Calcutta High Court (Appellete Side)
Sk. Arman Ali & Ors vs Asraf Ali Sk. & Ors on 21 September, 2022
12 21.9.2022 FAT 514 of 2015
with
Ct-08 I.A No. CAN 2 of 2016(Old CAN No. 8546 of 2016)
CAN 3 of 2017(Old CAN No. 6578 of 2017)
CAN 4 of 2017(Old CAN No. 6579 of 2017)
CAN 5 of 2017(Old CAN No. 7745 of 2017)
CAN 6 of 2020(Old CAN No. 1258 of 2020)
ar CAN 7 of 2020(Old CAN No. 1286 of 2020)
Sk. Arman Ali & Ors.
Vs.
Asraf Ali Sk. & Ors.
Mr. Sounak Mondal
... For the Appellants
Mr. Tulsi Das Ray
... For the State
The matter is appearing in today's list under
the heading "Civil Application". By consent of
the parties, accordingly, the appeal is treated as
on day's list and is taken up along with aforesaid
applications and disposed of by this common
order.
Four applications are pending since 2017
and two applications are pending since 2020.
It is submitted on behalf of the appellants
that no contact would be established for service
of the aforesaid applications upon the
respondents.
The appeal is arising out of a decree passed
by the Trial Court dismissing the suit filed by the
plaintiffs praying, inter alia, for a declaration of
title in respect of the suit schedule properties.
The plaintiffs filed the suit for partition as the
defendant no. 1 was not willing any partition by
metes and bounds. Defendant no. 1 is examined
as DW-1. 'A' schedule property is the joint
property of the parties in the instant suit. The
said schedule property was previously belonged
to the predecessors-in-interest of the plaintiffs
and defendants, namely, Amin Sk and Usman
Sk. Amin Sk had 8 annas share and Usman Sk
had 8 annas share.
On the basis of the evidence adduced by the
plaintiffs it is clear that Amin leaving behind
Lokman Sk. and Rahima Bibi, the children out of
the wedlock of his first wife, as his legal heirs
and Latif Sk. is born out of the wedlock of his
second wife, Meyatan Bibi, as his legal heir. The
first wife of Amin Sk. died during his lifetime.
After the death of Amin Sk., his sons Lokman Sk.
and Latif Sk. became the owners of 'A' schedule
property to the extent of 2 annas 16 gandas
share each and Rahima Bibi became the owner
of 'A' schedule property to the extent of 1 anna 8
gandas share. Lokman Sk. died leaving behind
his two sons, the defendant nos. 1 and 2, as his
legal heirs and successors and the share in the
suit property was accordingly devolved upon
them as per Muslim Law of Inheritance. Rahima
Bibi died leaving behind her son, Mehar Ali Sk.
and daughters, Kehatan Bibi and Mohpan Bibi
as her legal heirs and successors as per Muslim
Law of Inheritance. Subsequently, Mohpan Bibi
died leaving behind defendant nos. 4 and 5 as
his legal heirs and successors and Mehar Ali Sk.
died leaving behind defendant nos. 6 to 9 as his
legal heirs and successors and their shares in
the suit property was devolved upon them
according to Muslim Law of Inheritance. After
the death of Meyatan Bibi her only son Sk. Abdul
Latif became the owner and possessor of the
share of his mother to the extent of 1 anna and
Sk. Abdul Latif accordingly became the owner of
'A' schedule property to the extent of 3 annas 16
gandas share. After the death of Sk. Amin,
Lokman Sk., Rahima Bibi, second wife Meyatan
Bibi and Abdul Latif Sk. became the owners of 'B'
schedule property as per Muslim Law of
Inheritance. Abdul Latif Sk. died leaving behind
his wife Mst. Khadija Bibi, son Arman Ali and
daughters Mst Nazima Bibi, Mst. Jarina Islam,
Mst. Marzina Bibi as his legal heirs and
successors as per Muslim Law of Inheritance.
Usman Sk. died leaving behind defendant nos.
10 to 14 as his legal heirs and successors.
The legal heirs of Amin Sk. since deceased
and Usman Sk. since deceased had amicably
partitioned the suit properties and since then
they have been owning and possessing the suit
properties by way of amicable settlement.
It is evident from the record that DW 1 and
DW 3 corroborated the evidence of PW 1 with
regard to the factum of the genealogy shown at
page 22 of the learned Trial Court judgment. PW
1 on his evidence stated that after the death of
Amin Sk, his properties in 'A' schedule were
devolved upon his two sons, second wife and his
daughter according to Muslim Law of Inheritance
and accordingly his sons, Lokman Sk and Abdul
Latif became the owners of 2 annas 16 gandas
share each, daughter Rahima Bibi became the
owner of 1 anna 8 gondas share in 'A' schedule
properties and the wife Meyatan Bibi became the
owner of 1 anna share in 'A' schedule properties.
Accordingly, after demise of Rahima Bibi, her 1
anna and 8 gondas share in 'A' schedule was
devolved upon her son Meher Ali Sk to the extent
of ½ share and two daughters Kahutan Bibi and
Mahupan Bibi to the extent of ¼ share
collectively.
It is further evidence of PW 1 that after the
death of Meyantan Bibi, her share 1 anna share
in 'A' scheule property was devolved upon her
son Abdul Latif. So, the said Abdul Latif became
the owner of 3 annas 16 gondas share in 'A'
schedule properties and after the demise of the
said Abdul Latif Sk, the plaintiffs being the legal
heirs and successors became the joint owners of
3 annas 16 gondas share. Similarly, the
defendant nos. 10 to 14 being the legal heirs of
the deceased Osman Sk became the joint owners
of 8 annas share in 'A' schedule properties.
It appears from the evidence of PW 1, DW2
and DW 3 that their predecessor-in-interest
Amin Sk was the 16 annas owner in 'B' schedule
property and according to them, Lokman Sk and
Abdul Latif Sk became the owners of 5 annas 12
gondas share each in 'B' schedule properties.
The daughter Rahima Bibi became the owner of
2 annas 16 gondas share and the 2nd wife
Meyatan Bibi became the owner of 2 annas share
in 'B' schedule properties. It is the evidence of
the plaintiffs that after the death of Meyatan
Bibi, their deceased father Abdul Latif Sk became
the owner of 3 annas 16 gondas share in 'A'
schedule properties and 7 annas 12 gondas
share in 'B' schedule properties and after his
death, his shares in 'A' and 'B' schedule
properties were devolved upon them according to
Muslim Law of Inheritance.
The defendant nos. 2 to 14 supported the
case of the plaintiffs.
The devolution of interest, as stated in the
impugned order, is not being disputed by the
parties. However, from the evidence of DW1 it is
revealed that Mohpan Bibi, Mehar Ali Sk and one
Abdullah Sk had previously filed a title suit
being no. 218/68 before the learned Munsif at
Kalna for declaration of title as well as
declaration that R.S.R.O.R in respect of suit
properties are wrong and erroneous and the said
suit was ultimately disposed of on compromise in
terms of Solenama petition and on the basis of
this Solenama etition, Kahutan Bibi and Mohpan
Bibi were allotted 44 decimans in suit plot no.
805 of Mauza Narayanpur. It was also stated in
the said compromise petitioner/Solenama
petition that Kahutan Bibi and Mohupan Bibi
will not get any share in other suit plots save and
except the area measuring 44 decimals in plot
no. 805. In view of the said compromise petition,
Abdul Latif was allotted 8 annas share, Saukat
Ali and Asraf Ali were allotted 4 annas share
each of the properties belonged to deceased Amin
Sk. Predecessor-in-interest of the plaintiffs i.e.
Abdul Latif Sk. was the defendant no. 2 in the
suit being T.S 218/68.
The learned Trial Judge in the judgment
recorded that neither the plaintiffs nor the
defendant no. 2 have really disputed the
existence of the suit decree. In fact, the
defendant nos. 2 and 4 were the parties in Title
Suit no. 218/1968. The defendant no. 1 since
establishes his right based on the Solenama
decree passed in T.S no. 218/68 and the
plaintiffs and the defendant nos. 2 to 14 have
really disputed the suit or decree passed in the
said proceeding, we are of the view that the
learned Trial Judge in consideration of the oral
land documentary evidence has rightly dismissed
the suit.
The appeal being FAT 514 of 2015 fails and is
hereby dismissed.
In view of dismissal of the appeal, all the
aforesaid applications appearing on today's list
are also dismissed.
There will be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
