JAN MOHAMMAD Vs. MOHAMMAD KALIM

JUDGEMENT

(1.) THIS second appeal, at the instance of the appellants, is directed against the judgment dated 10.3.1989 and decree dated 29.3.1989 passed in Title Appeal No. 36/88/10/88, whereby and whereunder the learned 3rd Additional District Judge, Giridih allowed the appeal and set -aside the judgment and decree of the lower Court.

(2.) THE case of the plaintiffs is that they filed a title partition suit for partition of the property claiming 1/6 share but the defendants appeared and filed written statement. The facts, which emerge from the pleadings of the parties being admitted case, are that Jugal Mian was the common ancestor and he had a son Jodhi Mian @ Mustak Mian and after his death Jodhi Mian inherited his property. Jugal Mian had five daughters but according to custom of family, daughters did not inherit any property. Jodhi Mian had two wives and from one wife he had two sons, who are defendant Nos. 1 and 2 here in the suit and he has four sons and two daughters from the second wife. According to custom in the family, the daughter did not inherit any property and one of the son is the plaintiff and rest three sons have been arrayed as defendant Nos. 3 to 5 and daughters and sisters have been arrayed as respondent Nos. 6 to 12 in order to avoid any complication. It is said that Jodhi Mian has also acquired some lands by registered sale -deed and some land by hukumnama and thus he acquired in his possession more than 18 acres of land but he did not partition the land. On the other hand defendant Nos. 1 and 2 claimed that Jodhi Mian gave 9.52 acres of land to the mother of defendant No. 1 as oral gift and to the mother of the plaintiff he gave another 9.52 acres of land and on the pleadings of the parties the learned Court of Munsif decreed the suit and being aggrieved by the judgment and decreed, the defendant Nos. 1 and 2 filed title appeal and in the title appeal they won the case and the appellate Court reversed the judgment and decree of the Court of Munsif and allowed the appeal and against the judgment and decree passed by the appellate Court, the plaintiff has filed this second appeal, and while admitting this appeal the following substantial question of law has been formulated as under :

(3.) ON the other hand, learned counsel for the respondents submitted that no partition ever took place during the lifetime of Jodhi Mian and soon thereafter when partition was demanded, then new story has been set up.