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HIGH COURT OF PATNA (RANCHI BENCH)
S. B. Sinha, J.
Zeyarat @ Jeyarat Hussain and another - Appellants
Vs.
Kamsmali Mian (since dead) and others - Respondents
Appeal from Original Decree No. 8 of 1983 (R)
Decided on: 9.8.1991
PARTITION - SUIT FOR - MAINTAINABILITY - NON-JOINDER OF NECESSARY PARTIES - UNITY OF TITLE AND POSSESSION - EVIDENCE - INFERENCE OF PREVIOUS PARTITION - LIMITATION.
Fact of the Case:
Plaintiffs filed a suit for partition claiming 1/12th share in the properties described in schedule B of the plaint. The suit was dismissed by the trial court on the ground that it was bad for non-joinder of parties and that there was no unity of title and possession in respect of the suit properties.
Finding of the Court:
The court held that the suit was bad for non-joinder of parties as the daughters of Jodhi Mian, who were necessary parties, were not impleaded. The court also held that the plaintiffs had failed to prove unity of title and possession in respect of the suit properties and that an inference of previous partition could be drawn from the circumstances on record.
Issues: 1. Whether the suit was bad for non-joinder of parties? 2. Whether the plaintiffs have been able to prove unity of title and unity of possession in respect of the suit properties?
Ratio Decidendi: 1. On the issue of non-joinder of parties, the court held that in a suit for partition filed by one of the co-sharers of a Muslim family, the suit may not be held to be bad for non-joinder of all co-sharers, as the shares of each co-sharer are specific and definite. However, the court held that in the present case, the daughters of Jodhi Mian were necessary parties as they were in possession of a portion of the properties in suit and that their non-joinder was fatal to the continuity of the suit. 2. On the issue of unity of title and possession, the court held that the plaintiffs had failed to prove that they had a common ancestor with the defendants and that they were in joint possession of the suit properties. The court also held that the fact that the parties were in separate possession of the lands and that they had been paying rent separately for a long time led to an inference of previous partition.
Final Decision: The court dismissed the appeal and held that the suit was rightly dismissed by the trial court.
S. B. Sinha. J. - This first appeal is directed against a judgment and decree dated 17.11.1982 passed by Sri B. Kandir, 2nd Additional Subordinate Judge, Giridih, in Partition Suit no. 55 of 1979 whereby and whereunder the said learned court dismissed the plaintiffs' appellants' suit for partition. The aforementioned suit was filed by the plaintiff claiming inter alia 1/12th share in the properties described in schedule B of the plaint.
2. In order to appreciate the fact of the matter which is not in dispute, the genealogical table of the parties may be noticed which is set out as under:-
Guna Mian
Jhumar=widow Dina Bihari Juthan Manbodh
Barsani
Kabir Kasmali Jadu Madan Jodhi= Samat Ali Ali Mian
D.1 Widow Bibi =Begum
Malin D.13. Bibi.
Ishaque
D.2.
Maniruddin Jayarat Sahabuddin Jalil Chhotka Mian Tawarakh
D.15 Hussain Plff. no.2 D.11 D.14. = widow
( ) Plff. 1 Bibi Khatija
D.16.
Jhumar
=daughter Bibi Lachho Ainul Nizamuddin
D.22 D.23
Nabi Mian Sahdali Rajan Ahmad Rehmagul Bibi Saliman
D.10.
Maniruddin Gafoor Barasat
D.4 D.5
Ainul Mian Sikandar Yasin Imammuddin
D.3 D.6 D.8 D.7
3. According to the plaintiff, the properties, in suit previously belonged to and recorded in the names of Jhumar Mian and Dina Mian having two sheres; and Madan and Jodhi son of Bihari having one share. Thus, three branches of Jhumar, Dina and Bihari had one share each in the suit properties.
4. Admited1y, the parties are in separate possession of the aforementioned lands. According to the plaintiff, such acts of possession are being exercised by the parties by way of convenience; whereas according to the contesting defendants/respondents, the recorded tenants partitioned the lands by metes and bounds immediately after completion of the cadestral survey settlement operations.
It appears from the record of rights that Jhumar Mian had been in possession of 7.11 acres of land; Dina Mina had been in possession of 1.16 acres and Madan and Lodhi Mian together were possessing a land measuring 3.08 acres.
5. According to the plaintiffs, the said lands were never partitioned and Jhumar Mian died in the state of jointness 7-8 years after the survey operations leaving behind his widow Mosst. Barsani and a daughter named Bibi Lachhu. Allegedly, after the death of Jhumar Mian, his widow began to live with the plaintiffs and others where she died and her last rites were performed by the plaintiff. Bibi Lachhu was married with Khairat Ali of village Kasmar. Lachhu left behind five sons named Nabi Mian, Sahdali, Rajan, Ahmad, Rahmagul and one daughter Bibi Saliman.
6. Mosst. Lachhu or her sons, according to the plaintiffs, did not take any interest in the cultivation of the suit land, but, in the year 1952, they made an attempt to get their alleged share recorded in the name of Jhumar Mian and with this in view, filed Partition Suit which was registered as Partition Suit no. 57 of 1952. In the said suit, only the properties recorded in khata no. 300 of village Seram were the subject matter thereof and not the suit properties. The said suit was dismissed and the plaintiffs of the said suit preferred an appeal before the District Judge, Hazaribagh, and the said appeal was allowed.
7. Allegedly, at that point of time, some of the other co-sharers of khata no. 82 agreed to partition the lands out side the court and the defendant nos. 3 to 10 (heirs of late Bibi Lachhu) get the said lands separated but as they found difficulties in managing and cultivating the same for themselves, they gave their shares of land to the plaintiff in Adhbatai and since then the plaintiffs are cultivating the said lands as Adh-bataidar of the defendants. With regard to the share of Dina Mian, it
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