The court ruled that occupancy rights granted to an individual can validate claims for partition among family members, even in the absence of formal partitions, acknowledging the distinct legal framework governing Muslim families.

JUDGMENT :

This second appeal is arising from the concurrent finding in a suit for partition. The suit filed by the plaintiffs is decreed and First Appeal is dismissed. Hence, second appeal by the defendants.

2. Second appeal is admitted on 24.09.2013 to consider the following substantial questions of law:-

"1) Whether the judgment of the Trial Court is sustainable as it appears the Trial Court has applied the proposition of Hindu undivided joint family in terms of Mithakshara law to the appellant and the respondents who are Muslims and are not covered under it?

2) Whether the judgments of the courts below are sustainable in holding that one M.K. Abdul Rashid was kartha of the family and his possession in respect of the properties?"

3. Learned counsel appearing for the defendants/appellants raised the following contentions referring to the pleadings:-

(a) The suit is filed by some of the children of Abdul Razak from his first wife, second wife, and also by second wife. Abdul Razak had two wives by name Feeranbi and Hazratbi. The grand children of M.K. Abdul Razak (from M.K. Abdul Rashid, the son from his first wife) are the defendants. The suit is filed against the wife and two children of Abdul Rashid and also grand children of Abdul Rashid.

(b) The plaintiffs claim that Abdul Razak was the propositus and on 15.05.1975, there was a registered partition in the family of Abdul Razak and his brother and in the said partition, Survey No.114 i.e. Item No.2 property was allotted to share of Abdul Razak and that was a tenanted land and Abdul Razak filed form No.7 claiming occupancy in respect of 1 acre 30 guntas in Survey No.114 and he also filed form No.7 in respect of Survey No.26/2 measuring 2 acres i.e. item No.1 property on the premise that he is the tenant in respect of the said property in his individual capacity and the Tribunal allowed form No.7 and granted occupancy right vide order dated 29.09.1981. In respect of 26/2 measuring 2 acres as well as survey No.114 is concerned, the occupancy right is granted in the proceeding No.TNCVK 46/74-75. The plaint averment would also indicate that the order of 1974-75 is not available in the file of the Land Tribunal.

(c) It is also stated that in proceeding No.TNCVR 111/74-75, 1 acre 35 guntas in survey No.26/2 is allotted to Abdul Rashid son of Abdul Razak. The plaintiffs claimed that survey No.114 was ancestral tenanted land and the Tribunal on 19.11.1981 granted occupancy in favour of Abdul Rashid as the head of the family representing the branch of the plaintiffs’ family. In this background, the plaintiffs claimed 1/2 share in the Items No.1 and 2 properties.

(d) It is also stated that in the previous suit in O.S. No.85/1997, the defendants in the said suit who are also the defendants in the present suit have admitted that survey No.26/2 was possessed by Abdul Razak as a tenant.

(e) It is also stated that on 22.10.1982, there was a partition between the branch of the plaintiffs and defendants and the records were not changed pursuant to the said partition and the plaintiffs filed a suit in O.S. No.85/1997 seeking declaration of title based on the partition dated 22.10.1982. The said suit is dismissed holding that there is no such partition. And the present suit is filed seeking partition of 1/2 share in the properties on the premise that dismissal of earlier suit does not come in the way of seeking