement as well as also engaged in grabbing upon the other portions exceeding his share and during course thereof, began to but hurdle as well as nuisance whenever, his illegal activities been resisted. On account thereof, it has become obligatory for the plaintiffs to file a partition suit for protecting their interest as well as proper demarcation of their share followed with possession over the suit property. It has also been averred that though the dower was not paid and it happens to be a charge over the property left by the deceased, however, for the present, same is not being raised. Accordingly, providing the other legal requirements such as cause of action as well as court fee, suit for partition has been filed.

(3.) Respondent 1st set/sole defendant (hereinafter defendant) appeared and had filed W.S. wherein the inter se relationship of the parties has been admitted. It has further been pleaded that on 8th June, 1997 Dr. Kazim Hussain had gifted (Hibba) in his favour relating to 3 kattha of vacant land duly detailed under Schedule-'A' of the W.S. as well as had given possession thereof. By such action Dr. Kazim Hussain had divested himself of all kinds of right, title and interest with regard to Schedule-'A' of the W.S. Accordingly, Schedule-'A' of W.S. is coming under exclusive possession of the defendant without any hitch and hindrance. Consequent thereupon, defendant has become sole as well as absolute owner thereof. That being so, the plaintiffs have got no right title and interest with regard to the land detailed under Schedule-'A' of the W.S. It has also been averred that in the background of aforesaid event, plaintiffs have become very much annoyed and on account thereof, at so many occasions they attempted upon life of defendant. It has also been submitted that in April, 1998 the plaintiffs inducted one Hasan Waris as a tenant on a monthly rental of Rs. 2000/- which, the plaintiffs are illegally enjoying, declining to give proper share to the defendant. It has further been submitted that Dr. Kazim Hussain died leaving behind the property detailed under Schedule-'C' of the plaint which only happens to be subject matter of partition. Then made averment with regard to entitlement of share of the respective parties. Then had also disclosed regarding non-payment of dower to his first wife also. Then had admitted that survey knowing pleader commissioner be appointed for ascertainment of share as well as partition of the movable as well as land, falling under Schedule-'B' and 'C'. Schedule-'B' is the details of movable property while Schedule-'C' is the details of immovable property, the subject matter of suit.