MUSAMMAT RASUL BIBI Vs. MOOSA SOLEMAN SALEJI

JUDGEMENT

(1.) Amongst the several objections which have been urged on behalf of the appellants in this appeal, which they have preferred from a final decree in a suit for partition, there is one which, in our opinion, is of considerable substance.

(2.) The appellants were the defendants Nos. 6 to 9 in the suit. The Commissioner found that the total value of the subject-matter of partition was Rs. 4,22,974-6 6 and that each of the three sets of persons (the second and the third sets being mutawallis of wakf estates) amongst whom the property was to be divided, namely the plaintiffs, the defendants Nos. 1 to 6 and the defendant Nos. 4 to 9, was to get properties worth one-third of the said amount, that is to say, Rs. 1,40,991-7-6. So far as the set consisting of the defendants Nos. 4 to 9 are concerned, the Commissioner allotted to them the following properties. Lots III, III (a) and III (6) of Plot No. 1. Lot III of Plot No. 2. Lot III of Plot No. 3, and Lots III and III (a) of Plot No. 4.

(3.) Defendants Nos. 6 to 9, the defendant No. 6 being common in the second and the third sets, put forward several objections before the Commissioner, one of which was that a quantity of land lying on the north of Hari Mohan Basu Road and east of Dobson Road and comprising an area of 3 bighas 10 cottas was lease-hold and not free-hold, and that therefore the same should be treated as land with disputed title. Defendants Nos. 1 to 3 filed a petition supporting the defendants Nos. 6 to 9 in respect of the aforesaid matter. According to the defendants Nos. 6 to 9 this area would correspond to Lot III and part of Lot III (a) of Plot No. 1 both of which Lots were given in their entirety to the said defendants in spite of their objections aforesaid. The Commissioner overruled the objection mainly on the ground that it was not taken before the Court before the preliminary decree was passed.