The central legal point established in the judgment is the requirement to prove unity of title and possession in a partition suit, along with the need for specific evidence and supporting witnesses to substantiate the claims.

JUDGMENT :

Heard Mr. Manoj Kumar Sah, learned counsel for the appellants.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 28.10.2009 (decree signed on 23.11.2009) passed by the learned District Judge, Godda in Civil (Title) Appeal No.21 of 2000 affirming the judgment dated 29.06.2000 (decree signed on 13.07.2000) passed by the learned Sub-Judge-I, Godda in Title (Partition) Suit No.29 of 1998.

3. Title (Partition) Suit No.29 of 1998 was instituted by the appellants/plaintiffs in which they have claimed 4/5 share in the suit property, which was dismissed on contest with cost vide judgment dated 29.06.2000. Being aggrieved with that judgment, the appellants/plaintiffs have filed Civil (Title) Appeal No.21 of 2000 which was dismissed vide judgment dated 28.10.2009 affirming the judgment passed by the learned trial court and, thereafter, this second appeal has been filed by the appellants/plaintiffs.

4. The appellants/plaintiffs instituted Title (Partition) Suit No.29 of 1998 alleging therein that they are the descendants of one common ancestors Ashique Mandal. Ashique Mandal had two sons, Gudri Mandal and Badri Mandal. The suit Khata was recorded in the name of Gudri Mandal and Badri Mandal, but their respective separate possession was recorded in the remarks column of the record of rights. The suit lands are the lands exclusively shown in possession of Badri Mandal. According to the plaintiffs, Gudri Mandal had five daughters namely Madni, Ashni, Sadni, Nazinan and Lukho. The plaintiffs claimed to be the descendants of Madni, Sadni, Nizinan and Lukho and the defendants 1st party were the descendants of Ashi Mandal. The respondent 2nd party are the descendants of Badri Mandal, whose land has not been included in the suit. After the death of Gudri Mandal, the plaintiffs being his heirs succeeded to the suit property and were in possession of the same. Subsequently, they felt difficulty in enjoyment of the usufruct of the suit land and, therefore, the said suit was filed. It was also pleaded that the plaintiffs and defendants are muslims and they are governed by the Hanafi School of Mohammdan Law. The plaintiffs though since last one year prior to institution of the suit requested for partition, but the defendants avoided the same on same pretext or other and have finally refused to make partition of the suit in May, 1996.

5. The defendants 1st party appeared but did not contest the suit. The respondents 2nd party, who were the proforma defendants in the suit filed a written statement and contested the suit. According to the respondent 2nd party-proforma defendants Gudri Mandal died in the year 1948. Gudri Mandal was survived by his younger brother Badri Mandal as his nearest residuary heir. Gudri Mandal had no son and his brother Badri Mandal inherited all his property. The respondents 2nd party-proforma defendants are the heirs of Badri Mandal and are in possession over the suit land. After the death of Gudri Mandal, the respondents 2nd party-Proforma defendants, performed chalisa of Gudri Mandal in the house in which the plaintiffs and the defendants 1st party had taken part. None of the 5 daughters of Gudri Mandal survived as they all died during the life time of Gudri Mandal. The son and grand son of Bibi Madni never inherited the suit land. Bibi Madni, was married in Rampur, P.S. Dhoraiya, Dist. Banka. Bibi Madni had a son namely Yakub, who died leaving a son Mahboob, the plaintiffs no.1 and a daughter who is married in Dhapra to Sk. Maramat and she is still alive so it was pleaded that the suit is barred for non-joinder of necessary parties. Similarly, several other daughters, who are the descendants of Gudri Mandal having not been made party in the suit. The plaintiffs and defendants 1st party by swearing an affidavit before A.S.O., Naraini admitted that Bibi Lekho died before Sk. Gudri Mandal during the chalisa of Gudri Mandal in the year 1948. Some of the plaintiffs dema