GHULAM MUSTAFA Vs. BIBI ZINAT FATMA

JUDGEMENT

(1.) LN both the appeals the -judgment and decree dated 25th June, 1977 passed in Title Suit No. 89 of 1970/188 of 1974 by the 3rd Additional Subordinate Judge, Arrah District Bhojpur is under challenge.

(2.) THE appellant in F. A. No. 785 of 1977 was defendant no. 4 and appellant in F. A. No. 791 of 1977 was defendant no. 3 in the court below. The suit filed by the plaintiffs -respondent 1st set has been decreed against the contesting defendants and a separate Takhta has been directed to be prepared for Rs. -5/3 pies share of the plaintiffs over holdings no. 898 and 899 i. e. double storied kita house and for Rs. -3/2/2/1/2 karats share of the plaintiffs over Holdings no. 900 and 901 i.e. single storied house.

(3.) FURTHER case of the plaintiff is that in execution of a money decree of one Harkhen Kumar Jain against Taiyba and Md. Amin, the house on Survey Plot No. 5382 was sold which was purchased by Gulam Mustafa (defendant no. 4), who dispossessed the mortgagee Fazlur Rahman, but the said mortgagee filed Title Suit No. 9/25 of 1951 -53 which was decreed on 30.11.1966 declaring that the house standing on Survey Plot No. 5382 was not sold in the execution case and that Gulam Mustafa had not acquired any right, and title on the said house. It is alleged that in a collusive certificate proceeding against himself Gulam Mustafa has got a sale proclamation issued in respect of the houses on Survey Plots no. 5362 and 5382 in favour of defendant no. 5 and when the present defendants no. 1 and 2 filed objection to the said sale it was held that their interest was not affected rather the interest of Gulam Mustafa was sold. Since defendants no. 4 and 5 are purchaser in respect of portion of house on Survey Plot No. 5382, it was felt inconvenient to remain in joint possession and hence the present suit for partition was filed by the plaintiff claiming share of 2 1/2 annas.