ZAHURUDDIN Vs. MD JAN

JUDGEMENT

(1.) This appeal has been filed by the defendants and the plaintiff has filed a cross-objection. The appeal and the cross-objection are both governed by this judgment. They arise out of a suit instituted by the plaintiff for recovery of possession and partition of the plaintiff's share in the disputed properties. The disputed properties were described in five schedules of the plaint and the appeal is concerned with the properties mentioned in schedules 3 and 4 only. The scope of the cross-objection will be dealt with in due course.

(2.) In order to appreciate the plaintiffs case with respect to schedules 3 and 4, a part of the genealogy of the family will have to be stated. One Ahmad Ali had four daughters, namely, Bakridan, Wajan, Rashidan and Kasidan. Bakridan had a daughter named Faridan. Plaintiff is the husband of Faridan. Farjdan had a daughter named Mosst. Soghra who is defendant no. 3. Plaintiff had another brother named Zahuruddin who is defendant no. 1 and whose wife Mosst. Sabujan is defendant no. 2. Zahuruddin's issues are defendants Nos. 4 to 7 and defendant No. 5 is the husband of Mosst Soghra defendant no. 3. It is said that the four daughters of Ahmad Ali had executed a deed of gift dated the 13th September, 1930 to Faridan and Sabujan putting the donees in possession of the gifted property. According to the plaintiff's case, Faridan had been given certain properties exclusively and those are included in Schedule 3 of the plaint, and schedule 4 contains the lands given to her jointly with Sabujan. On these allegations, the plaintiff claimed three fourths share in Schedule 3 properties and three-eighths share in schedule 4 properties. The substance of the contesting defendants case was as follows: The gift said to have been executed by the daughters of Ahmad Ali was accepted as valid but it was alleged that before her death Faridan has gifted away her lands to her daughter Soghra. Thus, it was contended that the plaintiff was not entitled to partition of the lands given in schedules 3 and 4 of the plaint

(3.) The court of appeal below has held that the oral gift by Faridan to Soghra relied upon by the defendants was not proved. It has been held that with respect to the gift of 1930. Faridan and Sabujan had half and half share in schedule 4 properties. It has further been held that Faridan was the owner of the properties mentioned in Schedule 3. It has been held that the plaintiff has not proved possession of the lands of schedules 3 and 4 of the plaint and he was out of possession since the death of Faridan, 16 or 17 years before the institution of the suit. The court of appeal below has further held that the defendants have failed to prove their case of adverse possession as they have not proved ouster of the other tenants-in-common.