The main legal point established is the apportionment of shares in ancestral properties based on the execution of hand-note and mortgage, and the recognition of distinct boundaries of the disputed properties.

S.P.Singh, J.

1. The instant appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred against the judgment dated 25.06.1998, passed by learned Single Judge in First Appeal No. 785 of 1977, heard analogous with First Appeal No.791 of 1977, affirming the judgment and decree, dated 25.06.1977, passed by Shri Jugal Kishore Prasad, 3rd Additional Sub-Judge, Arrah, in Title Suit no. 89 of 1970 / 188 of 1974, whereby the suit has been decreed against the contesting defendants.

2. The plaintiffs, who are respondents 1st set, filed Title suit no. 89 of 1970 claiming the following reliefs:

(i) That it be declared that the plaintiffs are entitled to a share of 2 ½ annas and half in the house described in S.P. No. 5382 and are entitled to get allotment of their share in both the house carved out separately.

(ii) That the share of the plaintiff in the house in suit be separately allotted by deputation of a commissioner.

(iii) Any other relief or reliefs to which the plaintiff may be entitled in the eye of law be granted to them.

(iv) That decree for the cost of the suit be passed in favour of the plaintiff.

3. The appellant in this appeal is defendant no.4 in the suit. Respondent no.3 and her father are defendant nos. 1 and 2, and respondent no.4, Bibi Asma Khatoon, is defendant no.3. The husband of respondent no.5, namely, late Abdul Rashid, was defendant no.5 in the suit.

4. The plaintiffs case in short is that the suit houses over plot no.5382, bearing khata no. 669, in Milki Mohalla in the township of Arrah were ancestral properties of the plaintiffs and defendants 1st set. The properties belonged to one Moulvi Abdul Quadir through whom the plaintiffs are claiming. Abdul Quadir died leaving behind his wife, Taiba Khatoon, three daughters namely Bibi Zakia, Bibi Rashida and Bibi Jamila and one lone son, namely Md. Amin. The plaintiffs nos. 1, 2 and 3 are husband and daughters of Bibi Rashida respectively. Defendant nos. 1 and 2 in the suit are husband and daughter of Bibi Jakia, another daughter of Abdul Quadir. Taiba Khatoon, wife of late Abdul Quadir and Md. Amin made two transactions. One was in form of hand note executed in favour of H.K. Jain in respect of a double-storeyed building bearing holding no.898 and 899, and the other one in form of mortgage, made in favour of Fazlur Rahman in respect of the single-storeyed house bearing holding no. 900 and 901. Defendant no.4, who purchased a double-storeyed house in auction sale for realization of amount mentioned in hand-note, dispossessed Fazlur Rahman, who filed Title Suit no. 9/25 of 1951/53. They pleaded that the single-storeyed building bearing holding no.900 and 901, on plot no. 5382, was neither auction-sold, nor the same was purchased by defendant no.4, who is the appellant in this Court. The suit was decreed in favour of Fazlur Rahman, holding that the house bearing holding no.900 and 901 was not sold in auction-sale, and defendant no.4 did not acquire any right over the same.

5. The appeal against decree obtained by Fazlur Rahman was dismissed. A Second Appeal was carried to this Court, which was withdrawn by the appellant in terms of compromise petition, wherein he was permitted to pay rent at the rate of Rs. 15/- per month.

6. The case of defendant no.2 is that the suit property belonged to Md. Ibrahim, father of Abdur Quadir. Md. Ibrahim, who had two sons, namely, Moulvi Mohammad and Abdul Quadir, and daughter Bibi Azam, who had only one son namely, Md. Noman. It is the case of defendant no.2 that Bibi Hazra, wife of Moulvi Mohammad and Md. Noman, son of Bibi Azam, sold their shares to Ali Hussain, husband of defendant no.3 (Bibi Ashama Khatoon) on 07.09.1951 vide Ext.-B-1. Ali Hussain gifted the purchased property to his wife as Dain Mehar on 09.11.1964 vide Ext.C-1. The case of appellant (defendant no.4) too is that the suit property belonged to Abdul Quadir exclusively, and not to his father, and purchased the ent