SAKINA BIBI Vs. SAIRI BIBI

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for partition. We have had considerable difficulty in extracting the facts of the case. Once, however, those facts have been ascertained, the disposal of the matter before us gives rise to no difficulty. The pedigree of the family concerned is set out at p. 10 of the printed book. One Shah Muhammad had three sons, Khuda Baksh, Taj Muhammad and Karim Bakhsh. All of these three sons have a number of descendants, but we are informed that the branch of the family of Karim Bakhsh made no claim to the property in dispute. With the reason for this we are not concerned. We have only to consider the rights of the descendants of Khuda Bakhsh and Taj Muhammad inter se. The present suit for partition was brought by Sakina Bibi, a granddaughter of Taj Muhammad, against original 18 defendants. Of these, numbers 1 to. 6 and 9 to 17 are of the branch of Khuda Bakhsh. Defendants 7 and 8 were sons of Taj Muhammad. Defendant 18 Abdul Qadir not to be confused with the two Abdul Qadirs in the branch of Khuda Bakhash, was a grandson of Taj Muhammad. Defendant 8 Nur Muhammad, was subsequently made a co-plaintiff with Sakina Bibi.

(2.) In the year 1922 Mt. Saera Bibi and her son Muhammad Ismail, defendants 3 and 4 in the present suit brought a suit against the other heirs of Khuda Bakhsh and Sakina Bibi, granddaughter of Taj Muhammad, but not making the other heirs of Taj Muhammad parties viz.,Wali Muhammad (defendant 7) Nur Muhammad (defendant 8 and plaintiff 2 in the present suit), and Abdul Qadir (defendant 18 in the present suit), asking for partition of the four houses, subject matter of the present suit. The case for Mt Saera Bibi and Muhammad Ismail in that suit was that the four houses had never belonged to Shah Muhammad, the common ancestor, but had been originally acquired by Khuda Bakhsh. It was, however, found in fact, and the decision was upheld by both the appellate Courts, that the four houses had belonged to Shah Muhammad, and on the basis of that finding a decree was passed in favour of Saera Bibi and Muhammad Ismail for 3-annas 9- 45/80 pies share. There has been no final decree in that suit up to the present date. We may note further that there was no specification of the shares of any other parties to the suit than Mt. Saera Bibi and Muhammad Ismail.

(3.) Subsequent to the date of the preliminary decree in that suit, Mt. Sakina Bibi present plaintiff 1 alleges that she has acquired certain further rights in these houses by gift and purchase of the shares of other persons alleged to be entitled, e.g., Mt. Sakina Bibi claims to have purchased a share of Abdul Qadir, defendant 18 in the present suit. The present suit has been brought by Sakina Bibi, Nur Muhammad, the original defendant 8 being subsequently joined with her as a plaintiff, against the heirs of Khuda Bakhsh, and including also in the array of defendants, defendant 7, Wali Muhammad, and defendant 18 Abdul Qadir (heirs of Taj Muhammad), who like Nur Muhammad were not parties to the earlier suit.