RAZIA BIBI Vs. MOHAMMAD NAZRUL HAQUE

JUDGEMENT

(1.) HEARD counsel appearing on behalf of the appellants and also counsel on behalf of the respondents.

(2.) THE instant Second Appeal is preferred challenging the judgment and decree in Title Appeal No. 1 of 2005 arising out of the judgment and decree dated 17.01.2005 passed by Sub -Judge -I, Pakur in original Suit No. 9 of 1980 (Mohammad Nazrul Haque Vs. Razia Bibi and Ors.). The suit was filed for a decree of partition in respect of 5 Ana 8 pie share of the plaintiffs in the suit properties. It was stated that the properties mentioned at Schedule -A are the joint family property of the plaintiffs and defendants. However, certain properties detailed in Schedule -B claimed by the plaintiffs are the self acquired property and no relief was claimed in respect of Schedule -B property. The claim of the plaintiff was regarding 1/3rd share of the property mentioned at Schedule -A. After hearing the parties, the court below allowed 1/3rd share to the plaintiffs in both the properties i.e. Schedule -A and B. The plaintiffs preferred an appeal before the learned District Judge, Pakur. The appeal was allowed by means of impugned judgment. The entire controversy revolves around the question that since no relief was claimed in respect of the property shown at Schedule -B, the trial court erred in law in declaring 1/3rd share in the said property as well. No counter claim was setup on behalf of the defendants.

(3.) RELIANCE has been placed on a decision of the Karnataka High Court in the case of Smt. Gowramma Vs. Nanjappa and Ors., AIR (2002) Karnataka 76.