D.G.R.PATNAIK, J. - (1.) THIS appeal is directed against the judgment dated -31.08.1999, and its corresponding decree dated 13.09.1999, passed by the Sub -Judge Vth, Ranchi in Partition Suit No. 172 of 1996, whereby the suit for partition as filed by the appellant/plaintiff was dismissed. The suit properties described in Schedule A and B to the plaint are located at two different places and both claimed by the plaintiffs as joint property of the plaintiff and the defendants.
(2.) THE appellant/plaintiff had prayed for partition of the suit properties on the basis of pleadings stated as follows: - The plaintiffs and the defendant are guided by the Hanafi School of Muslim law. The Schedule "A" property was originally owned by Sheikh Nizamuddin, who had transferred the property to his wife, Bibi Hafizan by way of a Registered sale -deed and after acquiring a valid right, title and interest over the property, she has remained in peaceful occupation and possession of the suit property. Later, Bibi Hafizan transferred the aforesaid Schedule "A" property in favour of her two sons, namely, Sheikh Shamsuddin and Sheikh Mohinuddin. Consequent upon the transfer made in their favour by way of a registered sale deed, the said property came to be recorded in the joint names of both the brothers, namely, Sheikh Shamsuddin and Sheikh Mohinuddin. The two brothers had a [F.A. No. 135 of 1999] sister, namely, Bibi Kulsum Khatoon and before her death, she had transferred her share in the joint family property in favour of her aforesaid two brothers. The plaintiffs/appellants are the surviving heirs of Sk. Shamsuddin who had died in the year 1972. The plaintiffs have claimed that the property described in Schedule "B" to the plaint is also joint property to which they had succeeded after the demise of their father, late Sheikh Shamsuddin. Since the plaintiffs were at that time minors, both the minors as well as the properties were looked after by their uncle Sheikh Mohinuddin. Though no partition of the joint family properties was made, the plaintiffs and the defendants have been using and occupying the properties and living therein, according to their convenience. Later, the plaintiffs claimed partition of the suit properties but upon their request being turned down by the defendants, the plaintiff filed the Partition suit on 09.07.1996 for getting a declaration of their half share, not only in the properties described in schedule "A" and "B" of the plaint, but also in the income earned by the defendant from the five shops, which he had let out on rent. The defendant/respondent had contested the suit, inter alia, on the following grounds: - (i) That the suit properties already stood partitioned through Panchayat between the plaintiffs and the defendants, on 28.02.1992, under which the Schedule A property was given to the share of the defendant and the Schedule "B" property was given to the share of the plaintiffs and, therefore the plaintiffs' claim for further partition is misconceived and not maintainable. (ii) The property described in Schedule "A" had originally belonged to Md. Nizamuddin, father of the defendant, who had transferred the Schedule "A" property in favour of his wife Bibi [F.A. No. 135 of 1999] Hafizan by registered sale deed dated 16.09.1964 (Exhibit -3). (iii) It is incorrect and false to state that the defendant's sister, Bibi Kulsum Khatoon had forgone her share in favour of her brothers. (iv) It is also incorrect and false to state that 19 square feet 13 Chak purchased by the defendant from his own fund exclusively, was given to his brother, Sheikh Shamsuddin out of love and affection. (v) The shops located within the Schedule "A" property which had fallen in the share of the defendant, came to be exclusively occupied by him and thereafter, let out on rent.
(3.) ON the basis of the rival pleadings, the learned court below had framed the relevant issues, as follows: - (i) Is the suit maintainable as framed? (ii) Has the plaintiff's cause of action was valid for the suit? (iii) Is the suit barred by the law of limitation? (iv) Is the suit barred by the non -joinder of necessary parties? (v) Whether the suit is under -valued? (vi) Whether the suit is barred by the principles of estoppel, waiver and acquiescence? (vii) Whether the suit properties have already been partitioned between the parties on 28.02.1992 by the Panchayat and the Schedule "A" properties were allotted to the defendant and Schedule "B" to the plaintiff and since then the parties are enjoining exclusive possession of their allotted share? (viii) Whether plaintiffs are entitled to a decree of partition as prayed? (ix) To what other reliefs which the plaintiffs are entitled to? ;