Dismissed

Samim Ahmad v. Md. Sahwaz and Ors.

Patna HC5 Oct 2016SA/106/2014

Case brief

AI extract

What is this about?

In this second appeal against a suit for partition, the High Court dismissed the appeal. The court held that the lower courts' concurrent findings that there was no established prior partition and that the plaintiffs had title to the purchased area were reasonable. The non-joinder of Mauli Shah's descendants was rejected as they had no interest in the specific 13 dhur area claimed.

What the court decided

AI extract

Samim Ahmad Vs Md. Sahwaz and Ors. — Partition | Patna HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.106 of 2014

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=========================================================== Samim Ahmad S/o Late Md. Rijwan Ahmad resident of Village- Mobarakpur, Tola Hasanpur, P.S. Birpur, District- Begusarai .... .... Appellant Versus 1. Md. Sahwaz 2. Md. Shazad 3. Md. Shahanwaz Sons of Md. Akhatar all residents of Village Lakhminia, P.S. Ballia, District- Begusarai 4. Md. Islam S/o Israil resident of Village- Satanpur, P.S. Ujjiyarpur, DistrictSamastipur 5. Md. Khursheed Alam 6. Md. Nasim 7. Md. Firddaus 8. Md. Shakil 9. Md. Vakil Serial no. 5 to 9 are Sons of Late Ishmale null 10. Bibi Khursida Khatoon w/o Md. Sahjad 11. Bibi Chandwa w/o Munna Khan 12. Bibi Najma 13. Bibi Safaque Bano D/o Late Ismail 14. Bibi Hafiza Khatoon w/o Md............................. 15. Bibi Hasibo Khatoon w/o Md. Kazim Serial nos. 14 & 15 are daughters of Md. Shagir Shah 16. Md. Mojim 17. Md. Hakim sons of Late Nafisa Khatoon and Late Md. Kazim 18. Md. Rakim 19. Most. Haseeba w/o Late Md. Kazim 20. Mahmuda @ Buda w/o Late Md. Kazim 21. Gausi 22. Aarin 23. Nisu 24. Munna Serial no. 21 to 24 are sons and daughters of first wife of Late Md. Kazim 25. Shahnaz D/o Late Md. Kazim from Mahmuda All residents of Village Begusarai Town, Jama Maszid ward no. 12, P.S.- Town, District- Begusarai .... .... Respondents =========================================================== Appearance : For the Appellant/s : Mr. Jitendra Kishore Verma For the Respondent/s : Mr. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT

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Date: 05-10-2016

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Patna High Court SA No.106 of 2014 dt.05-10-2016

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Heard Mr. J.K.Verma, learned counsel for the

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appellant .

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The defendant is the appellant in this appeal against the judgment and decree of affirmance granting the decree to the plaintiff as prayed.

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The plaintiffs filed the suit for partition of 11 dhur 7 dhurki including the frontage of the house out of Schedule-A land described in the plaint.

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The factual matrix of the case demonstrates that the 2 ½ katha of land with house was recorded in Survey Plot No. 1218 under Khata No. 154 as gair majarua khas land in possession of Mauli Shah and his descendants . It was the case of the plaintiffs that Minnat Sah had got an area of 13 dhur land and house out of the aforesaid land in his share which has been described in Schedule –A of the plaint. Minnat Shah died leaving behind two sons Md. Ismail and Md. Islam and two daughters Hafiza and Hasiba. Md. Ismail died leaving behind six sons and three daughters. Md.Islam was impleaded as defendant no.2 in the suit. Naziba died leaving behind four sons and one daughter. Another daughter Hasiba has also been impleaded as defendant in the suit. The plaintiff claimed to have purchased the area of 11 dhur 7 dhurki out of Schedule –A land from all the heirs (defendant 2^nd party) of Minnat Sah except Md.

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Patna High Court SA No.106 of 2014 dt.05-10-2016

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Islam (defendant no.2) . It was further case of the plaintiff that Md. Islam had illegally sold an area of 3 dhur 5 dhurki which was beyond his share to the defendant no.1 Shamim Ahmed and it was alleged that the defendant no.1 forcibly wanted to take possession of the entire frontage of the house which also belonged to the vendors of the plaintiff. The suit was contested only by the defendant no.1 who asserted inter alia that in private partition the defendant no.2 was allotted share out of which he has sold 3 ¼ dhur with house by sale deed dated 15.05.2005. It was also asserted that the amicable partition took place between the defendant no.2 and his cosharers (descendants of Minnat Shah including the defendant no.2) in the year 2001 itself and therefore there was no scope for partition of the suit land and house as claimed by the plaintiff.

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Both the courts below have concurrently come to the conclusion that the contesting defendant has failed to establish the previous partition among the descendants of Minnat Sah and has also failed to establish that the defendant no.2 was allotted 3 ¼ dhur which he had sold to him . The courts below further also found that the plaintiff is entitled to partition of his purchased area of 11 dhur 7 dhurki. The suit was accordingly decreed and the appeal thereafter by the defendant no.1 has been dismissed by the impugned judgment and decree.

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Patna High Court SA No.106 of 2014 dt.05-10-2016

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Mr.Verma, learned counsel appearing for the appellant has firstly submitted that the suit filed by the plaintiff was essentially a suit for declaration of title and therefore all the heirs of Mauli Shah were required to be made parties. Elaborating the submissions, it has been pointed out that according to the case of the plaintiffs itself the 2 Khata 10 Dhur land and house of S.P. No. 1218 was recorded in the possession of Mauli Shah and therefore in the suit for partition of 11 dhur 7 dhurki out of Plot No. 1218 by the plaintiffs as purchasers, all the coshareres of the said plot were necessary parties . It has been further contended that both the courts below have not properly considered the pleadings and evidence on behalf of the parties and the findings therefore as recorded are vulnerable. It has also been submitted that the judgment passed by the appellate court suffers from non-compliance of the requirements envisaged under Order 41 Rule 31C.P.C.

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After considering the submissions and the perusal of the judgments of both the courts below , it is manifest that both the plaintiffs and the contesting defendant were the purchasers from the descendants of Minnat Sah who according to the case of the plaintiff had got 13 dhur of land and house out of S.P.No.1218 . The fact that an area of 2 katha 10 dhur was recorded in the name of Mauli Sah and his descendants out of which Minnat Sah had got 13 dhur has been

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Patna High Court SA No.106 of 2014 dt.05-10-2016

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admitted by the contesting defendant in his written statement. In view of this specific admission by the contesting defendant that the area of 13 dhur out of S.P.No. 1218 belonged to Minnat Sah, there is no room for the contention on behalf of the appellant in this appeal that all the cosharers of S.P.No.1218 i.e. the descendants of Mauli Sah were necessary parties to the suit. This view is also reinforced by the reason that neither the plaintiffs nor the defendants have made claim over an area beyond 13 dhur as described in Schedule-A of the plaint and it is also not the case of the contesting defendants that any person other than the descendants of Minnat Sah has got right, title, interest or possession in the suit land measuring 13 dhur . This Court therefore does not find substance in the submission on behalf of the appellant that the suit must have failed for non-joinder of the descendants of Mauli Sah as they were necessary parties to the suit.

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It is further also manifest from the averments made by the contesting defendant in his written statement that there is no denial to the genealogy of the family of Minnat Shah as given by the plaintiff and there is also no assertion that the vendors of the plaintiffs had got no title in 13 dhur of the suit land out of which the plaintiff has claimed to have purchased 11 dhur 7 dhurki . Further, in response to the plaintiffs allegation that Md. Islam vendor of the contesting defendant has sold land in excess of his share to the contesting

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Patna High Court SA No.106 of 2014 dt.05-10-2016

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defendant, it has been specifically pleaded by the contesting defendant that his vendor Md. Islam, in amicable partition with his co-sharers, has been given 6 ½ dhur of land in his share . Both the courts below on scrutiny of pleadings and evidence of the parties including the deposition of the contesting defendant examined as D.W.11 have come to the conclusion that the contesting defendant has failed to establish that his vendor Md. Islam has got 6 dhur 10 dhurki land in his share. It has further been also found that Md. Islam the vendor of the plaintiff was entitled to only 1 ½ dhur in his share out of the total 13 dhur of land with house. After considering the sale deeds (Ext.1 series) the courts have further also found that the plaintiff has got title over 11 dhur 7 dhurki of land out of 13 dhur as described in ScheduleA of the plaint. The findings of the courts below have been recorded on the basis of evidence which were acceptable and could have been relied upon.

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The impugned judgment by the appellate court below also shows the appellate court below was alive to the issues arising between the parties in the suit and has considered the material evidence and as well as the reasons assigned by the trial court. This Court does not find any perversity or unreasonableness in any manner in the judgment of affirmance by the appellate court below.

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The issues arising in the suit has been concluded by

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Patna High Court SA No.106 of 2014 dt.05-10-2016

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concurrent finding of facts by both the courts below. The submissions on behalf of the appellant has substantially centered around reappreciation of evidence to upset the concurrent findings of fact. The possibility of another view on the same set of evidence cannot be a substantial question of law in a second appeal.

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For the aforesaid reasons and discussions, this Court does not find any substantial question of law arising for consideration

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in this appeal, which is, accordingly, dismissed.

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(V. Nath, J)

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Nitesh/-

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AFR/NAFR	NAFR
CAVDATE	NA
Uploading Date	20.10.2016
Transmission Date

Samim Ahmad v. Md. Sahwaz and Ors.

Case brief

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Samim Ahmad v. Md. Sahwaz and Ors.

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