SARFUDEEN MIYAN Vs. QUADIR MIAN

JUDGEMENT

(1.) THIS appeal at the instance of the defendant -appellant has been preferred against the impugned judgment dated 8.5.2002 passed in Title Appeal No. 61 of 1996 by Shri R.G. Singh Nagesh, Ist Additional District Judge, Latehar whereby and whereunder the judgment and decree of the trial Court passed in Title Suit No. 2 of 1994 were set aside and the appeal was allowed and the ease was remitted to the trial Court for a fresh decision a further issues having been framed and allowing the party to adduce evidence on that issue only and after hearing the parties to decide the suit a fresh and also to appoint a Survey Knowing Pleader Commissioner for the measurement of Suit Plot No. 505.

(2.) THE plaintiffs -respondent have filed the said title suit for declaration that the plaintiffs are the raiyats of the land mentioned in Schedule -B of the plaint from which no other defendants have any concern and upon the said declaration and also of partition of the suit land exclusively allotting a separate Takhta in favour of the plaintiffs therein. The suit land appertains to Plot No. 505 of Khata No. 3 having an area of 1 -1/8 decimals out of 9 decimals situate in village - Karkat, Police Station -Latehar, District - Palamau (Now Latehar).

(3.) THE case of the defendant, inter alia, is that there was partition by metes and bounds between all the four recorded raiyats within ten years of the cadastral survey and Plot No. 505, on which there was a house in its entirety was allotted to the share of Wazir Mian and Immamuddin Mian only whereas contiguous Plot No. 504. having a house there on in its entirety was allotted to Gandauri Mian and Jumman Mian and they all accordingly continued in separate possession till their death and thereafter Jamaluddin Mian and Quadir Mian out of their freewill orally endowed their entire share to Karkat Masjid about 40 years ago and since then Masjid is functioning there. It is alleged that Quadir Mian and Jamaluddin Mian had constructed their houses at different places in which they are residing. It is also alleged that the rest of the portion of Plot No. 505, thus came to be exclusively owned and possessed by defendant No. 9 Seraj Mian, who had sold the same to defendant No. 1, in the year 1988 for valuable consideration and since then, this defendant is in possession thereof as an absolute owner having right, title and interest therein.