N.CHAUDHURY
Bilat Ali – Appellant
Versus
Sainur Ali – Respondent
Advocate Appeared:
For the Petitioner:T. Goswami, Advocate.
For the Respondents:H.R.A. Choudhury, F.U. Borbhuiya, A.S. Choudhury and L. Rahman, Advocates.
Judgement Key Points
- The suit involves a partition dispute over land originally owned by Bali Sk., who died leaving three sons: Thiru Sk., Mana Sk., and Huwa Sk., with defendants claiming a fourth son Bhubura Sk. (!) (!) [14000228050003]
- Plaintiff Bilat Ali purchased portions of the land from legal heirs: 19 Lechas from Abeda Begum (daughter of Huwa Sk.) via Exhibit-1, 8 Lechas from Milik (son of Mana Sk.) via Exhibit-2, 10 Lechas from Merina Begum via Exhibit-3, and 11 Lechas from Nazrul via Exhibit-4, totaling 2 Katha 8 Lechas out of 2 Katha 19 Lechas. (!) [14000228050002]
- Plaintiff alleged defendants trespassed on 18.11.95 into Plots Z and X (13 Lechas and 11 Lechas), constructed a house, and sought ejectment, demolition, partition of 11 Lechas from Plot X(i), and perpetual injunction. [14000228050002]
- Defendants claimed oral family settlement where Thiru Sk. and Huwa Sk. abandoned the land and shifted to another village, leaving possession with Mana Sk.; suit bad for non-joinder of parties and barred by limitation/adverse possession. [14000228050003][14000228050004]
- Trial court initially dismissed suit, but on appeal remanded with additional issue on plaintiff's title; after re-trial, decreed suit for plaintiff. [14000228050006][14000228050007][14000228050008]
- First Appellate Court reversed, dismissing suit entirely. (!) [14000228050008]
- High Court framed three substantial questions: (1) misconstruction of Hanafi Mahomedan inheritance for shares of plaintiff's vendors; (2) error in applying Section 106 of Mulla's Mahomedan Law (Doctrine of Return) ignoring Sunni status; (3) error on adverse possession based on pleadings/evidence. (!) (!) (!) [14000228050008]
- No proof of oral gift or agreement making Mana Sk. sole owner; sales by Abeda, Nazrul, etc., valid to extent of their shares under Sections 63 and 65 of Mulla's Mahomedan Law (sharers/residuaries), e.g., daughters entitled to half as sharers, balance to residuaries. [14000228050012] (!) (!) (!) (!) (!) [14000228050013]
- Doctrine of Return under Section 106 inapplicable as residuaries existed for Huwa Sk. and Thiru Sk.; first and second questions decided for appellant. [14000228050013][14000228050014]
- Adverse possession plea failed: no specific date of adverse possession pleaded; possession initially permissive via alleged family settlement, cannot be both permissive and adverse. [14000228050015]
- Plaintiff has some title via valid purchases; suit is for partition, requiring assessment of all parties' entitlements under Order 20 Rule 18 CPC. [14000228050010][14000228050016][14000228050017]
- Appeal allowed; first appellate judgment set aside; remanded to First Appellate Court for re-adjudication, allowing further evidence under Order 41 Rule 27(b) CPC if needed, considering Sections 63, 65, 106 of Mulla's Mahomedan Law. [14000228050017][14000228050018]
JUDGMENT AND ORDER
N. Chaudhury, J. - The First Appellate judgment and decree dated 30.9.2005 passed by the learned District Judge, Darrang at Mangaldai in T.A. No. 1/2004 has been called in question by the plaintiff of T.S. No. 26/97 in the present second appeal. The learned Trial Court by his judgment and decree dated 15.12.2003 decreed the suit of the plaintiff and the learned First Appellate Court while reversing the Trial Court decree, dismissed the suit in entirety.
2. The brief but necessary facts involved in the present case are required to be stated at the threshold.
The present appellant Bilat Ali as plaintiff instituted T.S. No. 26/97 in the Court of learned Civil Judge, Darrang at Mangaldoi stating that the suit land originally belonged to one Bali Sk. who died leaving behind three sons, namely, Thiru Sk., Mana Sk. and Huwa Sk. After the death of Bali Sk., his three sons made family settlement amongst themselves and thereupon Thiru Sk. got land measuring 1 Katha 1 Lecha, Mana Sk. got 19 Lechas and Huwa Sk. also got 19 Lechas of land. Thiru Sk. died leaving behind his only daughter Mariam Begum who on turn died leaving behind one daughter Marina and her husband Nasiruddin A
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