SK.JAHIR @ BHUTKU Vs. SK.MAHBOOB

JUDGEMENT

(1.) THIS appeal has been preferred by the proforma defendant -respondent -appellant. The plaintiff filed the suit for partition claiming their 4/5th share in the suit property. The case of the plaintiff -respondents in brief was that they are the descendants of one common ancestor Ashique Mandal. Ashique Mandal had two sons, Gudri Mandal and Badri Mandal. The suit khata was recorded in the names of Gudri Mandal and Badri Mandal, but their respective separate possession was recorded in the remarks column of the record of rights. The suit lands are the lands exclusively shown in possession of Gudri Mandal. According to the plaintiff, Gudri had five daughters, namely, Madni, Ashni, Sadni, Nazinan and Lukho. The plaintiffs claimed to be the descendants of Madni, Sadni, Nazinan and Lukho and the defendants first party (not the appellants here) were, the descendants of Ashni and Madni. The appellants are the descendants of Badri Mandal whose land has not been included in the suit. They were made proforma defendants in the suit. After the death of Gudri Mandal, the plaintiffs being his heirs, succeeded to the suit property and were in possession of the same. Subsequently they felt difficulty in enjoyment of the usufruct of the suit land. Hence, the instant suit was filed for the relief as aforementioned.

(2.) THE defendants first party appeared, but did not contest the suit. The appellants who were the proforma defendants filed written statement and contested the suit. According to the appellants, Gudri died in the year 1948. All the five daughters of the deceased Gudri Mandal and Badri Mandal (his surviving brother) thereafter succeeded to the property of Gudri Mandal and performed Chalisa of Gudri Mandal in the house in which the plaintiffs and the defendants first party had taken part, It was further stated that the said heirs of Gudri had demanded share which was flatly refused saying that they have got no share and interest. Even after the said denial the descendants of Badri Mandal remained in exclusive possession of the suit property openly and adversely and with notice and knowledge of all concerned. According to the defendants -appellants, the suit is thus also barred by limitation as the same is not filed within 12 years from the date of refusal of the plaintiffs claim in the year 1948. Kiti Rana Versus State Of Bihar (Now Jharkhand)

(3.) AFTER considering the evidences and materials on record, issue Nos. 3, 4 and 5 along with other issues were decided against the plaintiffs. It was held that the plaintiffs failed to prove joint possession of the suit property and that there was no unity of title and possession over the suit land and that the plaintiffs are not entitled to decree for partition. It was also held that the suit is barred by limitation. With the said findings ultimately the suit was dismissed by the judgment and decree dated 29.6.2000 by Sub -Judge 1st, Godda.