Case: Aziza Ekbal Khatun Vs Hasina Akhtar (dead) after her Md. Sayidulla and Ors.. High Court of Orissa (India)
| Judges | A.K. Parichha, J. |
| Issue | Property Law; Evidence Act - Section 50 |
| Citation | 105 (2008) CLT 255 |
| Judgement Date | November 30, 2007 |
| Court | High Court of Orissa (India) |
Judgment:
A.K. Parichha, J.
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This is an appeal by Defendant No. 1 challenging the Judgment and decree of Learned Additional Sub-ordinate Judge, Balasore, passed in O.S. No. 101 of 1982-1 decreeing the suit for partition and allotting half share to the Plaintiff in the suit property mentioned in Schedule 'Kha' of the plaint.
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Respondent no-1, Hasina Akhtar filed the above noted suit against the Appellant and her minor son Md. Annisuddin (Respondent No.2) praying for a declaration that she is entitled to half share in the schedule 'Kha' of the suit property, partition of the same and delivery of possession of her share through Civil Court Commissioner. Her case in essence was that Altafuddin @ Aftapuddin of village Kasba had two daughters and a son namely-Roshan Akhtar, Hasinna Akhtar (Plaintiff) and Md. Abasuddin. Since Aftapuddin and his wife died when their children were of tender age, the children were taken to the house of maternal uncle at village-Mirjapur in the district of Medinapur and were brought up there by the maternal uncle. Md. Abasuddin died leaving behind a daughter. Roshan Akhtar was given in marriage by her maternal uncle to a man of village-Dinajpur. But this first husband of Roshan died about six months after her marriage. Thereafter, Roshan was married to Abdul Salam Mohamed Sahauddin of Balasore (for short, 'Sahauddin'). Plaintiff in the meantime was married to Md. Sahidulla, who is P.W.4. The specific case of the Plaintiff was that Roshan out of her own fund purchased the suit property through two registered sale deeds, took over possession of those lands and got those lands mutated in her name in revenue records and also paid rent to the then Zamindar and after abolition of Zamindari paid the rent to the State Government. Roshan died on 25.08.1972 issue less. Since the parties are governed by Muslim Sunni Law, the Plaintiff as the uterine sister and Sahauddin as the husband inherited the suit property having equal share in the same and the Plaintiff possessed her share of the suit lands through her husband and son for some time. Sahauddin married Defendant No. 1 after the death of Roshan and he was blessed with a son, who is Respondent No. 2. After death of Sahauddin, Defendant No. 1 being instigated by some of her relatives created trouble in the possession of the Plaintiff over the suit land. The Plaintiff requested Defendant No. 1 for partition of the suit property and give her share in the same, but Defendant No. 1 refused to effect partition. Therefore, the Plaintiff filed the aforementioned suit for partition and allotment of her share. 3. Defendant No. 1 refuted the case of the Plaintiff in her written statement and pleaded inter alia that the Plaintiff is neither the sister of Roshan nor she is related to her in any manner. She further pleaded that the suit properties were actually purchased by her husband-Sahauddin from his own funds in the name of Roshan by way of benami transaction and Sahauddin was the real owner in possession of the suit properties. She accordingly, denied the claim of the Plaintiff for partition of the suit lands and allotment of share in the same. Defendant No. 2 being minor was represented by a guardian appointed by the Court. The said guardian filed a separate written statement reiterating the plea of Defendant no.1.- Considering the plea of the parties, Learned Trial Court framed the flowing 8 issues:
(1) Is there any cause of action?
(2) Is the suit maintainable?
(3) Is the Plaintiff sister of the deceased Roshan Akhtar and daughter, of Aftabuddin?
(4) Was the disputed property purchased by A.S. Md. Sahauddin in the name of his wife?
(5) Is the suit barred by limitation?
(6) Is the suit property valued and whether the Court fee paid is adequate?
(7) Is the Plaintiff entitled to bring a simple suit for partition?
(8) To what relief, if any is the Plaintiff entitled?
In support of her case, Plaintiff examined four witnesses including herself as P.W. 1 and also produced documents which were marked as Exts. 1 to 4. Defendant No. 1 examined eight witnesses, she herself being D.W.8. She also exhibited documents Exts. A to L. On consideration of these evidences Learned Trial Court came to hold that the Plaintiff is the sister of Roshan Akhtar, that Roshan Akhtar purchased the suit properties from her own funds and was the owner of the same, that being the sister of Roshan, the Plaintiff is entitled to half share in the suit properties. Learned Trial Court also held that the suit for partition simplicitor is maintainable, that there was cause of action for filing the suit, that the suit is not barred by limitation, that the suit has been adequately valued. With these findings, Learned Trial Court decreed the suit for partition on contest. The said Judgment and decree is under challenge in this appeal.
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During pendency of the appeal Respondent No. 1-Hassina Akhtar died and her legal heirs Respondent Nos. 1/a to 1/f were substituted. The first appeal was heard and disposed of by Judgment dated 9.2.1996. Learned single Judge confirmed the Judgment and decree of the Learned Trial Court and dismissed the appeal. The Appellant preferred AHO No. 36 of 1996. In that AHO, the Judgment of the first appeal dated 9.2.1996 was set aside and the appeal was remitted back to this Court for fresh disposal and in consequence the appeal was reheard.
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Mr. S.P. Mishra, Learned Counsel for the Appellant basically challenged the finding on issue Nos. 3 and 4. According to him, Learned Trial Court could not properly appreciate the evidence adduced by the parties and also committed-some error of record. He pointed out that the Defendant -Appellant never admitted P.Ws. 2 and 3 as relatives of Roshan Akhtar and therefore, it was improper on the part of the Learned Trial Court to rely on the evidence of those witnesses with an observation that they are admittedly...
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