Patna High Court Raj Mohammad Mian Ansari & Or vs Fuleman Mian

 
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Patna:IN THE HIGH COURT OF JUDICATURE AT PATNAFirst Appeal No.471 of 1980Against the judgment and decree dated 23.4.1980 passed by the 3 rd Additional Subordinate Judge, Siwan in Title Suit No. 254 of 1976/ 97 of 1979.=========================================================== Raj Mohammad Mian Ansari and others.... .... AppellantsVersusFuleman Mian and others.... .... Respondents=========================================================== Appearance :For the Appellants : Mr. D.P. Sharma, Advocate. Mr. Kamal Pd. Rai, Advocate.For the Respondents :Mr. Gopal Pandey, Advocate.Mr. Shambhu Prasad, Advocate.=========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOOORAL JUDGMENTDate: 28-01-2013Mungeshwar 1. The defendants have filed this first appeal against the Sahoo, J.judgment and decree dated 23.2.1980 passed by the learned 3 rd Additional Subordinate Judge, Siwan in Title Suit No. 254 of 1976/ 97 of 1979 whereby the learned trial court decreed the plaintiffs respondents' suit for partition.2. The original plaintiff Fuleman Mian filed the aforesaid title suit praying for partition to the extent of his two ana share in the suit propery.3. The plaintiff claimed the aforesaid relief alleging that the Patna High Court FA No.471 of 1980 dt.28-01-2013 2 property belonged to the joint family is in joint possession of the parties. Garibullah Mian and Ali Mardan Mian were the pattidars. Out of them Garibullah Mian died issueless before R.S. but prior to his death he gifted portion of the suit property to his wife Most. Basmatiya as such her name was recorded in R.S. khatiyan. However, she also died issueless after making an oral gift to Jhapas Mian and Ali Mardan Mian. Accordingly, the share of Jhapas Mian is half and the share of Ali Mardan is half. They came in joint possession of the property. Jhapas Mian had two wives. From the first wife he had got four sons and from second wife Most. Batuliya he had got a son Fuleman who is the plaintiff. The decendant i.e. the son and decendant from the first wife are the defendant in the suit. There is unity of title between the parties and the property is joint possession of the parties.4. The defendants appellants filed contesting written statement. Besides taking various legal and ornamental plea mainly the defendants appellants contented that the plaintiff Fuleman Mian is not the son of the Jhapas Mian through his second wife Most. Batuliya rather he is the son of Hussaini Mian. The defendants are in possession of the suit property ousting the plaintiff as such the appellants have acquired title by adverse possession. The plaintiff is Patna High Court FA No.471 of 1980 dt.28-01-2013 3 stranger to the plaintiff.5. On the pleadings of the parties the trial court framed following issues :-(i) Whether the suit as framed is maintainable(ii) Whether the plaintiff has got a valid cause of action for the suit(iii) Whether the court fee paid is adequate and proper(iv) Whether the plaintiff is the son of Jhapas Mian(v) Whether there is unity of title and unity of possession between the plaintiff and the defendants in respect of the suit properties(vi) Whether the defendants are entitled to the suit properties on the basis of adverse possession and ouster of the plaintiff(vii) Whether the plaintiff is entitled to the reliefs as claimed by him6. After the evidences produced by the parties, by the impugned judgment and decree the trial court decreed the plaintiffs- respondents' suit for partition recording a finding that the plaintiff Fuleman Mian is the son of Jhapas Mian.7. The...

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