Second Appeal No. 657 of 2011. Case: Ziaul Haque @ Ziaul Rahman @ Zainul Haque & Ors. Vs Zawadul Haque & Ors.. High Court of Patna (India)
| Case Number | Second Appeal No. 657 of 2011 |
| Counsel | For Appellant: Mr. Najeeb Ahmad, Adv. |
| Judges | Chakradhari Sharan Singh, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 11 |
| Citation | 2013 (4) PLJR 370 |
| Judgement Date | April 29, 2013 |
| Court | High Court of Patna (India) |
Order:
Chakradhari Sharan Singh, J.
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Heard learned counsel for the appellants. The present second appeal arises out of Title Suit No. 22 of 1998 filed by the appellants which was dismissed vide judgment and decree dated 5.4.2007 and 24.4.2007 respectively, passed by learned Sub-Judge-I, Purnea. First Appeal preferred say the appellants/plaintiffs vide Title Appeal No. 22 of 2007 also came to be dismissed by learned Additional District Judge, F.T.C. No. 2, Purnea vide judgment and decree dated 28.9.2011 and 20.10.2011 respectively. Hence, this present second appeal which has been placed before me for hearing under Order 41 Rule 11 of the Code of Civil Procedure. Parties, in the present appeal have been described as per their position before the trial court.
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It transpires that the sons and daughters of late Abdul Aziz brought the title suit (partition) No. 22/1998 against the defendants seeking a preliminary decree for partition of the plaintiffs as per the share described in schedules-A and B lands and for direction to the defendants to partition the suit lands by metes and bounds within a time to be fixed by the court failing which appointment of a survey knowing Advocate Commissioner to partition the suit lands by metes and bounds and carve out a separate Takhta for the plaintiffs with their respective shares in schedules-A and B lands and allot the same exclusively to the plaintiffs. They further sought a relief that the lands sold and purchased by the plaintiffs be calculated in their share and after submission of the report of the survey knowing Advocate Commissioner and hearing objections to his report, a final decree be passed accordingly.
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As per the plaintiffs' case, lands of R.S. Khata Nos. 2, 4, 5 and 6 of Mouza-Gyandob, Thana-Amour, Thana No. 140 and R.S. Khata No. 47 of Mouza-Amour, Thana-Amour, Thana No. 159 and R.S. Khata No. 1 of Mouza-Bahadurpur, Thana-Amour, Thana No. 153 originally belonged to late Abdul Aziz son of late Gulzar Ali having 1/2 share and Bibi Imaman and Bibi Sabezan daughters of late Gulzar Ali having 1/2 share and were recorded as such in the revisional survey with their mother Most. Hamidan. Most. Hamidan died leaving behind her son Abdul Aziz and the daughters as mentioned above, who were the only legal heirs and were all along enjoying possession thereof. It was further pleaded that lands of R.S. Khata Nos. 3 and 73 of Mouza-Gyandob belonged to Abdul Aziz son of late Gulzar Ali who was in possession of the land exclusively. The lands of these two Khatas formed part of schedule-B of the plaint.
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Abdul Aziz is said to have died leaving behind his widow Zabula, two sons Zabadul Haque (defendant No. 1) and Ziaul Haque (plaintiff No. 1) and six daughters, Bibi Fatma, Bibi Maimun, Bibi Marin (plaintiff No. 2), Bibi Lakma, Bibi Fulo and Bibi Naizun (plaintiff No. 3) before the courts below.
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It was pleaded that Bibi Sabejan, daughter of late Gulzar All, sold away her entire share in schedule-A land to Bibi Jabula wife of Abdul Aziz, Bibi Mairum (plaintiff No. 2), Bibi Fulo and Jabdul Haque.
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It was also pleaded that Bibi Habiban and Bibi Tahira, daughters of late Imaman, sold away their share in schedule-A land to plaintiff No. 1. Accordingly, Ziaul Haque and Jabedul Haque (defendant No. 1) were...
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