ABDUL SAMAD Vs. ALIMUDDIN

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for a declaration of the plaintiff's title to, and for confirmation of his possession over, a specific portion representing one-third share of a house standing on plot No. 12112 in village Rasoolpur Massian, tauzi Nos. 11332 and 11334. According to the case of the plaintiff, this house originally belonged to three brothers Ali Karim, Tasadduq Husain and Wazir Ali. His story is that the house was partitioned between the three brothers in equal shares, the eastern portion which is claimed in the suit being allotted to Ali Karim, deceased husband of plaintiff's vendor Mt. Bibi Eqbalan. After the death of Ali Karim his widow came into possession of this portion of the house as his heir and also in lieu of her dower debt. The purchase under which the plaintiff claims was by a registered kebala executed on 11th November 1938, for a consideration of Rs. 50. In the plaint there was also an alternative prayer for recovery of possession over the share purchased by the sale deed and for partition.

(2.) The case of the contesting defendants was that the house in question originally belonged to Reyaz Ali, the father of Ali Karim, and that after the death of Reyaz Ali the house was inherited by the three brothers, their two sisters Mts. Gafooran and Sayeedan, and their mother Mt. Fazilan. Subsequently, according to the defence, by means of a series of transfers by the different heirs the 16 annas interest in the house became vested in Nazir Ali, and after his death it was transferred by his widow Mt. Tamizan (defendant 2) to Ali-muddin (defendant 4).

(3.) The suit was tried by the first additional Munsif of Bihar who rejected the story of the defence and found the facts entirely in favour of the plaintiff. Ho decreed the suit, granting the plaintiff the primary reliefs asked for by him. The appeal against this decree was heard by the Subordinate Judge, second Court, Patna, who concurred with the Munsif in rejecting the defence story. He found that the house originally belonged to the three brothers and that they had equal shares therein. He also found that Mt. Eqbalan came into possession of her husband's share and remained in possession thereof in lien, of her dower debt, and that she transferred her interest in the property to the plaintiff by a bona fide sale for consideration and put him in possession. He held, however, that the partition of the house between the three brothers had not been proved and that Ali Karim was in possession of the eastern portion of the house merely by mutual agreement with his brothers and for convenience of occupation and enjoyment of the property. He therefore held that by his sale deed the plaintiff did not acquire a right to any specific portion of the house. He further held that Mt. Eqbalan's interest in the property was confined to her one-fourth share as an heir of her husband, that is to say, a one-twelfth share in the, whole house, and that by the sale deed only this one-twelfth share passed to the plaintiff. As regards the remaining portion of her husband's share the learned Subordinate Judge held that under the sale deed the plaintiff did not acquire Mt. Eqbalan's right to remain in possession of it in lieu of her dower debt. Upon these findings the learned Subordinate Judge modified the decree of the original Court. He declared that the plaintiff is entitled to one-twelfth share in the house and directed that the plaintiff should remain in joint possession of this share along with the defendants "till the house is partitioned through a Commissioner appointed by Court."