Jharkhand High Court
Walliullah vs Md. Mahfooz Alam on 18 August, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:23996
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 15 of 2025
1. Walliullah, aged about 76 years, S/o Late Wali Alam, R/o Road
No.16, Jawahar Nagar, P.O.- Azadnagar, P.S.- Mango, District-
East Singhbhum
2. Kalimullah, aged about 55 years, S/o Late Wali Alam
3. Amanullah, aged about 60 years, S/o Late Wali Alam
Appellant No.2 & 3 R/o Road No.9, Jawahar Nagar, P.O.-
Azadnagar, P.S.- Mango, District- East Singhbhum
4. Sanaullah, aged about 65 years, S/o Late Wali Alam, R/o H
No.26, Road No.9, Jawahar Nagar, P.O.- Azad Nagar, P.S.-
Mango, Jamshedpur, Dist-East singhbhum
... ... Principal Defendants/Appellants
-Versus-
1. Md. Mahfooz Alam, S/o Late Mahmood Alam, R/o Allam
Cottage, Road No.9, near Alishan Tower, Jawahar Nagar, P.O.-
Azad Nagar, P.S.- Mango, Jamshedpur, District- East
Singhbhum.
2. Ismat Fatma W/o Late Md. Maqsood Alam
3. Md. Mobasseer Alam, S/o Late Md. Maqsood Alam
4. Zeba Maqsood, D/o Late Md. Maqsood Alam
5. Shegufta Maqsood, D/o Late Md. Maqsood Alam
6. Shazia Maqsood, D/o Late Md. Maqsood Alam
7. Farha Maqsood, D/o Late Md. Maqsood Alam
8. Sauowar Sana, D/o Late Md. Maqsood Alam
Respondent No.2 - 8 R/o Waris Colony, Main Road, Zakir
Nagar, West, P.O. - P.S.- Azadnagar, Mango, Jamshedpur, East
Singhbhum
9. Md. Khurshid Alam, S/o Late Mahmood Alam, R/o Waris
Colony, Near Waris Colony, Near Tayeba Masjid, P.O. + P.S.-
Azadnagar, Mango, Jamshedpur, District- East Singhbhum
10. Md. Safi Ahmad, S/o Late Fakir Mohammad
11. Mohammod Khaliquzzaman, S/o Late Shafi Ahmad
12. Talat Yasmin, W/o Wahid Murad, D/o Md. Shafi Ahmad
13. Shaheen Perween, W/o SK. Ramzan & D/o Shafi Ahmad
14. Qamruzzaman, S/o Late Shafi Ahmad
15. Shabana Tabassum, W/o Md. Alam & D/o Md Shafi Ahmad
Appellant No.10 to 15 R/o H. No. 213/B, Islam Nagar, Chandni
Chowk, Kapali, P.O.- Pardih, P.S.- Chandil, District- Seraikela
Kharswan
16. Smt. Sayeeda Bano, D/o Late Mahmood Alam, W/o Wasi
Ahmad, R/o Line Khankah Mohalla, Kishan Ganj (Bihar)
17. Smt. Niyamat Jahan, D/o Late Mahmood Alam, W/o Haji Imam,
R/o Shabki Imli, Patna City, P.O. + P.S.- Patna City, District-
Patna, Bihar
18. Shakil Ahmad, S/o Late Moid Alam, R/o Islam Nagr, H. No.
57F, Kapali, P.S. & P.S.- Chandil, District- Seraikela-
Kharsawan.
2025:JHHC:23996
19. Shamimuddin, S/o Late Moid Alam, R/o Dungodih, P.O.- Kapali,
P.S.- Chandil, District- Saraikela Kharsawan
20. Sanjida Khatoon, W/o Shabbir Ahmad, D/o Late Moid Alam, R/o
Jainpur via Kamtool, District- Madhuban (Bihar)
21. Naushaba Khatoon W/o Md. Sikandar, D/o Late Moid Alam, R/o
Sky Touch Flat, Chepapul, P.O.- Acadranagr, Mango,
Jamshedpur, District- East Singhbhum
22. Zahid Ali Faridi, Husband of Late Shahnaz Perween
23. Md. Kaifee, S/o Zahid Ali Faridi
24. Gulfeshahna Parwen, D/o Zahid Ali Faridi
25. Drakshan Praween, D/o Zahid Ali Faridi
26. Sayyad Mustahsan Maqfee, S/o Zahid Ali Faridi
27. Md. Farkan, S/o Zahid Ali Faridi
Respondent No.22 to 27, Sons & Daughters of Zahid Ali Faridi,
All R/o Dalsing Sarai, P.O. + P.S.- Dalsing Sarai, District-
Samastipur (Bihar)
28. Shahina Perween, W/o Nesar Ahmad, D/o Late Moid Alam, R/o
Bakhtyarpur, Min-Bazar, P.O. + P.S.- Bakhtyarpur, District Patna
29. Naz Perween W/o Akbar Samin, D/o Late Moid Alam, R/o Shain
Bag, P.O.+ P.S.- Shain Bag, Okpla, Delhi
30. Hasan Rizwi @ Munna S/o Late Zaffar Alam, R/o Islam Nagar,
Road No.2, Kapali, P.O. Chandil, P.S.- Chandil, District-
Saraikella-Kharswan
... ... Plaintiffs/Respondents
31(a). Najibullah S/o Late Mohibulla, R/O Road No.13A,
Jawahernagar, P.O.- Azadnagar, P.S.- Mango, Jamshedpur,
Singhbum East
31(b). Md. Samiullah S/o Late Mohibullah, R/o Road No. 9, Purulia
Highway, P.O.- Azadngar, P.S.- Mango, Jamshedpur,
Singhbhum East
31(c). Parween Naaz W/o Sanaullah, D/o Late Mohibullah, R/o Wali
Alam Complex, 2nd Floor, Road No.9, Jawahernagar, P.O.-
Azadnagar, P.S.- Mango, Jamshedpur, Singhbhum East
31(d). Nasrin Bano, W/o Azhar Karim, D/o Late Mohibullah, R/o
Road No.7, H. No. 17, Zakirnagar East, P.O. + P.S.-
Azadnagar, Mango, Jamshedpur, East Singhbhum
31(e). Reshma Bano, W/o Siddique Akbar D/o Late Mohibullah, R/o
C/o Late Prof Masoom, Road No.12, Jawaharnagar, P.O.-
Azadnagar, P.S.- Mango, Jamshedpur, Singhbhum East
31(f). Naznin Bano, W/o Imteyaz Hussain, D/o Late Mohibullah R/o
Mirdad Mohalla, Fatma Manzil, Bihar Shariff, District-
Nalanda, Bihar 803101
32. Shahzahan Parwen, W/o Maqbool Alam, R/o Issopur Phulwari
Sharif, P.O. & P.S- Patna, District- Patna (Bihar)
33. Ruksana Parween, W/o Abdul Bari, R/o Near Imrat-e-Sheiya
Office, P.O. + P.S.- Phulwari Sharif, Patna (Bihar)
34. Reyaz Ahmaad, husband of Late Nazra Praween
35. Alia, Minor daughter of Nazra Praween represented by her father
Reyaz Ahmad
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36. Naubav, Minor son of Nazra Praween represented by her father
Reyaz Ahmad
37. Falak, Minor daughter of Nazra Praween represented by her
father Reyaz Ahmad
From 34 to 37, R/o Near Santu Pan Dukan, Barh Bagan, P.O. &
P.S.- Barh, District- Barh (Bihar)
38. Farooq Azam S/o Late Prof. Md. Masoom, R/o Road No.12,
Jawahar Nagar, P.O.- Azadnagar P.S.- Mango, District- East
Singhbhum
39. Siddique Akbar S/o Late Prof. Md. Masoom, R/o Road No.12,
Jawahar Nagar, P.O.- Azadnagar, P.S.- Mango, District- East
Singhbhum
40. Ali Akbar, S/o Late Prof. Md. Masoom, R/o Road No.12,
Jawahar Nagar, P.O.- Azadnagar, P.S.- Mango, District- East
Singhbhum
41. Razia Shaheen W/o Samiullah R/o Road No.9, Jawahar Nagar,
P.O.- Azadnagar, P.S.- Mango, District- East Singhbhum
42. Md. Khalid Ejaj Hassan, S/o Late Mahmoodal Hassan
43. Afsana Khatoon W/o Late Md. Hasan Iqbal
44. Md. Nawaid Iqbal S/o Late Md. Hasan Iqbal
45. Md. Tauqeer Iqbal S/o Late Md. Hasan Iqbal
46. Md. Tauseer Iqbal S/o Late Md. Hasan Iqbal
From 42 to 46, all R/o H. No.48, Road No.9, Jawahar Nagar,
P.O.- Azadnagar, P.S.- Mango, District- East Singhbhum
47. Smt. Musarrat Jaha W/o Md. Shamim, D/o Late Mahmood
Hassan, R/o Road No.11, Bagan Shahi, P.O.- Azadnagar, PS.-
Mango, District- East Singhbhum
48. Smt. Amzat Jahan W/o Asfaque Ahmad, D/o Late Mahmoodul
Hassan, R/o Road No.12, Jawahar Nagar, P.O.- Azadnagar P.S.-
Mango, District- East Singhbhum
49. Smt. Nusrat Jahan, W/o Md. Qaiser, D/o Late Mahmoodul
Hassan, R/o Road No.7 Zakirnagar (West), P.O.- Azadnagar,
PS.- Mango, District- East Singhbhum
50. Ishrat Jahan W/o Md. Jamil, D/o Late Mahmoodul Hassan, R/o
Bari Nagar, P.O. + P.S.- Telco, Jamshedpur, District- East
Singhbhum
51. Saiful Hassan S/o Late Mahmood Hassan, R/o H.No.48, Road
No.9, Jawahar Nagar, Mango, P.S.- Jawaharnagar, P.O.- Mango,
District- East Singhbhum
52. Jahangir Alam S/o Late Zaffar Alam, R/o Islamnagar, Road
No.2, Kapali, P.S.- Chandil, P.O.- Chandil, District- Seraikela
Kharswan
53. Smt. Ishrat Jahan, W/o Afroz, R/o Islamnagar, Road No.2,
Kapali, P.S. Chandil, P.O.- Chandil, District- Seraikela Kharswan
54. Amina Khatoon W/o Late Zafar Alam, R/o Islam Nagar, Road
No.2, Kapali, P.O.- Pardih, PS.- Chandil, District-Seraikela
Kharshawan.
... Proforma Defendants/Proforma Respondents
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55. Khurshida Begum D/o Late Wali Alam, W/o Shamimul Haque,
R/o Road No.9 Jawahar Nagar, P.O.- Azadnagar, P.S.- Mango,
District- East Singh Bhum
56. Jahan Ara D/o Late Wali Alam, W/o Najibullah, R/o Road
No.13-A, Jawahar Nagar, P.O.- Azadnagar, P.S.- Mango,
District- East Singhbhum
57. Anjum Ara D/o Late Wali Alam, W/o Jawed Akhtar, R/o Islam
Nagar, Kopali, P.O. + P.S.- Chandil, District- Seraikela-
Kharshawan
58. Nasrin Bano D/o Late Wali Alam, W/o Aftab, R/o 2/1, Alishan
Tower Phase-1, Opposite Road No.9, Jawahar Nagar, P.O.-
Azadnagar, P.S.- Mango, Jamshedpur, District- Singhbhum East
.... ... Plaintiffs/Proforma Respondents
---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellants : Mr. Rajiv Ranjan, Sr. Advocate
Mr. Rohan Kashyap, Advocate
For the Respondents : Mr. M.A. Niyazi, Advocate
Mr. Akshay Kumar Mahato,
Advocate
---
15/18.08.2025
1. This First Appeal has been filed against the Judgment and
Decree dated 21.09.2024 (Decree sealed and signed on 28.09.2024)
passed by the learned Civil Judge (Senior Division-VIII), Jamshedpur
in Original Suit No.107 of 2014 whereby the learned trial court has
decreed the suit seeking partition on contest and held that the
plaintiffs are entitled to get 6/12th i.e. ½ share of the suit property. The
schedule-A is the genealogy and Schedule-B is the suit property
consisting of land measuring 1½ Bighas i.e. 30 Kathas at Mango,
Jamshedpur having pucca house and other structures standing thereon.
2. The appellants and Proforma Respondent Nos.55 to 58 are the
legal heirs of the original Principal Defendant No.1 namely, Wali
Alam. Respondent Nos.1 to 17 are the legal heirs of the original
Plaintiff No.1 namely, Mahmood Alam. Respondent Nos.18 to 29 are
the legal heirs of the original Plaintiff No.2 namely, Moid Alam.
Respondent No.30 namely, Hasan Rizwi @ Munna was the Plaintiff
No.3.
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3. The defendant no.1 primarily opposed the suit on the ground
that he acquired the suit property through oral gift -‘Hiba’. The oral
gift has been disbelieved by the learned trial court. Admittedly, the
parties are Mahomedan and governed by Sunny Section of Muslim
Law and the genealogy contained in schedule-A of the plaint is also
not in dispute as during the course of arguments the learned Senior
counsel for the appellants has given up the plea of non-joinder of
necessary parties as recorded in order dated 18.06.2025. It is not in
dispute that Sk. Abdul Ghani was the common ancestor of the parties.
4. Case of the plaintiffs
a. As per the plaint Sk. Abdul Ghani was the common ancestor of the
plaintiffs, Principal Defendant No. l, Defendant Nos.2 to 6 and
Proforma Defendant Nos. 7 to 11. His wife Bibi Fatima Khatoon
died leaving behind four sons namely, Mahmood Alam (Original
Plaintiff No.1), Moid Alam (original Plaintiff No.2), Wali Alam
(original Principal Defendant No.1) and Zaffar Alam (since
deceased) and five daughters namely, Smt. Noor Jahan Khatoon
(original Defendant No.2), Karima Khatoon (original Defendant
No.3), Zaibun Nisa (original Defendant No.8), Safia Khatoon (since
deceased) and Razia Khatoon (since deceased) as their legal heirs
and successors. Zaffar Alam had expired prior to filing of the suit
leaving behind his two sons namely, Hasan Rizwi @ Munna
(Plaintiff No.3) and Jahangir Alam (Defendant No.9) and one
daughter namely, Ishrat Jahan (Defendant No.10) and widow Amina
Khatoon (Defendant No.11) as his legal heirs and successors.
b. Safia Khatoon had predeceased her father Sk. Abdul Ghani and
therefore, her heirs were not entitled for any share over the
properties of Sk. Abdul Ghani and were not made parties to the suit.
Razia Khatoon and her husband also expired leaving behind them
their three sons namely Farooq Azam, Siddique Akbar, Ali Akbar
(Defendant Nos.4, 5 & 6).
c. The common ancestor Sk. Abdul Ghani, alongwith Syed Mohammad
Ekram Ahmad, Manizural Haque and Sk. Abdul Bari, jointly
purchased 6 Bighas of land in Mango, Jamshedpur, from their own
fund vide registered Sale Deed No.3877 dated 04.11.1952. The three
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co-owners amicably partitioned the above land by means of a Deed
of Partition dated 05.01.1953 and Schedule-B land measuring area
1½ Bighas (suit property) came in exclusive share and possession of
Sk. Abdul Ghani who constructed pucca house and enjoyed right,
title, interest and possession and paid electricity and other charges in
his name to the concern authority. Sk. Abdul Ghani, the common
ancestor of the parties expired on 20.03.1981 and his wife Bibi
Fatima Khatoon also expired in the year 1997.
d. It is the case of the plaintiffs that after death of S k . Abdul Ghani, all
the parties i.e. plaintiffs, Principal Defendants and Proforma
Defendants have jointly inherited, acquired, possessed the Schedule-
B property and have been in joint peaceful possession enjoying all
acts of ownership over their undivided shares and portion without
any hindrance from any corner and with the knowledge of all
concern. The Plaintiff No.1 has his 2/12 share and Plaintiff No.2 has
2/12 share and Plaintiff No.3 alongwith Proforma Defendants Nos.9,
10 and 11 have joint 2/12 share over the Schedule-B property as per
Muslim Law and Shariyat. The property has still not been partitioned
amongst the parties by metes and bounds.
e. It is the case of the plaintiffs that the Principal Defendant No.1 is in
occupation of the Schedule-B suit property who has been allowed
by the other parties to the suit to take in use and occupation of the
Schedule-B suit property, but when it became inconvenient to the
plaintiffs and proforma defendants, for the last one year, the
plaintiffs have been regularly approaching the defendants
particularly the Principal Defendant No.1 for partition and
demarcation of their respective shares and portions over the
Schedule-B suit property, but the Principal Defendant No.1 took
time on some or the other pretext and did not agree to partition and
demarcate the share and portion of the plaintiffs over the Schedule-B
suit property as per Muslim Law and Shatiyat.
f. In the month of May 2014, the plaintiffs learnt that the Principal
Defendant No.1 has entered into Development Agreement with
respect to the entire land of Schedule-B property and has allowed the
developer to do construction work over the entire land of Schedule-
B suit property. They inquired into the matter and were surprised
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that the Defendant No.1, fraudulently and mischievously by using
some forged and manufactured documents, got the entire Schedule-
B suit land recorded in his name in the record of rights of the
Government of Jharkhand and also entered into Development
Agreement which casts cloud over the title of the plaintiffs over the
Schedule-B suit property and hence, the suit for declaration of title
and partition by metes and bounds was filed.
g. The cause of action for the suit arose against the Principal Defendant
No.1 on and from 25.08.2014 when the Principal Defendant No.1
refused to partition and to demarcate the share and portion of the
plaintiffs over the Schedule-B suit property and also when the
plaintiffs learnt that the Principal Defendant No.1 entered into
Development Agreement with some Developer for the construction
of building.
5. After receiving summons Defendant Nos.1, 2, 3, 8, 10, 4 & 5
appeared in the suit and filed their written statements on 12.03.2015,
04.06.2015, 11.05.2015 & 16.09.2015 respectively. After death of the
Principal Defendant No.1, his legal heirs and successors filed their
written statement on 02.08.2016. However, rest defendants did not
appear in the suit even after paper publication and hence, order
dated 23.08.2022 was passed for proceeding the suit ex-parte against
them.
6. Case of the original Principal Defendant No.1
I. The original Principal Defendant No.1 filed his written statement on
12.03.2015 stating that the suit is not maintainable; there is no cause
of action or right to bring the suit; the suit is barred by limitation,
estoppel, waiver and acquiescence and under the Provisions of
Specific Relief Act and CPC; the suit is barred under the provisions
of Mohammedan Law and Partition Act; the plaint has not been
properly signed, verified and affidavited as required under the law
and on that score alone, the suit is liable to be dismissed; the suit is
bad for non-joinder and mis-joinder of necessary parties; the widow
of Late Zaffar Alam and sons and daughters of Safia Khatoon are
necessary parties in the suit and in their absence, the suit cannot
proceed; the genealogical table as given in Schedule-A of the plaint
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is not fully correct and the description of the suit land as given in the
Schedule-B of the plaint are vague, confusing and incorrect.
II. He denied that in the survey settlement of the year 1964, Plot No.5
was converted to Plot Nos.810, 811, 817, 818 and 829 and
thereafter, in the survey settlement of the year 1972 published in the
year 1979, the share and portion of land of 1½ bighas has been
corrected to Plot No.2913 under Khata No.763 of Mouza- Mango,
P.S: Mango under Thana No.1641, Ward No.9, MNAC and is the
subject matter of the partition of the suit property.
III. He further stated that as a matter of fact, the land recorded under
C.S. Khata No.4, C.S. Plot No.5, area measuring 6 bigha, Mouza-
Mango were jointly purchased by Sayed Md. Ekram Ahmad,
Manizural Haque, Sk. Abdul Bari and Sk. Abdul Ghani by means of
a registered deed of sale being Deed No.3877 dated 04.11.1952 from
one Naru Ho and they came in peaceful possession of the same. The
aforesaid purchasers, while in joint possession, partitioned the land
in the year 1953 amongst themselves equally and accordingly, Sk.
Abdul Ghani got 1½ bigha of land in his share and he became its
owner. While Sk. Abdul Ghani was in possession of his 1½ bigha
land, the survey operation commenced and the survey was finally
published in 1964 and the aforesaid land came to be recorded in Plot
Nos. 810, 811, 817 and 818 in the name of Sk. Abdul Ghani.
IV. When Sk. Abdul Ghani was in possession of the aforesaid land
measuring more or less 1½ bigha, he orally gifted the same in the
year 1967 to the original Principal Defendant No.1 in presence of
witnesses. Abdul Ghani made an unequivocal declaration of his
intention of making an oral gift of the suit land as donor in presence
of the witnesses in his favour as donee, who expressed his
acceptance of gift in presence of witnesses. The declaration and
acceptance of gift was accompanied by delivery of possession of the
gift by the donor to the donee. The gift became complete in
compliance of aforesaid requirement of gift and the original
Principal Defendant No.1 came in peaceful possession of the
aforesaid plots of land measuring 1½ bigha as absolute owner
thereof and also constructed house in a portion of the aforesaid land.
While the original Defendant No.1 was in possession of the
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aforesaid land, the survey settlement operation had commenced. In
or about the year 1971, the aforesaid land was recorded under Khata
Nos.763, P.S. Plot No.2913, a, b, c, d and e, Ward No.9, M.N.A.C.
and the structures standing thereon were recorded in his name in the
finally published record of right of the year 1979. He is in peaceful
possession of the suit property as absolute owner thereof and he also
got his name mutated in the office of superior landlord vide
Mutation Case No.118/XV/MNAC/87-88 with respect to the
suit land and is paying rent, municipal charges and other charges
in his name to the concerned authorities. Accordingly, he is the
absolute owner of the suit property and is in possession of the
same and the plaintiffs or the other legal heirs and successors of
Sk. Abdul Ghani have no manner of right, title, interest or
possession over the suit property or any portion thereof at any
point of time since the aforesaid transfer was made in his favour.
V. The original Principal Defendant No.1 claimed that Sk. Abdul Ghani
at the time of his death himself did not have any right, title or
interest over the suit property as during his life time in the year 1967
he had orally gifted the suit land to him in presence of witnesses
which is also within the knowledge of the plaintiffs and other
legal heirs and successors of Sk. Abdul Ghani and since then, he
came in peaceful physical possession of the suit land and constructed
house in a portion of the suit land and is living with his family
members. The survey operation commenced in the year 1971 and
the survey settlement was finally published in the year 1979 in
which the suit land was recorded in the name of the Principal
Defendant No.1. Thereafter, he also got his name mutated in the
office of superior landlord and is paying rent, municipal charges and
other charges to the concerned authorities. He also entered his
name in the record of Mango Notified Area Committee and i s
also paying holding tax with respect to the suit property in his name.
VI. Neither the plaintiffs nor the other heirs of Late Sk. Abdul Ghani
ever raised any objection before the survey authority or in the
Notified Area Committee or other authorities claiming any manner
of interest over the suit land. He claimed that the suit property
belongs to him and he has perfected right, title, interest and
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possession over the suit property. He is the absolute owner in
possession of the suit property and therefore, unity of title and unity
of possession over the suit property of the parties does not arise at
all, nor the plaintiffs have got any right to claim partition of the suit
property. He denied that the other parties of the suit have allowed
him to take in use and occupation of the suit property. He also
denied that the plaintiffs have been regularly approaching to the
defendants, particularly to the Principal Defendant No.1, for the last
one year for the partition and demarcation of their respective shares
and partition over the Schedule-B property, but he took time by
some or other pretext and did not agree to partition and to demarcate
the shares and partition of the plaintiffs over the suit property as per
Muslim Laws and Shariyat.
VII. He denied that he fraudulently and mischievously by using forged
and manufactured documents got the entire suit land recorded in his
name in the record of right of the Government of Jharkhand and also
entered into development agreement with respect to the suit land. He
further stated that the claim of the plaintiffs has become barred by
limitation, as the suit for partition has been filed after expiry of more
than 30 years from the date of death of Abdul Ghani. He further
stated that the old structure has already been demolished and the
construction of new building is in progress after getting the building
plan duly approved by MNAC.
VIII. He asserted that the suit property belonged to him and he had every
right to make new construction over the suit land by demolishing the
old structures standing thereon by himself or through the builder and
developer and the plaintiffs have not right to restrain him from
making construction over the suit land or any portion thereof.
IX. Case of the Substituted Principal Defendant Nos.1
After death of original Principal Defendant No.1, his legal heirs and
successors i.e. the substituted Principal Defendant Nos.1(i) to 1(ix)
filed their written statement jointly on 02.08.2016 narrating the
entire case as stated by the original Principal Defendant No.1 in his
written statement. They adopted the written statement filed by the
original Principal Defendant No.1 and further claimed that the
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plaintiffs are not entitled to the relief or reliefs as claimed in the suit
and suit is liable to be dismissed with exemplary cost.
7. Case of the Defendant Nos. 4 and 5
The Defendant Nos.4 and 5 had filed their joint written statement stating
that the suit filed by the plaintiffs is not maintainable in law as well as on
fact. Sk. Abdul Ghani while he was in possession of the aforesaid land,
orally gifted the said land to the original Defendant No.1 Wali Alam in
presence of the witnesses and said Defendant No.1 as donee accepted the
gift in presence of witnesses. The gift was accompanied by delivery of
possession of gifted land in presence of the witnesses. They further stated
that since the aforesaid oral gift was made by Sk. Abdul Ghani, the
Defendant No.1 came in peaceful possession of the aforesaid plots of land
measuring 1½ bigha as absolute owner thereof and also constructed house
in the portion of the aforesaid land and has been exercising all acts of
possession over the same. In the survey settlement operation, the aforesaid
land came to be recorded under Khata No.763, Present Survey Plot Nos.
2913 a, b, c, d and e, Mouza- Mango, Ward No.9, MNAC and the
structures standing thereon in the name of the original Defendant No.1.
They further stated that the plaintiffs or the other legal heirs and successors
of Sk. Abdul Ghani have no manner of right, title, interest or possession
over the suit property or any portion thereof and the suit property belongs
to the Defendant No.1 and he is in peaceful possession of the same as
absolute owner thereof. They further stated that the plaintiffs are not entitled
to the reliefs claimed in the suit and the suit is liable to be dismissed with
cost.
8. Case of the Defendant No.2
The Defendant No.2 took similar stand as that of the original defendant no.
1 and fully supported his case. She has stated that while Sk. Abdul Ghani
was in possession of his 1½ bigha land, the survey operation commenced
and the survey was finally published in 1964 and the aforesaid land came to
be recorded in Plot Nos. 810, 811, 817 and 818 in the name of Sk. Abdul
Ghani. When Sk. Abdul Ghani was in possession of the aforesaid land
recorded in Plot Nos. 810, 811,817 and 818, Mouza: Mango, area
measuring more or less 1½ bigha, he orally gifted the same in the year 1967
to the Defendant No.1 in presence of witnesses. Abdul Ghani made an
11
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unequivocal declaration of his intention of making an oral gift of the suit
land as donor in presence of the witnesses in favour of Defendant No.1 as
donee, who expressed his acceptance of gift in presence of her and
witnesses. Since the oral gift was made by Sk. Abdul Ghani, the Defendant
No.1 came in peaceful possession of the plots of land measuring 1½ bigha
as absolute owner thereof and also constructed house in a portion of the said
land. She further stated that in the survey settlement operation, the
aforesaid land was recorded under Khata No.763, P.S. Plot No.2913, a, b, c,
d and e, Ward No.9, M.N.A.C. and the structures standing thereon were
recorded in the name of the Defendant No.1 and the Defendant No.1 is in
peaceful possession of the suit property as absolute owner thereof and he
got his name mutated in the office of superior landlord. She also stated that
the suit property belongs to the Defendant No.1 and he has perfected right,
title, interest and possession over the suit property. The plaintiffs or the
other defendants had / have no manner of right, title, interest or possession
over the suit property or any portion thereof and therefore the claim of the
plaintiffs that they have been jointly enjoying the acts of ownership
does not arise and are all false and frivolous story. The Defendant No.1
is the absolute owner in possession of the suit property and therefore unity
of title and unity of possession over the suit property of the parties does not
arise at all, nor the plaintiffs have got any right to claim partition of the suit
property. She further stated that the plaintiffs have no locus-standi to file
the suit, nor they are entitled to the reliefs claimed in the suit. She also
stated that no cause of action arose against the contesting defendants as
alleged in Para-20 of the plaint and the plaintiffs are not entitled to the
reliefs claimed in the suit and the suit is liable to be dismissed with cost.
9. Case of the Defendant Nos. 3, 8 and 10
The original Defendant No.3, original Defendant No.8 and Defendant
No.10 had filed their joint written statement supporting the case of the
plaintiffs and further stated that all the statements made in the plaint from
Para-1 to 22 are true and correct and they jointly admitted the same as
true and correct and stated that the plaintiffs are entitled for the ½ share
over Schedule-B property of the plaint. They further stated that the claim of
the plaintiffs is true and genuine and the plaintiffs are entitled for the decree
as sought in their plaint.
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10. On the basis of the pleadings of the parties, the learned trial
court framed 10 issues for consideration, which are as follows:
I. Is the suit maintainable as framed?
II. Has the plaintiff got valid cause of action for this suit?
III. Whether the suit is barred by the Limitation?
IV. Is the suit barred by principal of estoppel, Waiver, and
Acquiescence?
V. Whether the suit is bad for non-joinder and mis-
joinder of necessary parties?
VI. Whether the suit is barred under the provision of
Mohammadan Law and partition Act?
VII. Whether there is unity of title and possession between
the plaintiff and defendants with regard to the suit
property described in Schedule-B of the plaint?
VIII. Whether the plaintiff is entitled to get preliminary
decree for partition, if so to what extent?
IX. Whether the plaintiff is entitled to get the reliefs as
claimed for?
X. To what other relief or reliefs, if any, the plaintiff is
entitled too?
11. The learned trial court considered the materials available on
record and recorded its findings in Paragraph Nos.16 to 27 of the
Judgment. While deciding issue no. VII, the learned trial court after
considering all the material evidences on record, both oral and
documentary, held that so far as the oral gift of suit land is concerned,
there is no cogent evidence adduced on behalf of the contesting
defendants to prove the same. While considering the fact that the
mutation was carried out in favour of the principal defendant no.1, the
learned trial court observed that on perusal of Appendix-C (28) filed
by the contesting defendants which is the correction slip dated
30.11.1987, it appeared the Mutation is on the basis of Khatian
Parcha, which falsify the story of contesting defendant of Oral Gift.
The discussions with respect to the oral witness to the oral gift (hiba)
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as discussed by the learned trial court in the context of the stand taken
in the written statement by the principal defendant no.1, are as under:-
“On behalf of contesting defendants four witnesses have been
examined and Out of the four witnesses. D.W.1 Sanaullah and
D.W.3 Waliullah are the sons of deceased Principal Defendant
No.1 Wali Alam D.W.1 Sanaullah in Para-43 of his cross-
examination has stated that disputed land was gifted by Abdul
Ghani, that time he was about 07-8 years old and the gift was given
orally. In the first time in his examination-in-chief, he deposed
that Gulzar Ali, Abdul Matin and Tahir Hussain were the witnesses
before whom the alleged oral gift was made and accepted. D.W.1
has not disclosed the date, month and place of oral gift. D.W.2
Sohail Ahmad Sufi in Para-10 of his cross-examination has stated
that he has been living in Dhanbad since 1958 and started coming
to Jamshedpur since 1975. Further in Para-12 of his cross-
examination, he has stated that Waliullah is his relative, recently he
has become a Samdhi of Waliullah. His daughter is married to
Waliullah’s son. Further in Para-19 of his cross- examination, he
deposed that Oral gift was made in 1967 at that time he was just
14-15 years. This witness has also not disclosed the date, month
and place of oral gift. In the first time in his examination-in-chief,
he deposed that Gulzar Ali, Abdul Matin and Tahir Hussain were
the witnesses before whom the alleged oral gift was made and
accepted. This witness seems to be interested witness.
D.W. 4 Naushad Ali in Para-17 of his cross-examination has
stated that in the year 1967 his age was sixteen years, he is
permanent resident of Jabalpur, Madhya Pradesh, but his birth
place is Sakchi, Jamshedpur. Further in Para- 27 of his cross-
examination, he deposed that it is true that Abdul Ghani gave the
house to his son Wali Alam to reside and used for his business. In
Para-3 & 4 of his examination-in-chief, he deposed that in 1967
disputed land was given by Sk. Abdul Ghani to Wali Alam through
oral Gift, and that time Gulzar Ali, Abdul Matin and Tahir
Hussain were present, he was also present with his father. None of
the alleged three witnesses were produced before the court as
witness and it is also not averred that they are not alive or not
14
2025:JHHC:23996traceable. None of three defendant’s witness D.W.1 to D.W.3 took
the name of Naushad Ali. From perusal of case record, it appears
that while instant suit was filed, then Principal Defendant No.1
Wali Alam was alive, who appeared in this suit and filed his written
statement on 12.03.2015 and in his written statement, he claimed
that Abdul Ghani during his life time in the year 1967 orally gifted
the suit land to him (Principal Defendant No.1) in presence of
witnesses, which is within knowledge of the plaintiffs and other
legal heirs and successors of said Abdul Ghani and since then he
is in peaceful physical possession in the suit land, but in his written
statement date, month and place of oral gift are not mentioned. It is
not mentioned as to who were the witnesses before whom the
alleged oral gift was made and accepted. None of the legal heirs
(sons and daughters) of Late Abdul Ghani were the witness to the
alleged oral gift.”
The learned trial court while deciding issue no. VII, after rejecting
the plea of oral gift (hiba) as pleaded by the contesting
defendants, ultimately held as follows: –
From, perusal of evidence orally as well as documentary
produced by both the parties, it appears that there are unity and
joint possession of the parties over the Schedule-B property and all
the parties to this suit are having their respective undivided share
and portion over the Schedule-B suit property as per Muslim Law
and Shariyat, and which has still not been partitioned in between
the parties to this suit by metes and bounds. As discussed above it is
crystal clear that the deceased Principal Defendant No.1 Wali
Alam was in occupation of the Schedule-B property who has been
allowed by the other parties to this suit to take in use and
occupation of the Schedule-B suit property, Moreover D.W. 4 in
Para-27 of his cross-examination has admitted that Abdul Ghani
had given house to his son Wali Alam for staying and for business.
From, the above discussion, it can be said that previously
there was no previous partition was made amongst the parties.
Plaintiffs and their witnesses have also proved that there was no
previous partition amongst the parties and there is unity of title and15
2025:JHHC:23996possession between the plaintiffs and defendants with regard to the
suit property. Therefore, from the above discussion, I come to the
conclusion that plaintiffs have fully able to prove to substantiate
their case as there was no previous partition made between the
parties and there is unity of title and possession between the
plaintiffs and defendants with regard to the suit property. Therefor
this Issue No. VII is decided in favour of plaintiffs and against the
contesting defendants.
22. Issue No. IV
Is the suit barred by principal of Estoppel, Waiver and
Acquiescence?
Although these issues have been raised by the contesting
defendants in their written statement, but nothing has been
brought on record in respect to these issues. Therefore, this issue
is decided in favour of plaintiffs and against the contesting
defendants.
23. Issue No. V
Whether the suit is bad for non – joinder and mis -joinder of
necessary party?
Although this issue has been raised by the contesting
defendants in their written statement and claimed that the widow of
late Zaffar Alam and sons and daughters of Safia Khatoon have not
been made parties, but from the perusal of plaint, it appears that
the Amina Khatoon was widow of Zaffar Alam had already been
made party in the present suit vide order dated 28.01.2016. As far
as Safia Khatoon is concerned, in their plaint, plaintiffs have
claimed that Safia Khatoon predeceased her father Abdul Ghani
and therefore, her legal heirs become Maznoo Miras and have no
right in the property of Abdul Ghani as per Mohammedan Law.
D.W. 3 in Para- 30 of his cross-examination has stated and
admitted that the Safia Khatoon died before the death of Abdul
Ghani. D.W. 1 in Para-42 of his cross-examination has stated that
Safia Khatoon died before the death of his grandfather. As per
Mohammedan Law that only the surviving heirs at the time of death
of the person whose property is to be divided are entitled for the
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share. Therefore, this suit is not bad for non-joinder and mis-
joinder of necessary party. Therefore Issue No. V is decided in
favour of plaintiffs and against the contesting defendants.
24. Issue No. III
Whether the suit is barred by Law of Limitation?
Although this issue has been raised by the contesting
defendants in their written statements and claimed that the present
suit filed by the plaintiffs after lapse of 34 years from the finally
published record of right in the years 1979, so suit is hopelessly
barred by Law of Limitation. In this regard contesting defendants
refer the decisions reported in 2003 (2) JLJR page 708 to 714 and
submitted that in the aforesaid judgment Hon’ble Court has held
that “the finally published record of right which is admissible in
evidence and a presumption of correctness is attached to the entry
finally published in the record of right shall be a conclusive
evidence that the record has been duly made accordingly to law”
Further Ld. Counsel submitted that in the aforesaid decision the
Hon’ble Court have also held that “It cannot be held that there is
period of limitation for filing a suit for declaration that the entries
made in revenue record of right is wrong or for declaration of title
and recovery of possession maximum period of limitation for filing
a suit for declaration of title and recovery of possession and for
challenging the entry made in the survey record of right will be 12
years from the date of final publication of record of right –
instantly, suit filed 18 years after the revisional survey record of
right in respect of the suit property was finally published in the
name of defendant suit clearly barred by limitation. In the light of
above referred judgment, contesting defendants claimed that the
present suit filed by plaintiff is barred by limitation. Further
contesting defendants in their written statement have also claimed
that the plaintiffs are not in possession of the suit property and they
have not sought any relief for recovery of possession of the suit
property and the defendants are in possession of the suit property
since 1967. Further contesting defendants claimed that as per the
Rule 212 (III) Chapter 17 – Syn -V of Mohammedan Law that
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“each heirs has a right to file suit against other co-heirs for
recovery of his own share. The heirs are tenants-in-commons in this
suit governed by Article 65 of Limitation Act, accordingly to which
the Limitation period for filing the suit for recovery of his share by
a heir is Twelve (12) years”.
Whereas plaintiff have referred the “Mulla (Principles of
Mohammedan Law 23rd Edition) (Chapter V, Pages 42-43) on
limitation :
“…. the heirs succeed to the estate as tenants-in-common in
specific shares when the heirs continue to hold the estate as
tenants-in-common without dividing, it and one of them
subsequently brings a suit for recovery of his share, the period of
limitation for the suit does not run against him from the date of the
death of the deceased, but from the date of express ouster or denial
of title : in other words, it is Article 144 of Schedule I to the
Limitation Act 1908 that applies and not Article 123.”
In their plaint, plaintiffs have also claimed that the in the
month of May 2014 when it has been learnt by the plaintiffs that
the Principal Defendant No.1 has entered into Development
Agreement with respect to entire Schedule-B property and allowed
the Developer to do the construction work and on 25.08.2014 when
the principal Defendant No.1 refused to partition and to demarcate
the share and portion of the plaintiffs. On the discussion of Issue
No. VII, it is crystal clear that the plaintiffs and their witnesses
have fully proved that the suit land is part and parcel of the joint
family property and no partition was held between the parties,
there is unity of title and possession between the plaintiffs and
defendants with regard to the suit property. Therefore, suit is not
barred by the law of limitation. Hence, Issue No. III is decided in
favour of plaintiffs and against the contesting defendants.
25. Issue No.VI
Whether the suit is barred under the provisions of
Mohammedan Law and Partition Act?
This issue has also been raised by the contesting defendants
in their written statements, but nothing has been brought on the
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record in respect to this issue. Therefore, this issue is decided in
favour of plaintiffs and against the defendants.
26. Issue No. I, II, VIII & IX
Plaint appears to be properly framed with valid cause of
action and required court fee had duly been paid. Plaint appear to
be complied with the mandate of C.P.C. As already discussed in
determination of Issue No. III, IV, V, VI & VII which are decided
in favour of the plaintiffs, it is crystal clear that the plaintiffs and
their witnesses have substantiate to prove that there is unity of title
and possession over the suit property between plaintiffs and
defendants. Plaintiffs have also proved that there was no previous
partition ever done between the plaintiffs and defendants with
regard to the suit land and there is unity of title and possession
between the plaintiffs and defendants with regard to the suit
property. Hence, plaintiffs have got valid cause of action, Plaintiffs
suit is also maintainable in present form and plaintiffs are entitled
to the decree as claimed for. Therefore, Issue No. I, II, VIII & IX
are also decided in favour of the plaintiffs.
27. Issue No. X
This issue has not been pressed by the plaintiffs, hence there is no
need to discuss the issue in absence of prayer of plaintiffs.”
12. The learned trial court decided the Issue Nos. III, IV, V, VI and
VII in favour of the plaintiffs and against the contesting defendants.
The learned trial court decided the Issue Nos. I, II, VIII and IX in
favour of the plaintiffs. The plaintiffs did not press the Issue No. X
and accordingly, the learned trial court did not discuss this issue in
absence of prayer of the plaintiffs. The learned trial court decreed the
suit on contest, but without cost and held that the plaintiffs are entitled
to get 6/12th i.e. ½ share of the suit property.
Arguments on behalf of the appellants
13. The learned senior counsel for the appellants submitted that a
finding has been recorded by the learned trial court with respect to
non-joinder of necessary party against the appellants. However, the
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appellants are not aggrieved by such findings and therefore, he does
not want to press, so far as point of non-joinder of necessary party is
concerned.
14. The learned senior counsel further submitted that essentially
two points would arise for consideration. With respect to the 1st point
regarding partial partition, he submitted that there is ample evidence
on record that there was property in the name of Abdul Ghani at
Bhojpur, but the plaintiffs did not disclose the properties at Bhojpur
and sought partition of the property only at Jamshedpur.
15. During the course of arguments, it transpired that even in the
written statement, no such point was taken.
16. However, the learned senior counsel submitted that there is
enough evidence from the side of the plaintiffs also that there were
landed properties which are yet to be partitioned. The learned senior
counsel submitted that partial partition is not permissible under
Mahomedan Law and for that purpose, he relied upon the judgment
passed by the Hon’ble Supreme Court reported in (1971) 1 SCC 597
(Syed Shah Ghulam Ghouse vs. Syed Shah Ahmed Mohiuddin
Kamisul Quadri) Paragraph- 19 and 20 and 2024 SCC OnLine SC
3809 [Mansoor Saheb (Dead) and Others -vs- Salima (D) by Lrs.
and Others] Paragraph- 14 to 17 in particular.
17. The learned senior counsel submitted that the suit itself was not
maintainable on account of the fact that the suit was essentially for
partial partition and once it has come on record that there were other
properties of the family, then under such circumstances, the suit was
fit to be dismissed as not maintainable. The plaintiffs have to stand on
their own legs and no relief can be granted beyond what is permissible
under law. He extensively referred to the evidence on behalf of the
plaintiffs and the defendants and placed the impugned judgement to
submit that existence of property at Bhojpur is admitted, but they were
not subject matter of partition.
18. The learned senior counsel also referred to the judgment passed
by the Hon’ble Supreme Court reported in (2009) 9 SCC 52 (R.
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2025:JHHC:23996
Mahalakshmi vs. A.V. Anantharaman & Others) and submitted that
though the said judgment is in connection with Hindu Law, but in the
said case, the partition was sought for without taking a stand that the
suit was for partial partition and all the properties did not form the
subject matter of partition in the suit and therefore the matter was
remanded to amend the plaint and to lead evidence.
19. The learned senior counsel also relied upon the judgment
passed by the Hon’ble Supreme Court reported in (2015) 14 SCC 450
(State of Madhya Pradesh vs. Nomi Singh & Another) to submit that
the plaintiffs have to stand on their own legs and weakness of the case
of the defendants will not be a reason to decree the suit.
20. With respect to the 2nd point regarding validity of hiba (oral
gift), the learned counsel for the appellants submitted that three
ingredients are required to prove hiba (oral gift) – declaration,
acceptance and delivery of possession and all the three ingredients are
present in the present case and it has come on record that the original
Principal Defendant No.1 was in exclusive possession of the suit
property and has constructed a building over the same. He also
submitted that there can be physical or constructive possession. He
extensively referred to the evidence on behalf of the plaintiffs and the
defendants and placed the impugned judgement to submit that hiba
(oral gift) in favour of the original Principal Defendant No.1 by Sk.
Abdul Ghani was duly proved and therefore, the suit for partition with
respect to the suit property was not maintainable. He has in particular
referred to the evidence of D.W.-4 who claimed to be present at the
time of hiba (oral gift). He submitted that all the three conditions of
hiba (oral gift) – declaration, acceptance and delivery of possession
were proved to have taken place simultaneously. The learned Senior
counsel referred to the evidence of DW-1, son of original Principal
Defendant No.1, and submitted that DW-1 has also fully supported the
case of oral gift and fully placed his evidence during the course of
hearing. The learned senior counsel also submitted that after lapse of
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much time only the circumstances would show the factum of oral
evidence.
Arguments on behalf of the contesting respondents (plaintiffs)
21. Learned counsel for the contesting respondents while referring
to the issue of partial partition, as raised by the learned senior counsel
for the appellants, submitted that partial partition is permissible under
Mahomedan law qua one or the other property. He referred to the
book, namely, Mulla Principles of Mahomedan Law 23rd Edition,
Page-5 and in particular referred to Paragraph- 43 and 44 to submit
that it has been clearly mentioned therein that Muslims are not obliged
to sue for partition for all the properties in which they are interested.
There is nothing to preclude one of them from seeking a partition of
some of the items of the properties. In support of the aforesaid
submission, he referred to the book, namely, Principles of
Mahomedan Law by Mulla and referred to the following judgments
passed by the Hon’ble Supreme Court: –
(i) AIR 1960 J&K 57 (Khazir Bhat vs. Ahmed Dar)
Paragraphs- 8, 11, 12 and 14.
(ii) 1915 SCC OnLine Mad 401 (Moideensa Rowthen vs.
Mahammad Kasim Rowthen) Paragraphs- 1, 2 and
3.
(iii) 1922 SCC OnLine Sind JC 43 (Vazir @ Dino &
Another vs. Dwarkamal & Ors.) Paragraph 2, 5, 8, 9,
10, 12, 13 and 15.
22. On the point of oral gift (hiba) as claimed by the contesting
defendants, learned counsel for the contesting respondents (the
plaintiffs) referred to the written statement filed by Defendant No.1
and submitted that the written statement was verified and affidavited
by one of his sons namely, Kalimullah disclosing his age as 44 years
as on 12.03.2015, meaning thereby, in the year 1967, he was not even
born. The learned counsel submitted that there is no material on
record to show the reason as to why the Defendant No.1 himself did
not verify the written statement or file any affidavit. He further
submitted that the written statement was accompanied with an
affidavit dated 12.03.2015 again by Kalimullah which also does not
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disclose that the statements in the written statement filed on behalf of
Defendant No.1 were at the instance of Defendant No.1 or at the
instructions of Defendant No.1 or as attorney of Defendant No.1.
23. The learned counsel submitted that during the pendency of the
suit, the Defendant No.1 expired after the written statement was filed
and the written statement of substituted defendants, who were the
legal heirs of the original Principal Defendant No.1, was also filed
under the verification and affidavit of Kalimullah who was one of the
sons of original Principal Defendant No.1. He submitted that
Kalimullah at any stage did not depose before the Court.
24. The learned counsel further submitted that so far as initial
written statement of Principal Defendant No.1 is concerned, it has
only been mentioned in the written statement that in the year 1967, the
property was orally gifted to the principal Defendant No.1 in presence
of witnesses, but in spite of being the alleged donee, neither he has
mentioned the names of the witnesses, nor the date , time and place
of alleged oral gift (hiba) have been mentioned. The learned counsel
submitted that the Principal Defendant No.1 was the best person to
disclose the foundational details in connection with Hiba (oral gift).
He has further submitted that even in the written statement filed by the
legal heirs, no such detail of Hiba (oral gift) was mentioned.
25. The learned counsel further referred to the evidences led on
behalf of the contesting defendants and submitted that the Defendant
No.4 had given the name of 3 witnesses for the first time and one of
those witnesses was his father, but there is no reason as to why any of
the witnesses including his father were not examined before the Court.
The learned counsel also submitted that the witnesses DW-1 to DW-3
did not even name that DW-4 was present at the time of Hiba. The
learned counsel submitted that the evidence of DW-4 reveals that his
father was alive, inasmuch as, in the evidence on affidavit, he has not
mentioned the name of his father as late, but all the other witnesses
have specifically stated about the demise of their father. The learned
counsel also submitted that the appellants have themselves during the
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course of argument stated that all the three ingredients of Hiba i.e.,
declaration, acceptance and possession have to be done
simultaneously, but in the entire written statement, the presence of
Principal Defendant No.1 at the time of so-called Hiba has not been
mentioned.
26. Learned counsel for the respondents further submitted that the
Principal Defendant No.1 and his legal heirs and successors who were
claiming Hiba have miserably failed to prove the factum of Hiba. The
learned counsel referred to the evidence of D.W. 1 and submitted that
in the year 1967 as per his deposition, he was 7 to 8 years of age. The
learned counsel in particular referred to Paragraphs- 34, 35, 36, 43,
44, 45 and 46 of his deposition.
27. With respect to D.W. 2, the learned counsel for the respondents
referred to his evidence in Paragraphs- 3, 10, 12 and 19. He submitted
that in his evidence D.W. 2 has stated that he was 14 to 15 years of
age at the relevant time. With respect to D.W. 3, the learned counsel
for the respondents referred to Paragraphs 10 and 38 of his evidence
and with respect to D.W. 4, he referred to Paragraphs- 4, 14, 16, 17,
24, 27 and 28 of his evidence. He further submitted that D.W. 4 was
also 16 years of age in the year 1967.
28. Learned counsel for the respondents further submitted that the
presence of D.W. 4 was never disclosed at any point of time either in
the written statement or in the evidence of D.W.- 1 to 3 and his
positive evidence is that he had deposed at the instance of the
Principal Defendant No.1 regarding the factum of Hiba.
29. The learned counsel for the respondents again referred to
extract from the book Principle of Mahomedan Law (23rd Edition)
(Page 184 and 185) by Mulla at running Page 237 of their compilation
to submit that Hiba is required to be proved by unequivocal and
clinching evidence and further submitted that such positive evidence
in connection with Hiba is missing. The learned counsel submitted
that there are three elements of Hiba i.e. declaration, acceptance and
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possession and the first limb itself has not been proved. He submitted
that each of the elements is required to be proved independently.
30. Learned counsel for the respondents has referred to the
following judgments:
(i) 2009 SCC OnLine AP 771 [Katwal Abdul Hakeem Sab
(died) by LRs. Vs. Nasyam Sufiya and others]
(Paragraphs 13 and 14)
(ii) 1984 SCC OnLine AP 51 (Ratan Lal Bora and others
Vs. Mohd. Nabiuddin) (Paragraphs 3 and 4)
(iii) 1966 SCC OnLine SC 205 (Maqbool Alam Khan Vs.
Mst. Khodaija and others) (Paragraph 4)
(iv) 2016 SCC OnLine Hyd 123 (Hifazath Hussain and
others Vs. Sadiq Hussain @ Mushraf) (paragraphs 16
and 22)
(v) Judgment passed by High Court of Madras (Madurai
Bench) in A.S. (MD). No. 24 of 2010 (Noorjehan Beevi
and others Vs. Tajudeen and others) decided on
01.06.2023 (Paragraphs 20 and 24)
31. Learned counsel for the respondents further submitted that
considering the totality of the evidences placed on record, the
declaration in connection with the Hiba (oral gift) has not been
proved. The learned counsel also referred to Exhibits- 4 and 5 to
submit that even as late as in the year 1972 to 1975, which is much
after the alleged Hiba of 1967, it was Sk. Abdul Ghani who was
contesting the cases before the authorities which has been admitted by
D.W. 3 also and therefore, Sk. Abdul Ghani never divested himself
from the ownership and possession of the property.
32. Learned counsel for the respondents also submitted that the
survey or mutation showing possession of the Principal Defendant
No.1 does not by themselves prove Hiba and they are not linked to the
Hiba, inasmuch as, there is no evidence to show that in the survey, the
name of Principal Defendant No.1 was entered pursuant to Hiba.
Rejoinder arguments on behalf of the appellants
33. In response, the learned Senior Counsel for the appellants
submitted that the facts and circumstances of the case clearly prove
Hiba, although the names of the witnesses to Hiba were disclosed by
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the evidence of the defendants for the first time during their
deposition, but they were not examined for the reasons not available
in the records.
34. Learned Senior counsel for the appellants further submitted that
the entry in records-of-rights which was finally published in the name
of Principal Defendant No.1 has attained finality and therefore, there
cannot be any doubt that Principal Defendant No.1 was the exclusive
owner of the suit property and was also in possession thereof. The
learned counsel for the appellants submitted that at any point of time,
the plaintiffs did not raise any objection with regard to entry in the
records-of-rights and such omission to challenge the entry made in the
record of rights was essentially because of the reason that the property
was subject matter of Hiba.
The points for determination.
35. After hearing the learned counsel appearing for the parties and
the nature of contest raised at this 1st appellate stage, this court finds
that essentially the following points of determination arise in the
present case:
(i) Whether the suit is barred by limitation?
(ii) Whether principal defendants/appellants have been able to
establish and prove their claim of Hiba (oral gift) of the
suit property purportedly made by Sk. Abdul Ghani to the
original Principal Defendant No.1 namely, Wali Alam?
(iii) Whether there is unity of title and possession between the
plaintiffs and defendants with regard to the suit property
described in Schedule-B of the plaint?
(iv) Whether the suit was barred under the provision of
Mohammadan Law in view of the facts that Sk. Abdul
Ghani had other properties at Bhojpur and that the suit was
for partial partition?
(v) Whether the learned trial court has committed any
26
2025:JHHC:23996illegality while holding that the plaintiffs are entitled to get
6/12th i.e. ½ share of the suit property?
Findings of this Court
36. After hearing the learned counsel appearing on behalf of the
parties and going through the records of the case, this Court finds that
in course of trial, the plaintiffs examined altogether 3 witnesses in
support of their case. PW-1 is Md. Mahfooz Alam who is Plaintiff
No.1(a) and eldest son of original Plaintiff No.1, PW-2 is Sakil Ahmad
who is Plaintiff No.2(i) and son of original Plaintiff No.2 and PW-3 is
Md. Khalid Ajaj Hasan who is the Proforma Defendant No.8(i) in the
suit and the son of Zaibun Nisa (original Defendant No.8).
37. PW-1 is Plaintiff No.1(a) and the eldest son of original Plaintiff
No.1. He stated that Sk. Abdul Ghani was the common ancestor of the
plaintiffs and the defendants and he had taken electricity connection in
his name under Service Consumer No.479 in the suit premises and
was paying the bills. He had also contested Case No.2223/72-73 under
Section 83 of CNT Act before the court of the Assistant Settlement
Officer, Jamshedpur with respect to the suit property, which was
rejected vide order dated 22.08.1973 and thereafter, he had contested
appeal under Section 89 of CNT Act before the Charge Officer,
Singhbhum Settlement at Jamshedpur vide Case No.333/1973-74,
which was rejected vide order dated 11.08.1975. He further stated that
Sk. Abdul Ghani and his wife expired leaving behind 4 sons namely,
Mahmood Alam (since dead), Moid Alam (now dead), Wali Alam
(Principal Defendant No.1-now dead) and Zaffar Alam (since dead)
and 5 daughters namely, Noorjahan Khatoon (Defendant No.2),
Karima Khatoon ((Defendant No.3) (now dead), Zaibun Nisa
(Defendant No.8) (now dead), Safia Khatoon (since dead) and Razia
Khatoon (since dead). Safia Khatoon had predeceased Sk. Abdul
Ghani.
He stated that after death of Sk. Abdul Ghani, his 4 sons and 4
daughters jointly inherited, acquired and possessed all movable and
immovable property including the suit property and suit premises and
27
2025:JHHC:23996
presently, the suit property is in joint possession of the plaintiffs and
defendants.
He further stated that as Sk. Abdul Ghani and his 3 sons were living in
their native place at Bhojpur, District- Nalanda, Bihar and the
Principal Defendant No.1 Wali Alam (now dead) was living in
Jamshedpur; Sk. Abdul Ghani after constructing the house over the
suit land had allowed the Principal Defendant No.1 Wali Alam (now
dead) to occupy & live in the suit premises and to look after the suit
premises. After the death of Sk. Abdul Ghani, the Suit premises
detailed in Schedule-B of the plaint devolved upon his above sons and
daughters and the plaintiffs are in joint possession of the suit premises
and having their specific share over the suit premises where the
plaintiffs are having the joint 6/12 i.e. 1/2 Share and portion over the
suit premise which has not been partitioned till date by metes and
bounds and all are still in joint possession over the suit premises.
When it became inconvenient to the plaintiffs to keep the suit
premises in joint, then in the year 2013 the plaintiffs asked the
Principal Defendant No.1 Wali Alam (now dead) and other defendants
to partition the suit premises as per Muslim law and demarcate their
respective shares, but the Principal Defendant No.1 Wali Alam (now
dead) had taken time on some and other pretext. In the month of May,
2014, when the plaintiffs learnt that Principal defendants No.1 had
entered into a Development Agreement with respect to entire suit land
with some Developer for construction work over the suit land, the
plaintiffs enquired the matter and were surprised to know that the
Principal Defendants No.1 had fraudulently and mischievously, by
using some forged and Manufactured documents, has got the suit land
recorded in his name in the record of rights of the Government of
Jharkhand and thereafter, got the entire suit land mutated in his name,
which was illegal. Thereafter, the plaintiffs again approached the
original Principal Defendant No.1 for partition of the suit land as per
Muslim Law and Shariyat, but on 25.08.2014, the original Principal
Defendant No.1 refused to Partition the suit land claiming himself as
28
2025:JHHC:23996
the absolute and exclusive owner of the suit land, which was wrong as
because the suit land is the joint property of the plaintiffs and
defendants and all the documents created by the Principal Defendant
No.1 are false, fabricated and manufactured. Therefore, it became
necessary for the plaintiffs to file the suit for the declaration of their
title over the suit land as well as for the partition of the suit land. He
further stated that the Principal Defendant No. 1 on the basis of false
and manufactured documents, had entered into Development
Agreement for the development and construction of Multi-storeyed
building over entire land and hence, it has become necessary to
restrain the Principal Defendant No.1 for doing construction work
over the suit land by way of permanent injunction. He further stated
that as the suit land was purchased by the ancestor of the plaintiffs and
defendants, which was still in joint possession of the plaintiffs and
defendants, a prima-facia case was made out in favour of the plaintiffs
and balance of convenience is also in favour of the plaintiffs and if the
Principal Defendant No.1 is not restrained from doing construction
work over the suit land, the plaintiffs will suffer from irreparable
losses and damages. He further stated that the cause of action of the
suit arose against the Principal Defendant No.1 on and from
25.08.2014, when the Principal Defendant No.1 had refused to
partition and to demarcate the share and portion of the plaintiffs which
is still continuing within the Jurisdiction of the learned trial court. He
further stated that the plaintiffs have filed original documents with
respect to suit land vide list of documents dated 09.09.2021 which are
public documents and it was submitted that they were required to be
exhibited in the suit as under:
(i) Original Receipt No. A-878063 issued by Bihar State
Electricity Board under Consumer No.479 in the name of Md.
Abdul Ghani which is in one sheet and marked as Exhibit -1.
(ii) Original Receipt No. A-875644 dated 21.08.1963 issued in
the name of Md. Abdul Ghani under Consumer No.479 which
is one sheet and marked Exhibit-1/1.
(iii) Original Death Certificate No.667116 under Registration
No.07 dated 07.04.2015 issued in the name of Sk. Abdul
Ghani by Registrar Birth & Death, Pakur, Bihar, which is one
29
2025:JHHC:23996sheet and marked as Exhibit-2 (showing date of death as
20.13.1981).
(iv) Original Certified copy of Sale Deed No. 3877 dated
04.11.1952 in Bangla version which is in 5 Sheets and
Marked as Exhibit-3.
(v) Original Certified copy of the order dated 11.08.1975 passed
in Case No.333/1973-74 by the court of the Charge Officer,
Singhbhum Settlement at Jamshedpur which is one sheet and
Marked Exhibit-4 in which Abdul Ghani was the party and
not defendant no.1.
(vi) Original Certified copy of the order dated 22.08.1973 passed
in Case No.2223/72-73 under Section 83 C.N.T. Act by the
court of Asst. Settlement Officer, Jamshedpur, which is in
one sheet and marked as Exhibit-5 in which also Abdul Ghani
was the party and not defendant no.1.
He further stated that the suit property is still in joint possession of the
plaintiffs and the defendants and the plaintiffs have got all rights, title,
interest and joint possession over the suit property, which has not been
partitioned till date by metes and bounds and the plaintiffs are entitled
for the decree as claimed in their plaint.
During his cross-examination, PW-1 admitted that Mahmood Alam
died in the month of November 2016. Abdul Ghani was a resident of
Village Bhojpur, District- Nalanda, where his agricultural land and
house were situated and at the time of his death, about 12 -13 Bighas
land were left. Earlier he had about 70-80 Bigha land, but his sons
had sold some land. He admitted that in the year of 1964 survey,
Khatian No.810, 811, 817 818 and 829 were prepared and that the
boundary of land mentioned at the time of filing of the case still exists.
He has also stated that there was a big house in the village, but he
cannot say the area of the said house. Abdul Ghani used to do farming
in the village land. He further admitted that the details of property of
Abdul Ghani situated in the village have not been mentioned in this
case and the property of Abdul Ghani has not been partitioned. He has
stated that there was a house on the disputed land, but at that time,
whether any plan was applied for/granted or not, he could not say. He
further admitted that the land in the village was partitioned in which
the sons had 8 shares, whereas the daughters had 4 shares. At present,
30
2025:JHHC:23996
disputed lands have new Khata No.763 and Plot No.2913 and Khata
No.763 consisting Plot Nos. 810, 811, 817, 818 and 829 is in the name
of Abdul Ghani. He further admitted that Wali Alam had made
negotiation with developer in the year 2014 and after filing the case,
they came to know about the developer and the disputed property is
Plot No.2913, Khata No.763. When the survey settlement was started
in 1972, they were at their village and after the publication of Khatian
Abdul Ghani died. They had no knowledge that the disputed land
was recorded in the name of Wali Alam and therefore, they had not
made objection and when they came to know in 2014, his father and
others filed the title suit for title declaration. At the time of filing the
suit, there was a one-storied house on disputed land. He further
admitted that the development agreement is of the year 2014 and they
had sought relief for stopping construction by the contesting
defendant, but the said application was dismissed by the Court. He
also asserted that after demolishing the old house, flats have been
constructed.
38. PW-2 is Plaintiff No.2(i) and son of original Plaintiff No.2. He
also filed his examination-in-chief on affidavit stating that he is one of
the plaintiffs in the suit and he fully knows all the facts of the case. He
further stated that the plaintiffs have filed the case for partition of the
Schedule-B property in which the plaintiffs are entitled for 6/12 i.e. ½
share. He knows all the plaintiffs and the defendants and the suit
property is situated at Road No.9, Holding No.26, Jawahar Nagar,
Thana- Mango, Jamshedpur, Mauza- Mango, Ward No.9, new Khata
No.763, new Plot No.2913 measuring 30 kathas, Pargana- Dalbhum,
Jamshedpur, Singhbhum. He further stated that his grandfather Abdul
Ghani had purchased the Schedule-B property alongwith his three
friends vide registered Sale Deed No.3877 dated 04.11.1952 and
thereafter, they partitioned the same vide partition deed of the year
1953 and Abdul Ghani got the suit property as his share. Thereafter,
he constructed boundary and a house on the eastern portion and
possessed the same and also got electricity connection in his name.
31
2025:JHHC:23996
Abdul Ghani had filed Case No.2223/72-73 under Section 83 of the
CNT Act before the Settlement Officer, Jamshedpur which was
dismissed vide order dated 22.08.1973 and thereafter, he had filed
Appeal No.333/1973-74 under Section 89 of CNT Act in the court of
the Charge Officer, Singhbhum Settlement, Jamshedpur, which was
dismissed vide order dated 11.08.1975 (exhibit-4) .
He further stated that Abdul Ghani during his lifetime had sent his one
son namely, Wali Alam, Defendant No.1 to Jamshedpur for business
and for constructing house and to look after the suit property. Abdul
Ghani had four sons and five daughters, out of which one daughter
Safia Khatoon had predeceased him. After death of Abdul Ghani, his
all 4 sons and 3 daughters have died and only one daughter namely,
Noor Jahan Khatoon is alive. Abdul Ghani died in the year 1981 and
his wife namely, Bibi Fatima died in the year 1997 and thereafter,
their entire property including the Schedule-B property and house
devolved into his 4 sons and 4 daughters jointly and after the death of
his sons and daughters, the plaintiffs and defendants have rights and
share jointly and joint possession over the property. After death of
Abdul Ghani, his sons and daughters during their lifetime had
repeatedly asked for partition of the entire property of Abdul Ghani,
but the Defendant No.1 deferred the partition. Abdul Ghani during his
lifetime had several times tried to partition the Schedule-B land and
house between his sons and daughters, but the Defendant No.1 had
repeatedly obstructed to the partition and after 1974, Abdul Ghani
stopped coming to Jamshedpur and used to live in his village itself.
After death of Abdul Ghani, his father Moid Alam and his elder
brother Mahmood Alam had repeatedly asked the Defendant No.1 to
partition the entire property of Abdul Ghani including the Schedule-B
property at Jamshedpur between all the brothers and sisters, but he
deferred every time. In 2013, Mahmood Alam had asked the
Defendant No.1 to partition the Schedule-B property at Jamshedpur of
Abdul Ghani, but he deferred the partition. In 2014, Mahmood Alam
came to know that the Defendant No.1 alongwith his sons has
32
2025:JHHC:23996
executed a registered agreement in favour of some builder for
construction of a multi-storied building after demolition of the old
house, he got issued all the documents of the Schedule-B land from
the concerned office and then he and his other alive brothers came to
know that the Defendant No.1 has illegally got the Schedule-B land
recorded in his name. Thereafter, on 25.08.2014, the plaintiffs jointly
demanded the Defendant No.1 to partition the Schedule-B land, but
the Defendant No.1 said that the Schedule-B land is his land and no
other person has right and share in the same and refused to partition
the Schedule-B land. Thereafter, it became necessary for the plaintiffs
to file partition suit in court for their right and share in the Schedule-B
land and accordingly, the suit was filed praying for declaration of
rights, title and joint possession and also for permanent injunction and
the suit is pending in court and therefore, construction of any kind
over the Schedule-B land is fit to be restrained.
He further stated that they are the successors of Late Abdul Ghani and
after his death, the Schedule-B land is in their joint possession and
they are the joints owners and therefore, a prima face case and balance
of convenience lies in their favour and if the original Defendant No.1
and his successors are not restrained from construction over the land,
they shall suffer from irreparable loss and injury. He further stated
that cause of action for the suit arose on 28.05.2014 when the
Defendant No.1 claimed the Schedule-B land as his own and refused
to partition, which still continues. He denied that Abdul Ghani during
his lifetime had orally gifted the Schedule land to his son the
Defendant No.1 in the year 1967 or on any other date in presence of
witnesses. The story of the Defendant No.1 is completely false and
concocted. He also denied that the Defendant No.1 and his successors
are the owners of the Schedule-B land and the other legal heirs have
no right and title on the same. He stated that after death of Abdul
Ghani, all his legal heirs who are alive have their right and all the
legal heirs are in joint possession and no partition has been made till
33
2025:JHHC:23996
date and therefore, their claim is legal and valid and they are entitled
for decree in their favour.
During cross-examination, PW-2 admitted that his date of birth is
01.08.1964 and he had gone to Saudiya in 1998 and returned in
November, 2016 and when he had gone to Saudiya, his father was
living in a rented house. His grandfather was a resident of Nalanda
and his house was situated at Bhojpur which consisted of 08-09
rooms. Abdul Ghani used to do farming and he had about 30-32 bigha
land and at present, there is a house over 03 katha of land and the rest
has been sold. The land and house at Bhojpur have not been
partitioned. His father has sold land of Bhojpur, but he does not know
how much land he had sold. 4-5 bigha land is left at Bhojpur and his
father had sold land at Bhojpur in 1991. He has stated that the
disputed land is recorded under Khata No.763, but he cannot say
when the record of right was prepared. Rent was being paid in the
name of his grandfather, but he cannot say in whose name rent is
being paid at present. He has filed the rent receipt, but it is in whose
name he cannot say. There is a Notified Area Committee in Mango,
holding tax is deducted, but he cannot say in whose name. It is not
deducted in the names of all the heirs of Abdul Ghani. The contesting
defendant had fraudulently obtained the rent receipt, etc. issued in his
favour. He does not know when the mutation occurred. Since no one
was present here, so no objection was filed. In 2013-2014, they came
to know that contesting defendant had fraudulently obtained the
disputed land in his favour, but they have not filed any case for
cancellation of Khatian and Mutation. He is residing in the house of
Khata No.111 which is in the name of his mother. In 1985, his father
had purchased the aforesaid land from Anil Ghosh in the name of his
mother. In 1989, they have sold the land of Bhojpur, but he cannot say
how much land was sold by them and how much land of Bhojpur was
sold by his uncle Mahmood Alam and Zafar Alam.
39. PW-3 filed his examination-in-chief on affidavit stating that he
was the Proforma Defendant No.8(i) in the suit and he is one of the
34
2025:JHHC:23996
sons of Zaibun Nisa and he knows both the parties and also the suit
property situated in Road No.9, Jawahar Nagar, Holding No.26
measuring 30 kathas, Thana- Mango, Jamshedpur, East Singhbhum.
He further stated that Abdul Ghani alongwith his three friends had
purchased the suit property by a registered sale deed in the year 1952
and he had received the suit property in his share. After constructing
boundary wall and house, he had given the suit property to his son
namely, Wali Alam (original Defendant No.1) for residence and
looking after. Abdul Ghani was residing at Village- Bhojpur, but he
used to visit Jamshedpur and when he had quarrel with Wali Alam, he
used to come to him for residing and for retuning to his village. Abdul
Ghani died in the year 1981 and after his death, his entire movable
and immovable properties which include the Schedule-B land and
property devolved upon his 4 sons and 5 daughters and they are its
joint owners with their joint possession. His 4 sons and 4 daughters
have died and at present, one daughter is alive and all the legal heirs
of the deceased persons are parties in the suit. After death of Abdul
Ghani, Mahmood Alam had asked the original Defendant No.1 to
partition the entire property of Abdul Ghani in 2013, but the
Defendant No.1 had deferred the partition. In 2014, when Mahmood
Alam came to know that the Defendant No.1 has entered into an
agreement with a builder for construction of building over the suit
property, Mahmood Alam and Hasan Rizwi had asked the Defendant
No.1 to partition the suit property on 25.08.2014, but he had refused
to partition and claimed the same as his own property. After getting
the documents, Mahmood Alam and Moid Alam came to know that
Wali Alam has illegally got recorded the suit property in his name and
thereafter, the suit was filed. He further stated that the Schedule-B
property is the joint property of the plaintiffs and the defendants and
they are the joint owners of the suit property, but the Defendant has
illegally recorded his name to grab the title and share of the other
sharers. He further claimed that the plaintiffs are jointly entitled for
35
2025:JHHC:23996
6/12 i.e. ½ of the Schedule-B land and property as per Mohammadan
Law and the claim of the plaintiffs are true and valid.
During his cross-examination, PW-3 admitted that his father died in
1963, but he could not tell the date and month. He has 3 brothers and
four sisters. The names of the brothers are Subdul Hassan, Md. Khalid
Azaj (himself) and Md. Hussan Ekbal. His mother was one of the
defendants in this case and she had filed her written statement. He
does not remember how many defendants are there in this case, but he
is Defendant No.8(i) and he has not filed his written statement. The
defendant No.3 is his younger brother. He could not say the Khata and
plot number of the disputed land, its holding number is 26 which is in
the name of his maternal grandfather. Abdul Ghani was his maternal
grandfather, but he cannot say when his grandfather had purchased
the land. His maternal grandfather was permanent resident at Bhojpur,
District – Nalanda and he used to do farming, but cannot not say how
much lands were being used for cultivation. They have share in land
of Bhojpur also, but they have not got any share in the land at
Bhojpur. At present there is no house as there is little land left. He
does not have detailed knowledge about the house and land of
Bhojpur. He had gone to Bhojpur in 1967. His three maternal uncles
were residing at Bhojpur and they were doing cultivation alongwith
their father. At Mango, there was a cloth shop of Wali Alam and at
present his sons are running the cloth shop. He had seen Abdul Ghani
last time in 1981. Abul Ghani died at Village. Abdul Ghani’s elder
son was Mahmood Alam and he had seen him last time in 2012 –
2013. His maternal uncle has not disclosed about the partition of the
lands at Bhojpur. He further admitted that Abdul Ghani had not sent
any notice regarding the property of Jamshedpur. He further admitted
that he has no knowledge that any builder is constructing the flat at
the disputed land. He claimed that Wali Alam fraudulently obtained
the disputed land in his name and at present, house has been built, but
he cannot say how many flats are built. He further admitted that he has
36
2025:JHHC:23996
purchased flat from the builder. He also stated that Wali Alam is not
the owner of the disputed land.
40. The plaintiffs exhibited the following documents as
documentary evidence:
Exhibit-1, 1/1Three electricity bills (with objection),
Exhibit-2 Death certificate of Sk. Abdul Ghani,
Exhibit-3 Certified copy of Sale Deed No.3877 dated 04.11.1952
Exhibit-4 Certified copy of order dated 11.08.1975, passed by the
Charge Officer Singhbhum Settlement, Jamshedpur in Case
No.333/1973 -74, u/s 89 of the C.N.T. Act.
Exhibit-5 Certified copy of order dated 22.08.1973, passed by the
Asstt. Settlement Officer, Jamshedpur in Case No.2223/72-
73 u/s 83 of C. N. T. Act,
41. The principal defendants examined four witnesses. DW-1 is
Sanaullah who is Principal Defendant No.1(viii) and son of the
original Principal Defendant No.1, DW-2 is Sohail Ahmad Sufi, DW-
3 is Waliullah who is Principal Defendant No.1(i) and son of the
original Principal Defendant No.1 and DW-4 is Naushad Ali.
42. DW-1 is Principal Defendant No.1(viii) and son of the original
Principal Defendant No.1 Wali Alam. He filed his examination-in-
chief on affidavit stating that he is one of the defendants in the suit
and he knows the facts of the case. He further stated that the plaintiffs
have filed the suit with all sorts of false and incorrect statements and
allegations and the plaintiffs are not entitled to the reliefs claimed in
the suit. He stated that the plaintiffs have not filed any comparative
map and therefore, the suit land cannot be ascertained. He stated that
Safia Khatoon had pre-deceased her father Abdul Ghani and hence,
she has been abolished from her right of inheritance with respect to
the estate or properties of her father and therefore, the heirs of Safia
Khatoon are not entitled for any share in the properties of Abdul
Ghani. Safia Khatoon died leaving behind 06 sons namely, Javed
Akhtar, Parvez Akhtar, Firoze Akhtar, Rashid Akhtar, Sahid Akhtar
and Sajid Akhtar and a daughter namely, Sama Praveen as her legal
heirs and successors and they are necessary parties in the suit. Razia
Khatoon died leaving behind a daughter namely, Razia Saheen. The
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land recorded under C.S. Khata No.4, C.S. Plot No.5 measuring 6
bighas, Mouza- mango were jointly purchased by Syed Mohammad
Ekram Ahmad, Manizural Haque, Sk. Abdul Bari and Abdul Ghani by
registered Sale Deed No.3877 dated 04.11.1952 from Naru Ho and
they came in peaceful possession of the same. They partitioned the
same in the year 1963 amongst themselves equally and accordingly,
Abdul Ghani got 1½ bighas of land in his share and became its owner.
When Abdul Ghani was in possession, survey operation commenced
and the survey was published in the year 1964 and his land came to be
recorded as Plot Nos. 810, 811, 817 and 818 in his name. When Abdul
Ghani was in possession of the Plot Nos. 810, 811, 817 and 818, he
orally gifted the same in the year 1967 in favour of his father in
presence of Abdul Matin, Tahir Hussain, Gulzar Ali and other
respectable persons of the community. The declaration and acceptance
of the gift was accompanied by delivery of possession of the land by
Abdul Ghani to Wali Alam. Thereafter, his father came in exclusive
possession of the Plot Nos. 810, 811, 817 and 818 measuring 1½
bigha, Mouza- Mango as the absolute owner thereof and he also
constructed boundary wall and house in a portion of the land. He
further stated that while his father was in possession of the land, the
survey settlement operation commenced in the year 1972 which was
published in the year 1979 and the land and the structure standing
thereon was recorded under Present Survey Khata No.763, Present
Survey plot No.2913 a, b, c, d and e, Ward No.9, MNAC in the name
of his father. His father was in peaceful possession of the suit property
as absolute owner and got his name mutated in the office of the
superior landlord and has been paying rent, municipal charges and
other charges in his name to the concerned authorities. After death of
his father, his legal heirs and successors became the absolute owner in
possession of the suit properties. He claimed that since the aforesaid
transfer was made in favour of his father, the plaintiffs and other legal
heirs and successors of Abdul Ghani had no manner of right, title,
interest or possession over the suit property or any portion thereof at
38
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any point of time. He denied that after death of Sk. Abdul Ghani, the
plaintiffs and defendants jointly inherited, acquired and possessed the
suit property and they have been in joint peaceful possession over the
same and have been jointly enjoying their all acts of ownership over
their respective undivided shares and portions with their all legal
rights, title, interest and possession over the same. He further stated
that Sk. Abdul Ghani died in the year 1981 and at the time of his
death, he did not have any right, title or interest over the suit property,
as in the year 1967, Sk. Abdul Ghani had orally gifted the suit land to
his father and since then, his father came in peaceful possession of the
suit land as absolute owner thereof and constructed house in a portion
of the suit land and living there with them. Neither the plaintiffs, nor
the other legal heirs of Late Sk. Abdul Ghani ever raised any
objection before the survey authority or in the Mango Notified Area
Committee or other authorizes claiming any manner of interest over
the suit land and since Sk. Abdul Ghani had gifted the suit property to
his father, he also did not challenge the record of right prepared in the
name of his father, which was finally published much before his
death. He further stated that his father had perfected his right, title,
interest and possession over the suit property and after his death, they
being his legal heirs and successors became the absolute owners in
possession of the suit property. The plaintiffs or the other legal heirs
and successors of Abdul Ghani had/have no manner of right, title,
interest or possession over the suit property or any portion thereof.
The plaintiffs or the Proforma Defendants have no manner of right,
title, interest or possession over the suit property, nor any share in the
suit property, nor they have got any right to claim any share in the suit
property. He further stated that the suit property belongs to them and
they are in exclusive possession of the suit property as absolute
owners thereof. The plaintiffs had/have no right to approach for
partition, nor they ever approached for partition. He stated that they
have already constructed multi-storeyed building over the suit land
after demolishing the structures standing thereon through the builder
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by executing development agreement with the builder. The plaintiffs
have no locus standi to file the suit and their claims are false and
incorrect.
During his cross-examination, DW-1 admitted that he is the grandson
of Abdul Ghani and he was born in 1960. Abdul Ghani had purchased
the disputed land along with his three friends and after partition,
Abdul Ghani had got 1½ Bhighas land. The disputed land is Khata
No.763 and Plot No.2913. He admitted that Abdul Ghani had given
the disputed land to his father and his family to live and Abdul Ghani
lived in village and sometimes came to Jamshedpur. He deposed that
he cannot not say when last time his grandfather had visited to
Jamshedpur. He denied to have any knowledge that Government had
filed a case under Section 83 of CNT Act against his grandfather in
which his grandfather had contested the case. He stated that his
grandfather had never contested a case and it is not true that his
grandfather had contested Case No.333/1973-74. Electricity
connection of land and house was in the name of Abdul Ghani till
1973 and they used to pay the charge. He further admitted that Safia
Khatoon had died before his grandfather. He also admitted that when
the disputed land was orally gifted by Abdul Ghani, he was about 07-
8 years old and his father had come to Jamshedpur in 1950. He denied
that his father had taken Rs.5,000/- from Abdul Ghani for business.
He further admitted that Abdul Ghani had four sons and five
daughters and all are dead. The names of the sons are Mahmood
Alam, Wali Alam, Waheed Alam, Zafar Alam and the names of the
daughters are Jaibun Nisha, Noorjahan Khatun, Safia Khatoon, Razia
Khatoon and he does not remember the name of the rest. He admitted
that all the above-named persons are the heirs of Abdul Ghani and the
disputed land has not been partitioned yet amongst them. He further
admitted that his father Wali Alam was the Ward Commissioner of
Mango Notified Area Committee in the year 1972. He denied that at
that time his father Wali Alam had got the disputed land registered in
his name in the survey settlement of the year 1972 by committing
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fraud and cheating with Abdul Ghani, which is illegal. He also denied
that on the basis of the settlement of that time, his father Wali Alam
had got the annual rent of the disputed land illegally deducted in his
name. He denied that his father Wali Alam had come to Jamshedpur
with Rs.5,000/- from Abdul Ghani and had started business with the
same money and taken many properties in his name and in the name
of his sons and in all of which the plaintiffs and other defendants have
a share. He further denied that the plaintiffs have half share in the
disputed land.
43. DW-2 Sohail Ahmad Sufi filed his examination-in-chief on
affidavit stating that he knows both the parties and both parties are
related to him. The suit land is recorded under the Present Survey plot
No.2913 a, b, c, d and e recorded under Present Survey Khata No.763
measuring 1.5 Bigha, Mouza- Mango, Ward No.09, M.N.A.C.,
Holding No.26, Road No.09, Jawahar Nagar, Mango, P.S. & P.O.-
Mango, Town- Jamshedpur which is recorded in the name of Wali
Alam son of Sk. Abdul Ghani, where multi-storeyed building has been
constructed and they are in possession of the same as owners thereof.
In the year 1967, Sk. Abdul Ghani had orally gifted the aforesaid land
to Wali Alam in presence of witnesses and delivered possession of the
same to Wali Alam and after the same oral gift, Wali Alam came in
peaceful possession of the suit property as absolute owner thereof and
as such the land has been recorded in his name in the present Survey
record of right under Khata No.763, Plot No.2913 a, b, c, d and e. The
said land has been mutated in the name of Wali Alam and he had been
paying rent till his death and after his death, his sons are paying rent
of the aforesaid lands. He further stated that the aforesaid land has
been fenced with boundary wall and the multi-storeyed building has
been constructed over the land and the sons of Wali Alam namely,
Waliullah, Sanahullah, Amanulla and Kalimullah are in possession of
the aforesaid lands. He stated that the plaintiffs or the other legal heirs
and successors of Abdul Ghani have or had no manner of right, title,
interest or possession over the suit property or any portion thereof
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and the suit property belongs to the defendants namely, Waliullah,
Sanahullah, Amanulla and Kalimullah and they have absolute right,
title, interest and possession over the same.
During cross-examination, DW-2 admitted that he is residing at
Dhanbad since 1958 and he has been visiting Jamshedpur since 1975.
He knows both the parties because both parties are his relatives. The
names of the plaintiffs are Mahmood Alam, Sakil Ahmad, Hasan
Riziwi, etc. and names of the defendants are Waliullah, Sanaullah,
Amanullah and Kalimullah and he does not know the names of the
rest. He further admitted that defendant Waliullah is his step-
maternal brother and recently, he has become Samdhi of Waliullah.
The marriage of his daughter has been solemnized with the son of
Waliullah. He further admitted that the khata number, plot number
and Ward number of the disputed land are 763, 2913 and 09, but he
cannot say the boundary of the land. He further admitted that the
disputed land was purchased by Abdul Ghani. The total area of
purchased land is 06 Bighas and the area of the disputed land is 1½
bigha. Abdul Ghani died in 1981. Abdul Ghani had four sons and five
daughters, all sons are not alive and he has no knowledge about the
daughters. After the death of Abdul Ghani, there has been no partition
of the disputed land. Oral gift was made in 1967 and at that time, he
was aged about 14-15 years. He denied that he has no knowledge
about the oral gift.
44. DW-3 Waliullah is Principal Defendant No.1(i) and another son
of the original Principal Defendant No.1 Wali Alam and brother of
Principal Defendant No.1(viii). He filed his examination-in-chief on
affidavit stating the same facts in verbatim as stated by his brother
DW-1 i.e. Principal Defendant No.1(viii). During cross-examination,
DW-3 admitted that he studied up to Intermediate and he is the
grandson of Abdul Ghani and elder son of Wali Alam. He further
admitted that Abdul Ghani had four sons and four daughters and all
sons and daughters of Abdul Ghani have died and, in this case, all the
legal heirs and successors have been made parties. The suit was filed
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by the Mahmood Alam, Jafar Alam and Moid Alam, but all are dead
and their legal heirs and successors have been made parties. He
admitted that Amina Khatoon has not been made party and Fatiya
Khatoon who was the daughter of Abdul Ghani has died. Rabiya
Khatoon had died before death of Abdul Ghani. He denied that Rabiya
Khatoon had died before death of Abdul Ghani and therefore, her
legal heirs and successors have no rights. He further admitted that the
disputed land previously belonged to Abdul Ghani and now it belongs
to Wali Alam. He denied that after purchasing the disputed land,
Abdul Ghani had constructed boundary wall and house and had given
to his son Wali Alam for residing. He admitted that the disputed
land’s new Khata number is 763 and new Plot number is 2913. He
denied that till 1973, electricity connection and electricity bill was in
the name of Abdul Ghani. He admitted that in the year of 1972-73, a
case under the CNT Act was filed against Abdul Ghani which was
contested by him and thereafter, Case No.333/74 under Section 89 of
C.N.T. Act was filed against him. He denied that Abdul Ghani did not
have good relation with his son and whenever he visited Jamshedpur,
he did not stay at the house of his son, rather he used to stay in the
residence of his daughter. He denied that in the year 1972, his father
Wali Alam had tried to register the disputed land in his favour, but he
did not succeed. He also denied that in the year 1972 at the time of
survey settlement, his father had fraudulently entered his name and
had obtained Mutation, which is illegal. He admitted that the
properties of Abdul Ghani have not been partitioned. He denied that
Abdul Ghani had not made oral gift and the statements made in the
written statement are false. He denied that the plaintiffs have half
share in the disputed land.
45. DW-4 Naushad Ali filed his examination-in-chief on affidavit
stating that he knows both the parties and also the disputed land. He
further stated that Abdul Ghani had orally gifted the disputed land to
Wali Alam in the year 1967 in presence of his father Gulzar Ali,
Abdul Matin, Tahir Hussain and other respectable persons of the
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community and after the said gift, Wali Alam became the owner of
the disputed land and possessed the same. The house was constructed
on a part of the land and it has been recorded in the name of Wali
Alam under recent survey Khata No.763, recent survey Plot No. 2913
a, b, c, d and e, Ward No.9, Mouza- Mango. The said property has
been recorded in the name of Wali Alam and rent is being paid in his
name. He further stated that he alongwith his family used to reside in
the house as renter and used to pay monthly rent. After death of Wali
Alam, his sons namely, Waliullah, Sanaullah, Amanullah and
Kalimullah became the owner of the disputed property and after
constructing flat over the disputed property, they are in possession
over the same. He further stated that the other heirs of Abdul Ghani
have no right over the disputed property.
During his cross-examination, DW-4 admitted that he has studied in
Madrasa at Jawaharnagar. He was born in 1951 and in the year 1967,
his age was 16 years. He is a permanent resident of Jabalpur, Madhya
Pradesh, but his birth place is Sakchi, Jamshedpur. He further
admitted that his father was residing at Sakchi, Jamshedpur, but he
cannot say how long his father lived in Sakchi. He knows both parties.
He said the names of the defendants as Waliullah, Sanaullah,
Amanullah and Kalimullah and does not know the rest defendants. He
knows the plaintiff Mahfooz Alam. He admitted the disputed land’s
Khata No.763, Plot No.2913 (A, B, C, D, E) and Ward No.09 and
gave description of the boundary of the disputed land as: East – House
of Ahmad Ansari, West – House of Alamgir, South – House of Dr.
Abdul Gani, North – Vacant. He further admitted that he knows
Abdul Ghani since 1967, but Abdul Ghani has died and he lived in
Bhojpur. He has no knowledge that when Abdul Ghani had purchased
the disputed land and he also has no knowledge that in 1953, he had
constructed boundary wall and house on disputed land. He denied that
Abdul Ghani had given the house to his son Wali Alam to reside and
for doing business. He said that he does not remember when Abdul
Ghani had come to Jamshedpur from Bhojpur and he has no
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knowledge that whenever Abdul Ghani came to Jamshedpur from his
village, Wali Alam had pressurized his father for transfer of the
disputed land in his name and due to which quarrel had taken place
between them. He has no knowledge that due to quarrel, Abdul Ghani
has not come to Jamshedpur from 1967 to 1971. He admitted that in
the year 1972, Abdul Ghani had come to Jamshedpur to appear in a
case and then, Wali Alam had tried to transfer the disputed land in his
name, but he did not succeed. He has no knowledge that at the time of
survey settlement in 1972, Wali Alam has fraudulently entered his
name and has obtained mutation. He has no knowledge that in the
year 2014, when Wali Alam made agreement with Developers,
plaintiffs filed the partition suit and on 25.08.2014, Wali Alam
refused to amicable partition and claimed the aforesaid land as his
own and then plaintiffs knew that Wali Alam has illegally recorded
the disputed land in his name. He denied that the disputed land is the
joint property of parties and it has not been partitioned. He admitted
that he was residing in the disputed land as a tenant since 1980 and he
had resided for 30-35 years. He has no knowledge that only Wali
Alam resided in Jamshedpur and rest persons resided in village and
taking the advantage of it, Wali Alam entered his name in the disputed
land. He denied that in 1967, Abdul Ghani had not gifted the disputed
land to Wali Alam and all the heirs of Abdul Ghani have a right over
the disputed land. He further denied that on the request of Waliullah,
he has falsely deposed in the case.
46. The principal defendants exhibited the following documents in
support of their case.
Exhibit-A Certified copy of Sale Deed No. 3917 dated 15.05.1998,
Exhibit-B Certified copy of Sale Deed No. 10198 dated 25.06.1993,
Exhibit-C Certified copy of Sale Deed No. 10199 dated 25.06.1993,
Exhibit-D Certified copy of Sale Deed No. 9687 dated 20.06.1991,
Exhibit-E Certified copy of Sale Deed No. 3916 dated 15.05.1998,
Exhibit-F Certified copy of Khatiyan of Khata No.763,
Exhibit-G Certified copy of order dated 25.01.1989 passed by L.R.D.C.
Dhalbhum at Jamshedpur, in Rent Fixation Case No.
137/1988-89,
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Exhibit-H Certified copy of order dated 30.11.1987, passed by Anchal
Adhikari, Jugsalai-cum-Golmuri, Jamshedpur, in Mutation
Case No. 118/XV/MNAC/87-88,
Exhibit-I, I/1, I/2- Three original rent receipts dated 09.02.1989,
16.09.1994, and 09.06.2014 respectively,
Exhibit-J Certified copy of Judgment passed in JC/2 Case No. 102/ii/67
under section 13(1) of B.R.L.U., Exhibit – K & K/1, was two
original Panchmail Receipts issued by M.N.A.C. Jamshedpur,
Exhibit-L Original form “O” issued by M.N.A.C,
Exhibit-M Original Building Permit No. 85 dated 30.11.2014 with
respect to the suit holding,
Exhibit-N Building plan,
Exhibit-O Mutation Correction Slip in Mutation Case No. 677/R-
27/2019-2020, issued by Anchal Adhikar Jamshedpur,
Exhibit-P Certified copy of order dated 09.05.1985, passed by the
Assistant Settlement Officer, Jamshedpur, in Case No.
267/84-85.
47. The materials on record reveal, interalia, the following admitted
facts on record: –
a. Admittedly, Abdul Ghani alongwith Syed Mohammad
Ekram Ahmad, Manizural Haque and Sk Abdul Bari
jointly purchased the land measuring 06 Bhigha vide
registered Deed of Sale, bearing Deed No.3877, dated
04.11.1952. They mutually partitioned the land by deed
of partition dated 05.01.1953 and in the said partition,
the land area measuring 1½ Bigha described in
Schedule-B came in exclusive share of Abdul Ghani.
b. Admittedly, Sk. Abdul Ghani was common ancestor of
the parties.
c. Admittedly, Abdul Ghani died in the year 1981 and his
wife Fatima Khatoon died in 1997 leaving behind their
four sons and four daughters and one of the daughters
namely, Safia Khatoon had died during the life time of
Sk. Abdul Ghani and one of the sons namely, Zaffar Alam
had expired prior to filing of the suit.
d. The plaintiffs claimed partition of the suit property at
Mango, Jamshedpur and the principal defendant no. 1
claimed that the entire suit property was orally gifted
(hiba) to him by Sk. Abdul Ghani in the year 1967.
e. In the finally published record of right of the present
survey of the year 1979, the property was recorded in
the name of Wali Alam (the original principal defendant
no.1) and thereafter Wali Alam got his name mutated in
the office of Superior landlord in Mutation Case
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No.118/XV/MNAC/ 87-88 with respect to the suit land
and has been paying rent, Municipal Charges and other
charge in his name to the concerned authority.
f. It is not disputed between the parties that the common
ancestor of parties Sk. Abdul Ghani was residing at
Bhojpur and Sk. Abdul Ghani left some landed property
and houses in village Bhojpur and properties at Bhojpur
have not been included in the present suit for partition.
48. Before proceeding to decide the points for determination, it
would be useful to refer to the provisions of Mahomedan Law as
referred to by the learned counsel for the plaintiffs from the book of
Mulla (Principles of Mahomedan Law 23rd Edition) (Chapter V,
Pages 42-43) as follows:-
“S 41. Devolution of inheritance
Subject to the provisions of S 39 and 40, the whole estate of a
deceased Mahomedan if he has died intestate, or so much of it
as has not been disposed of by will, if he has left a will (section
118), devolves on his heirs at the moment of his death, and the
devolution is not suspended by reason merely of debts being
due from the deceased. The heirs succeed to the estate as
tenants-in-common in specific shares.
Unlike Hindu Law, estate of a deceased Mahomedan if he has
died intestate, devolves on his heirs at the moment of his death.
Under the Mahomedan Law, birth right is not recognized. The
right of an heir apparent or presumptive comes into existence
for the first time on the death of the ancestor, and he is not
entitled until then to any interest in the property to which he
would succeed as an heir if he survived the ancestor.
There is no joint tenancy in Mahomedan law and the heirs are
only tenant-in-common. Therefore, an heir can claim partition
in respect of one of the properties held in common without
seeking partition of all the properties.
Possession of a co-sharer or co-heir is presumed to be that of
other co-sharers or co-heirs. To start adverse possession there
must be clear and complete evidence of an ouster.
…….
Limitation of suit by an heir for recovery of his share
As stated above, the heirs succeed to the estate as tenants-in-
common in specific shares. When the heirs continue to hold the
estate as tenants-in-common without dividing it and one of them
subsequently brings a suit for recovery of his share, the period
of limitation for the suit does not run against him from the date
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of the death of the deceased, but from the date of express ouster
or denial of title…”
Point of Determination No. (i)
49. On the point of limitation, it was asserted by the contesting
defendants that the suit for partition was filed after expiry of more
than 30 years from the date of death of the common ancestor Sk.
Abdul Ghani which established that the plaintiffs and proforma
defendants were ousted and the contesting defendants remained in
possession since 1967 as absolute owner thereof to the knowledge of
the plaintiffs and proforma defendants. It was also argued that the
finally published record of rights in the year 1979 had the entry of the
suit property in the name of the original defendant no.1 following
which mutation was also carried out in his name.
50. This court finds that there is consistent and uncontroverted
evidence of the plaintiffs that they had no knowledge that the name of
the original defendant no. 1 was entered in the recorded of rights and
the mutation was also carried out only in his name and this all came to
light when he refused partition and tried to enter into a deal of
development agreement with third parties who entered into the
property and started construction work.
51. In the judgement passed by the Hon’ble Supreme Court
reported in (1971) 1 SCC 597 (Syed Shah Ghulam Ghouse
Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri), it has
been held that Section 18 of the Limitation Act, 1908 provides that
when a person having a right to institute a suit has by means of fraud
been kept from the knowledge of such right or of the title on which it
is founded, the time limited for instituting a suit against the person
guilty of the fraud shall be computed from the time when the fraud
first became known to the person affected thereby. Therefore, if the
plaintiff desires to invoke the aid of Section 18 of the Limitation Act
he must establish that there has been fraud and that by means of such
fraud he has been kept from the knowledge of his right to sue or of the
title whereon it is founded. It has also been held that the cause of
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action for partition of properties is said to be a “perpetually recurring
one”.
52. This Court is of the considered view that the learned trial court,
while considering the point of limitation, has rightly relied upon the
aforesaid quotations from Mulla (Principles of Mahomedan Law 23rd
Edition) (Chapter V, Pages 42-43) dealing with the point of limitation
which clearly provides that the heirs succeed to the estate as tenants-
in-common in specific shares; Possession of a co-sharer or co-heir is
presumed to be that of other co-sharers or co-heirs. To start adverse
possession there must be clear and complete evidence of an ouster. It
has been clearly provided that when the heirs continue to hold the
estate as tenants-in-common without dividing it and one of them
subsequently brings a suit for recovery of his share, the period of
limitation for the suit does not run against him from the date of the
death of the deceased, but from the date of express ouster or denial of
title.
53. In the present case, admittedly there has been no partition with
respect to the suit property and in view of the aforesaid provision of
Mulla, the period of limitation commences from the date of express
ouster or denial of title. In the present case, the cause of action arose
sometimes in the month of May, 2014 when the plaintiffs learnt that
the original defendant no. 1 had entered into a development agreement
with respect to the entire schedule-B property and allowed the
developer to do the construction work and also on 25.08.2014 when
the original defendant no. 1 refused to partition and to demarcate the
share and portion of the plaintiffs. The findings of the learned trial
court on the point of limitation have already been quoted above. Upon
going through the findings of the learned trial court on the point of
limitation this court finds that every aspect of the matter has been
taken into consideration and the point of limitation has also been
decided by taking into consideration the specific provisions of
Mahomedan Law governing the parties. There is a clear finding that
there was unity of possession with respect to the suit property and
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there has never been any partition. Mere entry in record of rights will
not amount of ouster of the rights of the plaintiffs to claim partition
particularly when such entry followed by mutation came to light only
in the year 2014. In view of the aforesaid findings and having gone
through the finding of the learned trial court on the point of limitation
dealt under issue no. III there is no reason to take a different view.
Accordingly, the point of determination no. (i) is decided against the
appellants(contesting defendants) and in favour of the plaintiffs and
the suit is held to have been filed within the period of limitation.
Point of Determination No. (ii) and (iii)
54. These two points being corelated are taken up together.
55. Admittedly the suit property as described in schedule-B
belonged to Sk. Abdul Ghani – the common ancestor of the parties to
the suit. During the course of arguments of the First Appeal which
have been recorded in various orders passed by this Court, learned
Senior counsel for the appellants had given up the plea of non-joinder
of necessary parties and the foundational genealogy is not in dispute.
56. Four sets of written statements were filed by defendant nos. 1,
2, 3, 8, 10, 4 & 5 and after death of principal defendant no. 1, his legal
heirs and successors also filed a written statement on 02.08.2016. Rest
of the defendants did not appear in the suit even after paper
publication and therefore, the proceeding was ex-parte against them.
57. The main contesting defendant was original defendant no. 1
who claimed that the entire suit property belonged to him by virtue of
the oral gift (Hiba) way back in the year 1967 by Sk. Abdul Ghani.
58. In the written statement filed by the contesting defendants, a
stand was taken that Sk. Abdul Ghani (father of original defendant no.
1), made an unequivocal declaration of his intention to make an oral
gift of the suit land as doner in the year 1967 in presence of the
witnesses and the gift was accepted by the donee (original defendant
no.1) in presence of witnesses and consequently, the original
defendant no. 1 was in exclusive possession and ownership of the suit
property and accordingly, the plaintiffs or other legal heirs and
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successors of Sk. Abdul Ghani had no right, title, interest and
possession over the suit property or any portion thereof. It was also
the case of the original defendant no.1 that he got the suit property
mutated in his name vide Mutation Case No.118/XV/MNAC/87-88
and was paying rent and municipal charges in his name. In paragraph
34 of the written statement a specific statement was made as follows:
“34. That, as submitted above Sk. Abdul Ghani during his life
time in the year 1967 orally gifted the suit land to the
answering defendant in presence of the witnesses as stated
above which is also within the knowledge of the plaintiffs
and other legal heirs and successors of said Sk. Abdul Ghani
and since then the answering defendant came in peaceful
physical possession of the suit land and constructed house in a
portion of the suit land and living with this family members.”
59. This Court finds that although the year of oral gift (Hiba) has
been mentioned as 1967, but neither the month nor date nor time nor
place of alleged oral gift (hiba) have been mentioned nor the name of
the witnesses to the oral gift have been disclosed in the entire written
statement. Thus, this Court finds that the written statement was vague
on many aspects of the oral gift (Hiba) as claimed by the original
defendant no. 1.
60. It is also important to note that the written statement on behalf
of original defendant no. 1 was not signed by original defendant no. 1
nor there is any indication in the written statement that the deponent
of the written statement was authorized to file the written statement on
behalf of original defendant no. 1. The written statement was filed
under the verification and affidavit of Kalimullah who was the son of
original defendant no. 1. After the death of original defendant no. 1,
an additional written statement was filed on behalf of legal heirs of
original defendant no. 1 on 02.08.2016 which was again filed by
Kalimullah- the son of original defendant no. 1 on behalf of the
substituted heirs of original defendant no. 1. In the said statement also,
similar statement was made in connection with the oral gift (Hiba) in
the year 1967. In this written statement also, there is neither any
specific month, date, time and place of oral gift (Hiba) nor there is
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any disclosure as to who were the witnesses in whose presence the
oral gift was made.
61. This Court is of the considered view that the foundational fact
with regard to claim of oral gift (hiba) was totally absent in the written
statement of original defendant no. 1 (filed by his son Kalimullah and
not by the original defendant no. 1 himself) and also in the written
statement filed by the substituted legal heirs of original defendant no.
1 which was again filed by his son Kalimullah who had filed the
earlier written statement. This Court is of the considered view that in
case of oral gift (Hiba) the foundational facts which are required to be
essentially pleaded are date, time and place of oral gift coupled with
the disclosure of names of witnesses in whose presence such oral gift
(Hiba) was granted. Mere mentioning of the year of oral gift (Hiba)
without any foundational detail of date, time and place of oral gift
(Hiba) are not sufficient to set out the case of oral gift (Hiba). This is
over and above the fact that the original defendant no. 1 during his
lifetime, himself did not even file the written statement, rather it was
filed by his son Kalimullah without even declaring that he was
authorized by original defendant no. 1 to file the written statement.
The law is well settled that burden of proof as to a particular fact lies
on the person who wishes the court to believe in its existence unless it
is provided by any law that the proof of that fact shall lie on any
particular person. Section 103 of the Evidence Act would be relevant,
which is quoted as under:
“103. Burden of proof as to particular fact.-The burden of
proof as to any particular fact lies on that person who wishes
the Court to believe in its existence, unless it is provided by
any law that the proof of that fact shall lie on any particular
person.”
62. It is further important to note that in support of oral gift (Hiba),
altogether 4 witnesses were examined on behalf of the contesting
defendants. Out of them, two witnesses i.e., D.W. 1 and D.W. 2 are
the sons of original defendant no. 1 namely, Wali Alam. These two
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witnesses also did not disclose the date, place and month of oral gift.
The witness no.1 for the first time deposed that Gulzar Ali, Abdul
Matin and Tahir Hussain were the witnesses before whom the alleged
oral gift was made and accepted and none of the aforesaid 3
witnesses, namely, Gulzar Ali, Abdul Matin and Tahir Hussain were
produced before the court as witness and no reason has been cited for
their non-production before the court. D.W. 2 has admitted that he is
related to defendant no. 1 and he is Samdhi of Waliullah (one of the
sons of the original defendant no. 1) who had filed the written
statement of original defendant no. 1 and also the written statement on
behalf of the substituted heirs of original defendant no. 1. This witness
has explained that his daughter was married to son of Waliullah. He
has also deposed that in the year 1967, he was just 14-15 years of age
during his cross-examination at paragraph 19. There can be no doubt
that defendant no. 2 is not only an interested witness, but was just 14-
15 years of age in the year 1967 which is the year of alleged gift.
63. It is also important to note that another witness namely, D.W. 4
was examined by the plaintiffs later on, who deposed that he was the
witness of the alleged oral gift (Hiba) and this witness deposed only
after the 3 witnesses namely, D.W. 1 to D.W. 3 were examined and
discharged. It is important to note that none of the witnesses i.e. D.W.
1 to D.W. 3 ever took the name of Naushad Ali – D.W. 4 asserting
that D.W. 4 was a witness to the oral gift (Hiba).
64. So far as D.W. 4 is concerned, he himself never claimed that he
was the witness to the oral gift (Hiba), rather he deposed that his
father Gulzar Ali as well as Abdul Matin and Tahir Hussain and other
members of the society were present at the time of oral gift in the year
1967 and he was also present with his father at that time. Admittedly,
all the three named witnesses to the oral gift (Hiba), as disclosed by
defendant no. 4, were neither mentioned in any of the written
statements and D.W. 1 and D.W. 3 did not reveal the name of D.W. 4
– Naushad Ali. Even if the evidence of D.W. 4 is taken into
consideration, he also does not reveal the date, month and place of
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alleged oral gift (Hiba). This witness has admitted in his cross-
examination that he was 16 years of age in the year 1967. This witness
has not disclosed as to whether his father is alive or not and from his
introduction in examination-in-chief, it is apparent that his father was
still alive at the time of filing of the evidence on affidavit. No reason
has been cited by P.W-4 for non-production of the father or other two
witnesses to oral gift (Hiba) as named by him to depose before the
court on the point of oral gift (Hiba).
65. So far as documentary evidences placed on record are
concerned, this court finds that although the original defendant no. 1
claimed that oral gift in his favour was done by Sk. Abdul Ghani as
back as in the year 1967, but the documentary evidence produced by
the plaintiffs (exhibits- 4 and 5) reveal that it was Sk. Abdul Ghani
only who was contesting the case as the owner of the property before
the settlement officer in Case No. 333 of 1973-74 in which final order
dated 11.08.1975 was passed and further, even in the case filed under
section 83 of Chotanagpur Tenancy Act i.e., Case No. 2223 of 1972-
73 in which final order was passed on 22.08.1973, it was Sk. Abdul
Ghani who was contesting the case as the owner of the suit property.
In both the proceedings, the original defendant no. 1 was not
contesting, although he claimed that the property was given to him
through oral gift (Hiba) way back in the year 1967 and Sk. Abdul
Ghani ceased to be the owner of the suit property since 1967. There is
no explanation from the side of the original defendant no.1 and his
successors as to why Sk. Abdul Ghani was contesting the matters
before various authorities when Sk. Abdul Ghani had already gifted
the property to original defendant no. 1 through oral gift (Hiba) in the
year 1967 and had consequently ceased to be the owner of the suit
property. This is over and above the fact that even as per exhibit-G
and exhibit H – order of mutation and the correction slip dated
30.11.1987, which are the documents of mutation in favour of original
defendant no. 1, the same also do not reflect that mutation was done
on account of any oral gift (hiba) rather it revealed that mutation was
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allowed in view of certain revenue entries with respect to the suit
property in favour of the original defendant no. 1. Thus, mutation was
never claimed on the basis of oral gift (hiba). This court is of the
considered view that the contesting defendants have completely failed
to prove their case of oral gift (hiba) by Sk. Abdul Ghani in favour of
original defendant no.1. Further, there was no basis to prove as to how
the survey entry finally published in the year 1979 was made only in
the name of original defendant no.1 although the suit property
belonged to Sk. Abdul Ghani .This court is of the considered view that
the learned trial court by a well-reasoned judgement has rightly
rejected the plea of oral gift (hiba) raised by the original defendant
no.1 and has rightly come to the conclusion that in view of the
documents of title and possession the survey entry in the name of
Wali Alam seemed to be obtained fraudulently.
66. In the case reported in 2016 SCC OnLine Hyd 123 (Hifazath
Hussain and others Vs. Sadiq Hussain @ Mushraf), it has been held
that the pre-requisites that must be established to validate the oral gift
are, there must be a declaration of gift that is required to be
established showing that the donor, either in the presence of the
witnesses or otherwise by public statement declared in making the gift
and this pre-requisite as sine qua non, the other two conditions if the
same subsists are that of there must be acceptance of the gift by donee
expressly or impliedly and giving and taking of possession of the
property actually or constructively.
67. In the judgment reported in 1966 SCC OnLine SC 205
(Maqbool Alam Khan Vs. Mst. Khodaija and others), while dealing
with oral gift (hiba) it was found that the gift was made on February
10, 1943 in the presence of parents and although the mother of the
donee was alive, but was not examined as a witness; the date of the
gift was not mentioned in the plaint or in any earlier document and it
was disclosed for the first time in the witness box, and even then, it
was not made clear how he remembered the date in the absence of any
record. By taking into consideration the aforesaid facts and also the
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fact that possession arising out of oral gift (hiba) was also not proved,
the Hon’ble Supreme Court held that the concerned High Court
rightly held that the alleged oral gift was not proved.
68. In the judgment passed by High Court of Madras (Madurai
Bench) in A.S. (MD). No. 24 of 2010 (Noorjehan Beevi and others
Vs. Tajudeen and others) decided on 01.06.2023, it was found that a
bare reading of the written statement showed complete lack of
pleadings as regards the particulars of Hiba like the date, time, place
etc. Further, in the said case, the third defendant in his written
statement referred to three witnesses, but, none of the said witnesses
were examined and even the date and time of the hiba was not given
and there was absolutely no evidence except the self-serving evidence
of the third defendant to show the declaration of gift by donor, the
acceptance of the same by donee and delivery of possession. The oral
gift (hiba) was held to be not proved in the said case.
69. This Court is of the considered view that neither the
foundational pleading has been made in connection with oral gift
(Hiba), inasmuch as, date, month, time and place of oral gift (Hiba)
has not been disclosed in the written statement, nor has been disclosed
in the entire evidence placed on record from the side of the contesting
defendants to support the fact of oral gift (Hiba). Further, the name of
the witnesses to oral gift (Hiba) were never disclosed in the written
statements and suddenly the D.W-1 disclosed the name of witnesses
to oral gift, that too, without disclosing the date, month, time and
place of oral gift (Hiba). Further, D.W-4 claimed that he was just
present at the time of oral gift and was minor at that point of time and
father of D.W. 4 Gulzar Ali, Abdul Matin and Tahir Hussain were
witnesses to the oral gift (Hiba), but none was produced as witness
before the learned trial court nor any reason has been assigned as to
why these witnesses had not come forward to support the case of oral
gift (Hiba). It is also important to note that D.W-4 has also not
disclosed the date, month, time and place of oral gift (Hiba) nor the
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other witnesses of the defendants deposed that D.W-4 was present at
the time of oral gift (Hiba).
70. This court also finds that the contesting defendants have
completely failed to appropriately plead and prove the oral gift
(Hiba).
71. This Court finds that the learned trial court has taken note of the
basic ingredients of an oral gift (Hiba) which are:
(i) a declaration of gift by the donor,
(ii) the acceptance of the gift, express or implied, by or on behalf
of the donee, and
(iii) the delivery of possession of the subject of the gift by the
donor to the donee.
72. The learned trial court has rightly taken into consideration the
correction slip which was exhibited by the original defendant no. 1/his
legal heirs and successors which was dated 30.11.1987 and recorded
that the same is on the basis of Khatiyani Purcha and not on the basis
of any oral gift (Hiba). This Court is of the considered view that the
defendant no. 1/his successors-in-interest have completely failed to
plead and prove the basic ingredients of oral gift and even the
document relating to correction slip dated 30.11.1987 which shows
mutation, does not support the case of the defendant no. 1/his
successors-in-interest as the same was issued on the basis of Khatiyani
Purcha and not on the basis of any oral gift.
73. All the oral and documentary evidences in connection with
claim of oral gift (Hiba) have been meticulously and minutely
considered by the learned trial court while holding that the oral gift
(Hiba) was not proved and the suit property was required to be
partitioned.
74. This Court finds that the learned trial court has rightly recorded
that the oral gift (Hiba) was not proved and accordingly, the point of
determination no. (ii) is decided against the appellants (contesting
defendants) and in favour of the respondents (plaintiffs).
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75. So far as the point of determination no. ( iii ), as to whether
there is unity of title and possession with respect to the suit property
described in Schedule-B of the plaint, is concerned, this Court finds
that the specific case of the appellants, who are the legal heirs and
successors of the principal and contesting defendant, is that they
claimed the suit property by virtue of oral gift made in favour of the
original defendant No. 1 Seikh Abdul Ghani who is the common
ancestor. Their further case is that the suit itself was not maintainable
on account of the fact that the plaintiffs were seeking partial partition
and the properties at Bhojpur were not included in the suit property
seeking partition. It is not their case that there has ever been any
partition earlier. It is also important to note that in the written
statement no plea was raised raising objection on the point of partial
partition. However, as already held above, the oral gift (hiba) could
not be proved by the principal defendants and the objection with
regard to partial partition is also not maintainable as fully discussed in
the latter part of this judgment while deciding point of determination
no. (iv).
76. Under the Mahomedan Law, the legal heirs who inherit the
property are tenants-in-common each having separate, specific and
distinct pre-determined share and are not co-sharers/coparceners/co-
owners and therefore there is only concept of Unity of Possession as
tenants- in- common and there is no concept of Unity of Title as each
one of the legal heirs are tenants-in-common who succeed to distinct
and definite fraction of the estate of the deceased.
77. As far as Unity of possession is concerned, plaintiffs have
clearly averred the same in paragraphs 14 and 15 of the plaint and
there is nothing contrary on record and the claim of oral gift (Hiba)
with respect to the suit property could not be proved by the
defendants. On the demolition of oral gift theory as allegedly
propounded by the contesting defendants, the facts that common
ancestor Abdul Ghani was the owner of suit property and the plaintiffs
and defendants being the legal heirs and successors are tenant in
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common and are entitled to their respective predetermined share,
stood established. The fact that the suit property was handed over to
the original defendant no.1 for business purpose has been duly
established. The unity of possession has been clearly established.
78. The learned trial court has considered the entire aspects of the
matter and recorded the following findings: –
“It is not disputed between the parties that the common
ancestor of parties Sk. Abdul Ghani was residing at
Bhojpur and Sk. Ghani left some landed property and
houses in village Bhojpur and has not been included in
this suit for partition and it is admitted fact between the
parties. P.W.1 Md. Mahfooz Alam in Para-35 of his
cross examination, has admitted that at the time of death
of Abdul Ghani about 12-13 Bigha land was left. Where
his agriculture lands and house are there. Further this
witness admitted that Mohammad Alam, Moin Alam,
Jabar Alam all son of Late Abdul Ghani had sold the
land. P.W. 2 Shakil Ahmad in Para-24 of his cross-
examination has stated that his grandfather Abdul Ghani
was resided at Bhojpur, who was farmer and he has
about 30-32 bigha land. Further in Para- 25 to 26 of his
cross-examination, witness admitted that his father and
uncle had also sold some land at Bhojpur. P.W.-3 Md.
Khalid Azaz Hassain in Para-29 of his cross-examination
has admitted that his maternal grandfather was permanent
resident at Bhojpur, they used to do farming but cannot
say how much land were used for cultivation. They have
not got any share of Bhojpur’s land. D.W.1 in Para-19 of
his cross-examination has stated that both parties are
legal heirs of Abdul Ghani, and the disputed land has not
yet been divided amongst them. D.W.2 in Para-18 of his
cross-examination has stated that after the death of Abdul
Ghani disputed land has not been divided. D.W.3 in Para-
41 of his cross-examination has stated that Abdul Ghani’s
property has not been divided yet.
From perusal of Exhibit-A, certified copy of Sale Deed
No.3917 dated 15.05.1998, Exhibit-B, certified copy of
Sale Deed No.10198 dated 25.06.1993, Exhibit-C,
certified copy of Sale Deed No.10199 dated 25.06.1993,
Exhibit-D, certified copy of Sale Deed No. 9687 dated
20.06.1991, Exhibit-E, certified copy of Sale Deed No.59
2025:JHHC:239963916 dated 15.05.1998, by which it appears that the Jaffar
Alam, Mahammood Alam Moid Alam all son of Late Abdul
Ghani sold the some land of Bhojpur, and it is not disputed
between the parties.
From, perusal of evidence orally as well as documentary
produced by both the parties, it appears that there are
unity and joint possession of the parties over the
Schedule-B property and all the parties to this suit are
having their respective undivided share and portion over
the Schedule-B suit property as per Muslim Law and
Shariyat, and which has still not been partitioned in
between the parties to this suit by metes and bounds. As
discussed above it is crystal clear that the deceased
Principal Defendant No.1 Wali Alam was in occupation of
the Schedule-B property who has been allowed by the
other parties to this suit to take in use and occupation of
the Schedule-B suit property, Moreover D.W. 4 in Para-27
of his cross-examination has admitted that Abdul Ghani
had given house to his son Wali Alam for staying and for
business.
From, the above discussion, it can be said that previously
there was no previous partition was made amongst the
parties. Plaintiffs and their witnesses have also proved
that there was no previous partition amongst the parties
and there is unity of title and possession between the
plaintiffs and defendants with regard to the suit property.
Therefore, from the above discussion, I come to the
conclusion that plaintiffs have fully able to prove to
substantiate their case as there was no previous partition
made between the parties and there is unity of title and
possession between the plaintiffs and defendants with
regard to the suit property. Therefor this Issue No. VII is
decided in favour of plaintiffs and against the contesting
defendants.”
79. This court is of the considered view that the learned trial court
has rightly held that upon death of Sk. Abdul Ghani there was unity of
possession and the possession was joint possession of all the legal
heirs and successors of Sk. Abdul Ghani. The claim of exclusive title
and possession on the basis of oral gift (hiba) has already been
rejected above. This court is of the considered view that there is joint
possession/unity of possession of the parties with respect to the suit
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property in the capacity of legal heirs and successors of Sk. Abdul
Ghani. The legal heirs of Sk. Abdul Ghani with respect to the suit
property are tenants-in-common each having separate, specific and
distinct pre-determined share on the suit property and each one of the
legal heirs succeed to distinct and definite fraction of the estate of the
deceased Sk. Abdul Ghani with respect to the suit property. There is
unity of possession but there is no unity of title. The finding of the
learned trial court that there is unity of title amongst the legal heirs of
the deceased Sk. Abdul Ghani is not in accordance with law as there is
no concept of unity of title when the legal heirs are tenants in common
as per Mahomedan Law governing the parties. but so far as the
finding with regards to unity of possession is concerned, the same
does not require any interference which has been arrived after due
consideration of the materials on record.
80. The point of determination no. (iii) is accordingly decided by
holding that there is unity of possession and each one of the legal
heirs succeed to distinct and definite fraction of the estate of the
deceased Sk. Abdul Ghani with respect to the suit property which
can be subject matter of partition.
Point of Determination No. (iv)
(i) In the judgement passed by the Hon’ble Supreme Court reported in
(1971) 1 SCC 597 (Syed Shah Ghulam Ghouse Mohiuddin v. Syed
Shah Ahmed Mohiuddin Kamisul Quadri) it has been held that in
Mohammedan law the doctrine of partial partition is not applicable
because the heirs are tenants-in-common and the heirs of the deceased
Muslim succeed to the definite fraction of every part of his estate. The
shares of heirs under Mohammedan law are definite and known before
actual partition. Therefore, on partition of properties belonging to a
deceased Muslim, there is division by metes and bounds in
accordance with the specific share of each heir being already
determined by the law.
(ii) In the judgement passed by the Hon’ble Supreme Court reported in
2024 SCC OnLine SC 3809 [Mansoor Saheb (Dead) and Others -vs-
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Salima (D) by Lrs.] it has been held that in Muslim law, so long as a
person is alive he or she is the absolute owner of his or her property;
nobody else (including a son) has any right, whatsoever, in it. It is
only when the owner dies- and never before- that the legal rights of
the heirs accrue. There is, therefore, no question of a would-be heir
dealing in any way with his future right to inherit. It has also been
held that the Indian legal concepts of ‘joint’ or ‘undivided’ family,
‘coparcenary’, ‘karta’, ‘survivorship’, and ‘partition’, etc., have no
place in the law of Islam. A father and his son living together do not
constitute a ‘joint family’; the father is the master of his property; the
son (even if a minor) of his, if he has any. The same is the position of
brothers or others living together. Transfer of property if required to
be made during the lifetime of a person, they may do so primarily by
way of gift (hiba). Other methods include the writing of a will but
even therein certain restrictions have been postulated. It has been
further held that the doctrine of partial partition does not apply to
Mohammedan Law as the heirs therein are tenants-in-common and the
heirs of the deceased Muslim succeed to the definite fraction of every
part of his estate. The shares of heirs under Mohammedan law are
definite and known before actual partition. Therefore, on partition of
properties belonging to a deceased Muslim there is division by metes
and bounds in accordance with the specific share of each heir being
already determined by the law.
On the point of partial partition, it would be useful to refer to the
judgement reported in AIR 1960 J&K 57 (Khazir Bhat vs. Ahmed
Dar) wherein it has been held that it is not a correct proposition of law
to say that Muslim sharers who are tenants in common are obliged to
sue for partition of all the properties in which they are interested.
There is nothing to preclude one of them from seeking a partition of
some of the items of the properties. Such a suit cannot be held to be
incompetent as the doctrine of partial partition applies to suits for
partition of Hindu joint family property. It has been held in the
judgement reported in 1915 SCC OnLine Mad 401 (Moideensa
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Rowthen vs. Mahammad Kasim Rowthen) that under Muhammadan
Law the estate of a deceased person devolves on his death on his heirs
and each of the heirs becomes entitled to his definite fraction of every
part of the estate. Similar view has been taken in the judgement
reported in 1922 SCC OnLine Sind JC 43 (Vazir @ Dino & Another
vs. Dwarkamal & Ors.) wherein it has been held that under the
Mahomedan Law there is no such thing as joint family property; the
property left by a deceased Mahomedan and divisible among his heirs
is not joint family property but all sharers in it, until division, are
tenants in common and the shares of the owners are definite.
81. This Court finds that in the written statement, no stand was
taken that there were other properties available for partition and no
objection was taken with respect to partial partition. However, at the
stage of evidence, the contesting defendants have come up with a plea
that there were other properties available at Bhojpur and therefore, the
partition suit was bad on account of it being a suit for partial partition.
82. In view of the aforesaid judgments discussed above, this Court
is of the considered view that the Mahomedan Law with respect to
partition is not the same as that of Hindu Law. Under the Mahomedan
Law, each co-sharer is a tenant in common and each property
devolves upon the co-sharers as per the share allocated under
Mahomedan Law. In view of the aforesaid facts, the plea of suit being
barred as it prayed for partial partition, is also rejected.
83. In the judgment reported in AIR 1971 PATNA 385 (Mt.
Haliman and others Vs. Md. Manir and others), it has been held that
under Muslim Law co-heirs are tenants-in-common and they are not
obliged to sue for a partition of all other properties, in which they are
interested. There is nothing to preclude one of the joint owners of
several items of the properties from seeking a partition of one of such
items of property. Under Muslim Law, the estate of a deceased person
devolves on his death on his heirs and each of the heirs becomes
entitled to his definite fraction of every part of estate. Portion relevant
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for this case of paragraph 18 of the aforesaid judgment is quoted as
under: –
“18…………………………………………………………………
………….
without giving a detailed analysis of the findings arrived at
by the learned Subordinate Judge I hold that the learned
Subordinate Judge is correct in his conclusion that even if
the plaintiff has omitted to bring in the hotchpot for partition
several properties, movables and immovables, belonging to
Md. Ellyas Hussain and Habibul Hassan, the suit is not
liable to be dismissed. In S.M A. Samad v. Shahid Hussain.
AIR 1963 Pat375, it has been held that a suit for partition of
even one item of property is maintainable in case of tenants
in common. The ordinary rule that a suit for partial partition
of the properties owned by the parties to the suit is not
maintainable does not however, apply to the case of co-
owners who hold land as tenants-in-common as
distinguished from the co-sharers holding land as joint
tenants. In the case of tenancy-in-common, each co-owner
has got interest in each item of the property held as tenancy-
in-common, and he is entitled to claim partition in respect of
even one of these items without seeking for partition of the
other items. In the case of Mohammedans, the co-heirs are
only tenants-in-common and there is no joint family in the
Hindu Law sense of the term. In the instant case, all the
parties to the suit were interested in the items of the
properties given in Schedule A of the plaint. Therefore, the
suit cannot fail if all the properties left by Habibul Hassan
and Md. Ellyas Hussain have not been included in this suit.”
84. The Hon’ble Supreme Court in paragraph 16 of the judgment
reported in 2024 SCC Online 3809 (supra) has dealt with very
concept of partition as under: –
“16. Prior to looking to the above said sources, a general
understanding of partition would also be instructive.
Advanced Law Lexicon defined partition as a separation
between joint owners or tenants in common of their
respective interests in land, and setting apart such interest,
so that they may enjoy and possess the same in severalty. In
Shub Karan Bubna v. Sita Saran Bubna, partition was
defined as under:
“5. “Partition” is a redistribution or adjustment of pre-
existing rights, among co-owners/coparceners, resulting in a64
2025:JHHC:23996division of lands or other properties jointly held by them into
different lots or portions and delivery thereof to the
respective allottees. The effect of such division is that the
joint ownership is terminated and the respective shares vest
in them in severalty.
6. A partition of a property can be only among those having
a share or interest in it. A person who does not have a share
in such property cannot obviously be a party to a partition.
“Separation of share” is a species of “partition”. When all
co-owners get separated, it is a partition. Separation of
share(s) refers to a division where only one or only a few
among several co-owners/coparceners get separated, and
others continue to be joint or continue to hold the remaining
property jointly without division by metes and bounds. For
example, where four brothers owning a property divide it
among themselves by metes and bounds, it is a partition. But
if only one brother wants to get his share separated and
other three brothers continue to remain joint, there is only a
separation of the share of one brother.” (Emphasis
supplied)”
By referring to the earlier judgment reported in (2009) 9 SCC 689, it
has been held that when all co-owners get separated, it is a partition.
Separation of share(s) refers to a division where only one or only a
few among several co-owners/coparceners get separated, and others
continue to be joint or continue to hold the remaining property jointly
without division by metes and bounds. An example has also been
cited in the said judgment. For example, where four brothers owning a
property divide it among themselves by metes and bounds, it is a
partition. But if only one brother wants to get his share separated and
other three brothers continue to remain joint, there is only a separation
of the share of one brother.
After having considered the aforesaid judgment, the Hon’ble Supreme
Court from paragraph 17 onwards turned to the position under
Mohammedan Law and observed that the right of an heir-apparent
comes into existence for the first time on the death of the ancestor and
there is no joint ownership of father and son as is prevalent under
Hindu Law and in this context, it has been observed that the doctrine
of partial partition does not apply to Mohammedan Law as the heirs
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therein are tenants-in-common. Succession is to a definite fraction of
the estate in question. Since there is no concept of joint ownership
under Muslim Law and the heirs and successors are tenants-in-
common, there is no legal bar in having partition in connection with
one of the properties amongst many under the Muslim Law as each of
the co-owners have specific share with respect to each of the property
in the capacity of tenants-in-common. This is the position of law in
view of the aforesaid judgment passed by the Hon’ble Patna High
Court in the case reported in AIR 1971 PATNA 385 (supra) .
85. In view of the aforesaid facts and circumstances, the judgment
cited by the appellants reported in 2024 SCC OnLine 3809 (supra)
does not help the appellants in any manner. The present case is not a
case of partial partition as understood under Hindu Law and under the
Muslim Law each of the heir have specific share with respect to each
of the property in the capacity of tenants-in-common and different
partition suits can be filed with respect to different properties.
86. The relevant provisions of Mulla (Principles of Mahomedan
Law 23rd Edition) (Chapter V, Pages 42-43) as quoted above clearly
provides that there is no joint tenancy in Mahomedan law and the heirs
are only tenants-in-common. Therefore, an heir can claim partition in
respect of one of the properties held in common without seeking
partition of all the properties and it is not necessary to include all the
properties.
87. In view of the aforesaid findings, non-inclusion of the properties
at Bhojpur and the suit claiming partition only with regards to the
properties at Jamshedpur (the suit property) was maintainable. The
point of determination no. (iv) is accordingly answered against the
appellants (contesting defendants) and in favour of the plaintiffs.
Point of Determination No. (v)
88. So far as the share of the property is concerned, Sk. Abdul Ghani
had altogether 4 sons and 5 daughters. However, one of the daughters
namely Safia Khatoon expired during the lifetime of Sk. Abdul Ghani.
The legal heirs and successors of Safia Khatoon were not made party
in the suit and primarily for this reason a plea of non-joinder of
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necessary parties was raised by the contesting defendants. However,
during the course of arguments, the contesting defendants have given
up the plea of non-joinder of necessary parties. This is apparently due
to the reason that Safia Khatoon died during the lifetime of Sk. Abdul
Ghani and as per the Mahomedan Law, the question of any share or
partition does not arise during the life time of the owner of the
property and since Safia Khatoon died prior to Sk. Abdul Ghani,
therefore, her branch was not entitled for any share with respect to the
property belonging to Sk. Abdul Ghani. Therefore, the suit property
belonging to Sk. Abdul Ghani, the common ancestor, was to be
divided amongst his 4 sons and 4 daughters; the share of each
daughter is half as compared to the share of each son; if daughters get
1 share each, then the sons would get two shares each. Thus, the total
number of shares would be 4+8 = 12. Consequently, the plaintiff no. 1
who is the son of Sk. Abdul Ghani would get two shares out of 12,
plaintiff no. 2 who is also son of Sk. Abdul Ghani would also get 2
share out of 12 and plaintiff no.3 along with proforma defendant nos.
9, 10 and 11 who are descendants of the third son of Sk. Abdul Ghani,
namely, Zafar Alam, who died prior to filing of the suit but after death
of Sk. Abdul Ghani would also get 2 share out of 12. Thus, the
plaintiffs along with proforma defendant nos. 9, 10 and 11 would be
entitled to half share i.e., 6/12th share of the suit property.
89. The learned trial court has wrongly granted half share of the
suit property to plaintiff nos. 1, 2 and 3 together. The learned trial
court while allocating half share of the suit property to the plaintiffs
failed to consider that the plaintiff no.3, the grandson of Sk. Abdul
Ghani and son of Zafar Alam would inherit along with other
children/widow of Zafar Alam who were proforma defendants in the
suit. This court is of the considered view that the half share of the suit
property would go to plaintiff nos. 1, 2 and 3 along with defendant
nos. 9, 10 and 11 as the plaintiff no. 3 along with defendant nos. 9, 10
and 11 will jointly get 2/12th share of the suit property. Zafar Alam s/o
Sk. Abdul Ghani died prior to filing of the suit leaving behind his two
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sons who were plaintiff no. 3 and defendant no. 9 and one daughter
who was defendant no. 10 and one widow who was defendant no. 11.
90. The point of determination no. (v) is accordingly decided
resulting in modification of share as indicated above and the
judgement and decree of the learned trial court is accordingly
modified by holding that the half share (6/12th) of the suit property
would go to plaintiff nos. 1, 2 and 3 along with defendant nos. 9, 10
and 11.
91. As a cumulative effect of the aforesaid findings, the impugned
judgement of the learned trial court is upheld except to the extent of
modification of share as indicated while deciding the point of
determination no. (v). Consequently, half share (6/12th) of the suit
property would go to plaintiff nos. 1, 2 and 3 along with defendant
nos. 9, 10 and 11.
92. This 1st appeal is disposed of in the aforesaid terms.
93. Pending interlocutory application, if any, is closed.
94. There shall be no order as to costs.
95. The office is to prepare decree accordingly.
96. Let a copy of this Judgment be communicated to the concerned
court through Fax/E-mail.
(Anubha Rawat Choudhary, J.)
Pankaj/Mukul/AFR
68