JAKIR MIAN Vs. ABDUL RAUF

JUDGEMENT

(1.) THIS appeal has been preferred by the above -named applicants who were defendant Nos. 13 and 14 in Partition Suit No. 5 of 1974 which was allowed against the appellants by judgment and decree dated 2.3.1977 by the then Subordinate Judge, Hazaribagh.

(2.) THE Respondent No. 1 as plaintiff filed the above -mentioned suit for partition of his share from defendant Nos. 1 to 12 in respect of the lands of khata No. 122 of village Kuthantia. PS -Chatra, Hazaribagh. The total area in respect of that khata No. 122 is 2.60 acres. The defendant Nos. 13 and 14 who are the appellant in the case were not the original co -sharers but they have come to possess the land and as such according to the plaintiffs, those defendant Nos. 13 and 14 have got no right over the suit land. Objections were raised regarding the payment of fixed Court fee for partition suit from the side of defendant Nos. 13 and 14. and as such the plaint was amended by inclusion of declaration that the defendant Nos. 13 and 14 have got no title over any part of the suit property by their purchase in the year 1968. Defendant Nos. 1 to 12 filed written statement but defendant No. 12 did not file any written statement. Ultimately, plaintiff and defendant Nos. 1 to 12 had filed a compromise petition by which the plaintiffs claim over the suit property had been admitted. Only defendant Nos. 13 and 14 contested and suit. According to the plaintiff, the suit land belonged to his predecessor, Surmali Mian and on is death the whole property by raiyati inheritance and succession had been devolved to plaintiff and defendant Nos. 1 to 12, but the defendant Nos. 1 to 12 did not want to give proper share of land to the plaintiff, so he had no other alternative but to file this suit for partition.

(3.) THE defendant Nos. 13 and 14 in their original written statement admitted that Surmali Mian, the predecessor of plaintiff and defendant Nos. 1 to 12 were the original tenant but he surrendered his tenancy to the landlord, Ganauri Hakim and then the ex -landlord Ganauri Hakim settled this land in Khata No, 122 in favour of Hafiz Abdul Rahim and on his death his widow Bibi Paro inherited property and then sold by a registered deed of sale in the year 1968 in favour of defendant Nos. 13 and 14 and since then they are in possession of a part of the suit property. The defendant Nos. 13 and 14 only had pleaded their right over a portion of the suit property by dint of their purchase from Bibi Paro, they have not pleaded specifically for adverse possession, but during the course of evidence they pleaded for adverse possession also.