MD AYUB KHAN Vs. ABDUS SAMAD KHAN

JUDGEMENT

(1.) This appeal arises out of a suit for partition, in which the plaintiffs claim nine annas five gandas one kauri and odd share in the lands described in schedules 1 and 2 of the plain. The suit was decreed in part, and hence the plaintiffs are the appellants,

(2.) The following genealogical table would indicate the relationship between the parties:

(3.) According to the case of the plaintiffs, Nawab Ali Khan, the common ancestor, had milkiat interest in Tauzi No. 13134, 13136, 13138 and 6541 in village Morawara. He had 16 kathas 11 dhurs of bakasht lands as mentioned in schedule 2, as well as 29 Bighas 14 kathas 14 dhurs of kashi land, as mentioned in schedule 1, of the plaint. After the death of Nawab Ali, his three sons, Darban Ali Khan, Abdullah Khan and Wahid Ali Khan, and the two widows inherited his properties. Thereafter, the three sons separated in mess, but the lands were not partitioned by metes and bounds. They further alleged that Mosstt. Sadiqan, mother of defendants 1 and 2, died during the life time of her father, Darban Ali Khan, and so they could not inherit any share from their mother. Darban Ali Khan had also some private property, namely, 1 bigha 8 khathas 18 dhurs of land, which were inherited, after his death, by his son Abdul Karim, and his widow, Ebadan. Some time later, Abdul Karim died leaving his widow, Ayesha, his mother, Ebadan, and his step uncles, Abdullah Khan and Wahid Ali Khan. Defendants 1 and 2 fraudulently got a deed of gift executed by Mossammat Ebadan and Mossammat Ayesha in their favour. This deed of gift was inoperative and defendants 1 and 2 could claim no interest in any land through this deed of gift. After the death of Abdullah Khan, his share of lands devolved on his brother, Wahid Ali Khan, his mother, Taran, his widow, Raquibunnissa, and his daughters, who are defendants 3, 4 and 8. Thereafter, Mossammat Taran executed two deeds of gift, dated the 5th January, 1949, in favour of the plaintiffs concerning her malkiat property and the plaintiffs came in possession. She had also executed another deed of gift in favour of the plaintiffs. The plaintiffs further inherited properties from Aziz Khan, and the total share of the plaintiffs came to nine annas five gandas one kauri and odd. The bakasht lands described in schedule 2 of the plaint had now become kasht lands because of the vesting of the estate under the Bihar Land Reforms Act. Plaintiffs also stated that the heirs of Abdullah Khan brought Title Suit No. 94/15 of 1952/54 against defendants 1 and 2 as well as the plaintiffs on the basis of the deed of gift dated the 15th April, 1943, executed by Mossammat Ebadan and Mossammat Ayesha. This suit was decreed on the 10th April, 1954, and the decree was finally affirmed by the High Court also. As the plaintiffs felt inconvenience in cultivation of the lands, they brought the suit for partition of their share by metes and bounds.