MOHAMMAD ABUZAR Vs. AKBAR IMAM SAHEB

JUDGEMENT

(1.) -This is a plaintiff's Second Appeal preferred under Section 100 of the Civil Procedure Code, 1908 (compendiously "the Code") against the concurrent decree dated 4-4-1986 passed by the First Additional District Judge, Nalanda at Biharsharif dismissing the First Appeal, and the trial Court decree dated 31-7-1982 rendered by the 2nd Additional Subordinate Judge, dismissing the suit, for the relief of partition of 50 paise share in the suit land having an area of 1 acre 18 decimal of Plot No. 1321 Khata No 30, Tauzi No. 10633 situate in village Rampur Bagnabad, P. S. Biharshanf District Nalanda mentioned in Schedule I at the foot of the plaint and to carve out separate Takhta of 50 Paise share, with a consequential prayer to give possession of the aforesaid separate share to the-plaintiff.

(2.) Eschewing the irrelevant facts, the material facts are that the suit land belonged to one Md. Hussain who settled an area of 59 decimals by a registered settlement deed dated 17-2-19.48 (Ext. 2) in favour of Bibi Mahfoozan wife of Sk, Leyakat Hussain (defendant No. 9) with Mir Zahur father of defendant Nos. 2 and 5 and with one Akbar Imam (defendant No. 1) by virture of another deed of settlement of the same dated 17-2-1948 and put them in .possession over the same. Bibi Mahfoozan wife of said ok Leyakat Hussain was in need of money and to she hold an area of 59 decimals by a registered sale deed dated 6-8-1963 (Ext. 2 b) in favour of the plaintiff-appellant for a consideration of Rs. 2000/-and the plaintiff came in poesession over the same and got his name mutated in the Sarishta of the Bihar state and used to pay rent and obtain rent receipts. In this way the plaintiff-appellant has half share, but it was in joint possession with other cosbarers. described in Schedule-I. After death of Mir Zahur saheb his four sons came in joint possession with the plaintiff and defendant No 1. As the joint possession posed difficulty, hence the present suit was filed with the aforesaid reliefs

(3.) Akbar Imam (defendant No. 1), Liaqat Hussein (intervenor defendant No 9 and father of the plaintiff) contested the suit with almost the same common plea that the plaintiff has no caus of action and the suit was barred by limitation and that the plaintiff had no right, title or interest over the suit land and 59 decimals of land was purchased . by a deed of settlement dated 17-2 -1948 (Ext 2) by Liaqat Hussain (defendant No .9), father of the plaintiff in farzi name of his wife Bibi Mahfoozan and it was a Benami Transaction. The plaintiff obtained a collusive sale deed dated 6-8-1963 from his mother Mahfoozan, who has no right to make the sale. It is further stated that the sale deed dated 6-8-1963 is illegal, collusive and void, inasmuch as the mother has no right to sell the land in favour of has son, the plaintiff, rather real owner was father of the plaintiff, Liaqat Hussain.