TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS regular first appeal is directed against the preliminary decree for partition granted by the trial court, the District & Sessions Judge, Rajsamand dated 21st April, 2003 by which the trial court granted preliminary decree for partition and perpetual injunction in favour of the plaintiffs- respondents nos. 1and 2. Brief facts of the case are that ancestor of the plaintiffs and defendant Rahim Khan died in the year 1969 living behind four sons Bhure Khan, Mohd. Ismail Khan, Azad Rasul and Dauid Khan @ Dinesh (after conversion) and one daughter Smt. Zenab. Bhure Khan died in the year 1985 and his decedents are defendants. Mohd. Ismail Khan died in the year 1998 and his one of the son is plaintiff no. 1 and rest of the decedents are defendants no. 10 to 14. Daud Khan converted himself to be Hindu by adopting Arya Samaj and he did not claim any share in the property of deceased Rahim Khan. The suit has been filed by Azad Rasul who is as stated above son of Rahim Khan and Mohd. Suleman Khan who is son of deceased Mohd. Ismail Khan. So far as properties involved in the present litigation are concerned, they are not in dispute that they were belonging to Rahim Khan except one property for which it is stated that said property was purchased by Bhure Khan from his money but in the name of Rahim Khan. That plea was not accepted by the trial court and the suit was decreed for all the properties of Bhure Khan mentioned in the schedule 'ka' and 'kha' annexed with the plaint. The plaintiffs' case was that after the death of Rahim Khan, the property was never divided and they requested to divide the property by serving notice upon the defendants dated 6th Oct. , 1998, but the defendants did not agree for partition and, therefore, the suit was filed. Defendants nos. 1 to 6 and 7 filed written statement admitting the pedigree of Rahim Khan. It is stated that the properties mentioned in para no. 2 'ka' and 'kha' were the properties of Rahim Khan but before his death those all properties were gifted (by Hibba) to Bhure Khan s/o of Rahim Khan in the year 1958. After the death of Rahim Khan, Bhure Khan alone remained in possession of all the properties. Not only that oral Hibba was there of the year 1958, but memorandum admitting Hibba was executed by deceased Rahim Khan after 10 years in the year 1968 which is precisely on date 6th Sept. , 1968. This memorandum of Hibba was handed over to daughter of Ramhim Khan Smt. Zenab, who is also defendant in the suit. According to the contesting defendants decedents of Bhure Khan including defendant Zenab, memorandum of Hibba remained in the custody of Zenab from the year 1968 till a notice was received by the contesting defendants from the plaintiffs seeking partition of the properties in the year 1998. The decedents of Bhure Khan defendants had no knowledge of either Hibba of 1958 or about memorandum of Hibba dated 6. 9. 1968. After receipt of notice only, the decedents of Bhure Khan came to know about memorandum of Hibba as that was given by Zenab to one of the son of Bhure Khan named Mohd. Tahir Ali. In view of the above reasons according to the defendants, the suit of the plaintiffs deserves to be dismissed as the plaintiffs had no right, title or interest in the property in dispute. The defendants further submitted that since last more than 40 years none of the plaintiffs or decedents of Azad Rasul or decedents of Mohd. Ismail Khan ever remained in possession of the properties involved in the present suit and, therefore, the contesting defendants became owner of the property by adverse possession. The defendant no. 8 Dinesh Kumar submitted written statement and stated that since he relinquished Muslim Religion and, therefore, neither he is entitled to any share in the property in dispute nor he is claiming any share. The defendants nos. 10 to 14 admitted the plaint allegations.
(3.) IN the trial court issues were framed whether the property in question was joint family property of the plaintiffs and defendants, whether the plaintiffs are entitled to seek partition by meets and bounds and are entitled to the possession of the property from the defendants, whether the property in dispute were given to Bhure Khan by deceased Rahim Khan in the year 1958 by oral Hibba which was followed by the memorandum of Hibba dated 6th Sept. , 1968, whether the defendants become owner of the property by adverse possession and whether the defendant no. 8 relinquished his share in the property. IN addition to above an issue for prohibitory injunction and on the question of court fees was also framed by the trial court. In the trial court the plaintiffs produced PW-1 Azad Rasul who is plaintiff no. 1, PW-2 Mohd. Suleman, who is plaintiff no. 2, PW-3 Nazim Ali, PW-4 Vinod Kumar, PW-5 Mohd. Ali Saddiki and PW-6 Anil Kumar - hand writing expert. In support of plaintiffs' case, the plaintiffs produced letter Ex. 1 written by defendant no. 5 - Mohd. Faruqe, Ex. 2 the letter written by deceased Bhure Khan, letter Ex. 7 written by defendant no. 1 Mohd. Ibrahim Khan dated 13. 2. 1997 and hand writing exports report Ex. 14 was also produced. From the side of defendants, the defendant no. 7 Zenab gave her statement as DW-1 and defendant no. 2 Tahir Ali also appeared in the witness box. The defendants also produced DW-3 Umrao Khan, DW-4 Ahmed Khan, DW-5 Tahir Khan and DW-6 Kale Khan. The defendants also produced copy of the memorandum of Hibba as Ex. A/1. It appears from the facts that substantially there was no dispute about the fact that the property was originally belonging to Rahim Khan and he died in the year 1969. In view of the above in fact issue no. 1 was not very much necessary issue in the light of even pleadings of the parties. Be that as it may be, while deciding issue no. 1, the trial court held that the property is joint family property. The joint family property, the concept which is applicable to joint Hindu family property but that finding will be of no consequence in view of the fact that whatever the nature of the property in the hands of any of the party of the suit, it is not disputed that in case Hibba is not accepted then all the parties have share in accordance with the Mohammedan law governing Sunnis. Therefore, the issues nos. 4 and 5 are the most important and crucial issues by which the defendants' claim that the plaintiffs lost their right to claim any share in the property. ;