VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the defendants -appellant has been preferred against the impugned judgment and decree dated 27.1.2003 and 31.3.2000/22.4.2000 respectively passed in Title Appeal No. 10 of 2000/9 of 2002 by N. Mishra, 1st Additional District Judge. Godda whereby and whereunder the judgment and decree of the tried Court passed in Title Partition Suit, No. 13 of 1999 were set aside and the appeal was allowed and the case was remitted to the trial Court under Order XLI, Rule 23 -A of the Code of Civil Procedure for the re -trial of the whole suit by setting fresh issues on giving opportunity to the parties to adduce evidence.
(2.) THE plaintiffs -respondent had filed the said suit for partition of the suit property detailed in Schedule -A of the plaint claiming 10 annas share; therein by carving out their separate takhata through the process of the Court and delivery of possession in respect thereof. The case of the plaintiffs -respondent, in brief, is that the suit land detailed in the schedule of the plaint stands recorded in the name of Sk. Rahman in the cadastral survey records of right. Said, Sk. Rahman died issueless leaving behind his widow Bibi Mangli besides his widow mother Bibi Nashiba and a step -sister Bibi Bashiran and they succeeded the suit property as per their respective shares under the Muslim Law i.e. his mother and step -sister each inherited 6 annas share and his widow inherited 4 annas share therein and they were in separate cultivating possession over the land in suit. It is alleged that Bibi Nashiba and Bibi Mangli remained joint cultivating 10 annas share in the suit land. Bibi Mangli also died issueless and as she was Jointly living with Bibi Nashiba, her mother -in - law, the said Bibi Nashiba inherited the entire land i.e. 10 annas share and the suit land remained in her cultivating possession till her death in the year 1982. The case of the plaintiffs -respondent is that after the death of Bibi Nashiba. the plaintiff - respondent being the son of the brother of Bibi Nashiba succeeded the said 10 annas property as per the Muslim Law and came in cultivating possession over the same, but the defendants being the descendants of Bibi Bashiran aforesaid began to create some disputes in respect thereof, which Jed to a proceeding under Section. 144 of the Code of Criminal Procedure which was converted into a proceeding under Sec.145 of the Code of Criminal Procedure and a Receiver was appointed during the pendency of the said proceeding which ,ultimately was dropped and the plaintiffs -respondent and the defendants -appellant came in possession of their respective shares. Since there is ill feelings between the parties in absence of metes and bounds partition of the suit land, criminal cases have taken place between them and hence the necessity for the suit.
(3.) THE case of the defendants -appellant, inter alia, is that SK. Kasmali died prior to the cadastral survey leaving behind his widow Nashiba, a son Sk. Rahman and a daughter Bibi Bashiran and all have inherited the properties and Bibi Nashiba had 2 annas share and remaining 14 annas share developed on Sk. Rahman and Bibi Bashlran in the proportion of 2/3rd and 1 /3rd but at the time of cadastral survey Sk. Rahman was minor and as such Bibi Nashiba got his name recorded in the cadastral survey records of right representing all the heirs of Sk Kasmali and thus Sk. Rahman cannot be said to be the sole owner of the suit land. It has specifically been alleged that Bibi Bashiran is the full sister of Sk. Rahman. born of Bibi Nishiba and she was in possession with Sk. Rahman prior to tile cadastral survey and even after the cadastral survey over the suit land. It is alleged that Bibi Mangli died issueless in the lifetime of Sk. Rahman and the entire suit land was in possession of Bibi Nashiba and Bibi Bashiran, who were all along joint. It is also alleged that Bibi Nashiba is not the daughter of Sk. Laskari the predecessor - in -interest of the plaintiffs -respondent rather, she is the daughter of Asgari. It is alleged that Asgari died much prior to the cadastral survey leaving behind the widow Bibi Hamida and a daughter Bibi Nasiba only and therafter Bibi Hamida re -solemnized her marriage with Laskari. It is also alleged that Bibi Hainida also died without having a son or daughter born of Laskari and there after Sk. Laskari aforesaid remarried, from which he had three soils, Sk. Suddi, Sk. BaLtu and Sk. Juman and the plaintiffs are the descendants of Sk. Suddi, Sk. Battu and Sk. Juman respectively. It is also alleged that Bibi Nashiba was neither the full sister of Sk. Suddi. Sk. Battu and Sk. Juman nor con -sanguine sister of Sk. Suddi, Sk. Battu and Sk. Juman aforesaid and they had predeceased Bibi Nashiba and the 20/5/2014 Page 97 Bimla Varta Versus State Of Jharkhand plaintiffs have never succeeded the suit property nor they have any interest therein. It is alleged that Bibi Nashiba died in the year 1979 and Bibi Bashiran died in the year 1981 and on death of Bibi Nashiba, her daughter Bibi Bashiran succeeded her mother 'sinterest in the suit land and on death of Bibi Bashiran her son Sk. Suleman inherited the entire suit land the defendants - appellants are the sons of Sk. Suleman and they are in exclusive possession of the suit land.;