MD SULEMAN Vs. MD BAJARAT

JUDGEMENT

(1.) Heard the parties.

(2.) This appeal has been preferred by the appellant against the judgment dtd. 29/1/2010 passed by learned Subordinate Judge-I, Chatra, in Partition Suit No.09 of 2006 whereby and where under the learned court below has dismissed the suit of the plaintiff which was filed with a prayer for partition of Schedule B land and the plaintiff claimed his half share thereon and also for declaring the sale deed No.3804/1979 executed on 26/7/1979 by Hazi Samsuddin and others to be forged and fabricated and a sham document which is not binding upon the plaintiff.

(3.) The case of the plaintiff in brief is that the plaintiff and the defendant Nos.1, 3 and 4 are the sons of Habib Miyan and the defendant No.2 is the wife of the defendant No.1. The parties to the suit are governed by Sunni School of Muslim Law. Some years after the death of Habib Miyan his descendants partitioned the property left behind by him with mutual consent. But the plaintiff and the defendant Nos.1 and 2 continued in jointness and the joint family was governed by the defendant No.1. The plaintiff and the defendant No.1 entered into an agreement for sale in respect of the suit land described in Schedule B of the plaint with Mohd. Kalim and after receiving Rs.2,500.00 out of the total consideration amount of Rs.7,500.00, Mohd. Kalim signed the said agreement. The defendant No.1 got executed the sale deed No.3804 of 1979 dtd. 26/7/1979 in favour of the defendant No.2 after paying the remaining consideration amount of Rs.5,000.00 from the joint family fund to Mohd. Kalim but kept the matter secret. The plaintiff continued in joint possession over the suit land with the defendant No.1. The plaintiff started a rickshaw business and was using half of the suit land measuring area 0.07 acre as garage of rickshaw. The plaintiff claimed half share over the suit land. The plaintiff demanded partition amicably but the same was refused by the defendant Nos.1 and 2. There was a panchayati and an agreement was also entered into between the plaintiff and the defendant Nos.1 and 2 for resolving the dispute between them. But the defendant Nos.1 and 2 started disturbing peaceful possession of the plaintiff over the suit land and a proceeding under Sec. 144 Cr.P.C. was started through Miscellaneous Case No.88 of 2002. An application was also filed by the defendant No.2 on 12/11/2002 for fencing the suit land. The defendant No.2 was having a false claim over the suit land. The defendant No.2 was falsely claiming that she has purchased the suit land from the income of her paternal fund and is also falsely claiming that she was never a member of the joint family and that she along with her husband, partitioned from other brothers in the year 1968 and hence, the plaintiff filed the suit for the said reliefs.