Bibi Noor Jehan vs Bibi Noorun Nisan and Others

S.N. Mishra, J.—The Plaintiff is the Appellant in this first appeal which arises out of the judgment and decree dated 13.6.1986, passed by the learned Addl. Subordinate Judge, Darbhanga in Partition Suit No. 103 of 1979. The Plaintiff appellant filed a suit for partition of her share in the property pertaining to Plot No. 29085and 29084 measuring an area of 3 dhurs in the land and house situated at Mohalla Baiganj in the town of Darbhanga (sic) described in Schedule IV of the plaint. The Plaintiff had further prayed for decree of Rs. 2560/- as arrears of rent against the Defendant No. 2 and a sum of Rs. 1280/- as arrears of rent against Defendant No. 3. It (sic) further prayed that, in case, if it is found that the Defendant No. 1 has realized Plaintiff share and the rent claimed by the Plaintiff from the Defendant No. 2 and 3 the a decree for realising the above amount (sic) passed against the Defendant No. 1.

The case of the Plaintiff in short that Late Hafiz Md. Salim had purchase homestead land measuring 1 Katha with house through two registered sale deed dated 17.8.1952 and 18.12.1952. The Hafiz Md. Salim had only one daughter (sic) Noorun Nisa, Defendant No. 1. One (sic) Abdul Mannan, brother of the wife of said Hafiz Md. Salim married with the (sic) of Hafiz Md. Salim. The Plaintiff is the daughter of Late Hafiz Abdul Mannan said Late Hafiz Abdul Salim sold 10 (sic) of land being Plot No. 29085 (Full 29084 (Part) from west as described Schedule-II of the plaint through register sale deed dated 24.1.1955 for consider of Rs. 4000/- and delivered the posse to the Plaintiff which were subsequent numbered as Holding No. 50, 50A. The of the properties of Schedule-1 remain possession of Late Hafiz Md. Salim. It has been an agreement between Late Md. Salim and the Plaintiff on the one and one Sabir Hasan Manjur (Defendant 3rd party) on the other. According to agreement, the Defendant third party was allowed to construct a pucca house and till then entire cost of construction is satisfied through payment of rent, would be the property of the Plaintiff under the tenancy of Hafiz Md. Salim and rest of the constructed area would be in occupation of the Defendant 3rd party as tenant of Plaintiff on the monthly rental and the remaining 3 dhurs with old tiled houses which was not the subject matter of agreement shall remain with the Plaintiff as owner of the same. It is further alleged that on 25.12.1968 there was an amicable arrangement arrived at between the Plaintiff and Hafiz Md. Salim by which the Plaintiff became an exclusive owner. Hafiz Md. Salim died in 1976 and in is place her son-in-law (Defendant No. 2) became the tenant of the Plaintiff at the monthly rental of Rs. 60/- only. After the death of Md. Hafiz Md. Salim the name of the Plaintiff was mutated both by the Municipality as well as the State of Bihar. The Defendants 1 and 2 subsequently started creating problem and the Plaintiff had no alternative but to file unit for the relief sought for as stated above.

The Defendant No. 1 to 3 have appeared before the Court below and filed their separate written statement. Apart from taking usual plea, the Defendants have stated in their written statement that the plots in question, were recorded in the same of one Dayalu Sah and the said Dayalu Sah sold the land in question orally Rs. 20/-in the year 1909 to one Mohar Sah of Village Bakerganj, the then landlord made permanent settlement of some portion of the land with one Mohar Sah, who has become the owner of the plot in question. After the death, the heirs of the said it Mohar Sah sold 6 dhur''s 13 Dhurkis 3 parties of land to one Hafiz Md. Salim by registered sale deed dated 13.2.1952 and but the purchaser in possession. The other Defendants have supported the case of the Defendant No. 1. It is admitted position that the Plaintiff has purchased the land in question by two separate sale deeds dated 17.8.1952 and 18.12.1952 measuring 10 dhurs of land pertaining to the aforesaid plot from Late Hafiz Mohammad Salim. The Plaintiff as stated above, has filed the instant suit for partition of the aforesaid 10 dhurs of land belonging to Hafiz Mohammad, who has acquired the entire land of the aforesaid plot vide two separate sale deeds and the Plaintiff purchased half of the land of the aforesaid plot from the said Hafiz Mohammad through sale deed dated 24.1.1995 and since then the Plaintiff is coming in possession through her tenants who are paying rent to the Plaintiff. Having regard to the point involved in this appeal and the contention raised by the learned Counsel both oral and documentary available on the record, it is admitted position that the name of the Plaintiff has already been mutated with respect to the land in question both from the revenue as well as the municipal authority. The Defendants have neither disputed the title and possession over the half of the land of the aforesaid plot and the Court below has also come to the finding that the Plaintiff being a owner is in possession over the land, in question, on the basis of the purchase through registered sale deed in the year 1955. The Court below has considered the relevant documentary evidence namely the mutation, rent receipts and the sale deeds. The Court has also come to the finding that the tenants were paying the rent to the Plaintiff, but after some time they stopped payment of the rent to the Plaintiff which will be apparent from the findings of the Court below itself as the prayer of the Plaintiff for realising the arrears of rent has been decreed in her favour. The Plaintiff has been non-suited by the Court below only on the ground that she has not prayed for partition of the entire 1 Katha of the land pertaining to the plot in question. As has been stated above that the ownership and the title and possession over half of the land of the entire 1 Katha pertaining to the aforesaid plots is admitted by the Defendants as well but inspite of that the prayer for partition has been refused only on the technical ground to the effect that the Plaintiff has not sought for partition of the entire 1 Katha of the land. The relevant finding of the Court below reads as follows:

I further find that on 21.8.1969 Hafiz Md. Salim transferred the remaining 10 dhurs of land with house thereon to Defendant No. 1 by deed of gift and that there has been no partition between the Plaintiff and Hafiz Md. Salim or the Plaintiff and Defendant No. 1 and the entire 1 Kathe of land with houses are still joint and that as the Plaintiff has sought for partition in respect of only a part of the entire 1 Katha of land, as mentioned in Schedule-IV of the plaint, the suit is bad for partial partition.

On the basis of the aforesaid finding the learned Subordinate Judge has answered the issues against the Plaintiff and thereby non-suited her with respect to the land in question. Since the title and possession of the Plaintiff with respect to the half of the land pertaining to the aforesaid plots measuring 10 dhurs out of one Katha is admitted, the Court below ought to have partitioned the land in terms of the prayer made by the Plaintiff in the instant suit. On the basis of the pleadings of the parties, the Court below has framed as many as 10 issues out of which the issue No. 4 reads thus:

Is the suit bad for partial partition ?

I have heard learned Counsel for the Appellant in detail. No one appears on behalf of the Respondents. I have gone through the judgment in detail and considered the submission of the learned Counsel for the Appellant. From the materials both oral and documentary, available on the record, I am of the view that the trial Court has committed an illegality in non-suiting the Plaintiff with respect to the 10 dhurs of land pertaining to the aforesaid plots 29085 and 29084 on a mere technical ground. Accordingly I set aside the judgment decree of the trial Court and allow the appeal of the Plaintiff. Let the decree be accordingly prepared. However in the facts and circumstances of the case, there will be no order as to costs.