S M A SAMAD Vs. SHAHID HUSSAIN

JUDGEMENT

(1.) This appeal arises out of a suit for partition in respect of plot No. 1301, measuring 1.01 acres, which along with other properties belonged to one Sh. Tejarat, son of Sh. Joga. Tejarat had two brothers who predeceased him. Tejarat left behind, him as his heirs, a daughter named Adulan (defendant No. 9) and three nephews, namely, Sahid (plaintiff) and Zahiruddin (defendant No.1) sons of one brother, and Khalilpur Rahman, the only son of the third brother. Defendants 3 to 8 are the sons of Khalilur Rahman deceased. There was another nephew of Tejarat named San, who was the brother of the plaintiff. But, according to the plaintiffs, he predeceased Tejarat, while according to the contesting defendant No. 2, he was still alive. Under the Mohammadan law, the daughter Adulan had eight annas share in inheritance, while the nephews together inherited the remaining eight annas share, that is, each of the nephews had two annas and eight pies share. Adulan executed a registered sale-deed on the 17th August, 1939, that is, sometime after the death of Tejarat in respect of the whole of plot No. 1301 in favour of Bibi Hamidan, defendant No. 2.

(2.) Defendant No. 9, Adulan, did not appear; and the other heirs of Tejarat supported the case of the plaintiff. Defendant No. 2, however, contested the claim for partition and said that Tejarat in his life-time had partitioned all these properties amongst his heirs, and by this partition the whole of plot No. 1301 was given exclusively to Adulan, while the remaining plots of land were given to the nephews. Accordingly, Adulan was exclusively in possession of the suit plot, and since the 17th August, 1939, this defendant has been in exclusive possession over the entire plot on the basis of the sale-deed of the date. In the alternative, she claimed title by adverse possession, the last contention was that the suit for partition, for only one item of the properties left by Tejarat was not maintainable.

(3.) The learned Munsif of Patna, who tried the suit accepted the case of the plaintiff on all the points and decreed the suit. Then, defendant No. 2, Bibi Hamidan preferred an appeal, but during the pendency of the appeal she died. A petition for substitution was filed in the first appeal on behalf of her two sons, named, Abdus Samad and Abdul Wahab, who were substituted as the appellants and are also the appellants in this Court. The respondents raised an objection to the effect that Bibi Hamidan had left one more son named Abdul Rahman alias Gunga by her first husband and that he was also in possession of the inheritance left by Mt. Bibi Hamidan, being one of her heirs. Evidence was led before the Additional Subordinate Judge, who heard the appeal, on this point; and ultimately he decided by a separate order dated the 5th September, 1957, that Abdul Rahman alias Ganga was also one of the heirs and, as he was not substituted in time, the appeal abated to the extent of his share, that is, 1/3rd out of the share of Bibi Hamidan in plot No. 1301. On the same date, the learned Additional Subordinate Judge dismissed the first appeal also.