BIBI BADRUN NISHA Vs. MD.MASUD AKHTER

JUDGEMENT

(1.) THIS Misc. Appeal arises out of judgment dated 25.2.2004 passed by the 7th Additional District Judge, Bhagalpur in Title Appeal No. 21 of 2001 whereby he has set aside the final decree passed in Title Suit No. 71 of 1973 and directed the trial court to prepare a final decree afresh after giving notice to all the parties.

(2.) IT appears that appellants Bibi Badrun Nisa and others had filed the above title suit against Bibi Sakina and others for partition of the property of one Mahtab AIi The suit was decreed. The plaintiffs were allotted 11 annas, 13 13/27 Gandas of share and the defendants were adjudged four annas, 2 1/2 paise share. A preliminary decree was drawn up on 28.11.1978. Title Appeal No. 16. of 1979 filed against that decree was dismissed on 12.8.1987. Second Appeal No. 340 of 1987 against the appellate order was also dismissed on 2.4.1990. The proceeding of the final decree was initiated by petition dated 29.1.1991. Defendants Sakina, Quamruddin and Jalaluddin after passing of the preliminary decree died on 27.9.1980, 26.11.1996 and 22.1.1997. The trial court appointed a Pleader Commissioner for carving out the shares of the parties. The Pleader Commissioner submitted his report and on the basis of that report the final decree was drawn up on 17.2.1999. Md. Masood Akhtar and Md. Mahmood Akhtar sons of Late Salahuddin (defendant) filed the above Title Appeal No. 21 of 2001 against the final decree on the ground, inter alia, that no notice of the final decree was served on them. The final decree was passed against the deceased defendant without bringing his heirs on record.

(3.) THE respondents filed rejoinder opposing the prayer of the appellants.