The importance of proper identification of properties in a partition suit and the legal principles of property rights under Mohammedan Law and leasehold properties under the Orissa Estates Abolition Act.

B. PANIGRAHI, J.

( 1 ) PLAINTIFFS in Title suit No. 130 of 1980 of the Court of Civil judge, Senior Division, Bhadrak are in appeal challenging dismissal of their suit by the Judgment and decree passed therein.

( 2 ) FOR better appreciation of the case of both parties it is necessary to quote the admitted genealogy given in the plaint. (See Genealogy below)it is revealed from the genealogy that one sk. Manohar Ali had only one son, namely, sk. Asgar Ali. Sk. Asgar Ali died leaving behind his widow Zobeda @ Zabeda Bibi, who has been arrayed as defendant No. 3 in the suit before the trial Court. Sk. Asgar All had two sons, namely, Sk. Akbar Ali and, Sk. Umar Ali who have been arrayed as defendants 1 and 2 respectively, and three daughters, namely, Fatema Bibi, Sayera Banu and ayesha Sultana, who are plaintiffs 1 to. 3 respectively. The plaintiffs' case is that the immovable properties described in Schedules 'kha', 'ga', 'gha' and 'cha' and the movable properties described in Schedule 'una' belonged to their father Sk. Asgar Ali. It is further stated that the, properties described in Schedule 'cha' were acquired by the Transport and Railway Departments and compensation granted by those Departments was received by defendants 1 and 2. It is further stated that there is a Lodging house and some other houses/shops standing in Schedule 'chha' properties have been rented out and the rent amounting to rs. 4,99,500/- has been collected by defendants 1 and 2. Therefore, the plaintiffs claim 6 annas Interest in all the properties mentioned in Schedules 'kha', 'ga', 'gha' 'cha' and 'una' and in the amount of rent collected from the properties mentioned in schedule 'chha' on the ground that the aforesaid suit properties were never partitioned by metes and bounds for which the plaintiffs filed the suit for partition and separate possession.

( 3 ) RESPONDENTS 1 and 2 have filed their written statement by strongly controverting the appellant's claim. They have, inter alia, stated that the properties described in schedule 'kha' belonged to late Sk. Manohar ali, their grandfather, who gifted away about ac. 14. 00 acres of land to the defendants 1 and 2 separately in the year 1955. A major portion of Schedule 'chha' properties were sold by late Sk. Asgar Ali to different persons and since those purchasers have been possessing those properties separately, the present suit without they being impleaded as parties, is not maintainable. It has been further stated that even though the properties mentioned in Schedule 'cha' were acquired by the Transport and Railway Departments, those Departments have not been impleaded as parties in the suit. The properties described in Schedule 'ga' belonged to the Government and their father Sk. Asgar ali had got the same on annual lease basis and was being renewed at the end of every year and since Sk. Asgar Ali died in the year 1966, after his death the said properties had not been leased out till 1971. In the year 1971 defendant - respondents 1 and 2 got fresh lease in their names and, thereafter, they constructed pucca houses thereon and rented out the same. So the properties described in Schedule 'ga' cannot be partible and the plaintiffs have no interest whatsoever thereon. So far as compensation amount alleged to have been received by defendants 1 and 2 from the Transport and railway Departments in respect of Schedule 'cha' properties is concerned, it is stated that the said amount was, received by their father Sk. Asgar Ali and they having not received any compensation amount, the plaintiffs are not liable to get any share therefrom. It has been further pleaded in the written statement that out of total lands of Ac. 3. 36 decimals in Khata No. 909, Ac. 0. 41 decimals of Plot No. 2247 were acquired by Railway department and out of Ac. 1. 41 decimals of Khata No. 324 in Plot No. 341 as mentioned in Schedule 'kha', about Ac. 0. 07 decimals were acquired by the Transport department. So far as Schedule 'ga' prop