Sk. Saifuddin And Another vs Sk Nurul Huda
2023 Latest Caselaw 7192 Cal

                IN THE HIGH COURT AT CALCUTTA

                  CIVIL APPELLATE JURISDICTION

                               APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE HARISH TANDON
               And
THE HON'BLE JUSTICE PRASENJIT BISWAS



                               SA 133 OF 2022
                                    With
                                CAN 1 of 2022
                                     &
                                CAN 2 of 2022



                        Sk. Saifuddin and Another
                                  - versus -
                                Sk Nurul Huda


For the appellants         :      Mr. Abir Lal Chakravorti, Adv.
                                  Sk. Hedayatullah, Adv.




Judgment on                :     17.10.2023



Prasenjit Biswas, J:-

      1.     Both the Courts below have decided the case against the

appellants/defendants.

      2.     Plaintiffs filed the suit against the appellants/defendants

praying for partition in respect of the suit properties. It is stated by the
                                       2




plaintiffs that they are the owners of 9/20th shares and rest shares

belonged to the defendants and they are possessing the same jointly. The

entire suit property belonged to one Mohiruddin Sheik and after his

death his one son, namely, Abdul Hai and three daughters, namely,

Zamila, Rahima and Ramicha got the shares of the properties as per

Mohammadean Law of Succession. One of the three daughters of

Mahiruddin Sheik, namely, Rahima died intestate and her share was

devolved upon her only daughter Mashkura Bibi and the remaining

share went to her brother Abdul Hai. Accordingly, Abdul Hai became the

owner of 1/28th share and his two sisters became owners of 1/48thshare

each. Thereafter, Abdul Hai transferred his entire share to Panchkori

Das by dint of registered deed of sale dated 19.11.1958 and in turn

Panchkori sold out his purchased share in the suit property to Sahila

Bibi on 26.06.1980 who again in turn sold her entire property to the

plaintiff on 18.12.1991. It is also the case of the plaintiff that Zamila Bibi

and Maskura Bibi who had 9/14th and 1/10th shares respectively in the

suit property sold the same to Hasnahara Begum who in turn, sold her

entire share to the defendant No. 2 and in the same way Ramicha Bibi

sold her 9/48th share to the defendant No. 1.

       3.     As per case of the plaintiff, he becomes owner to the extent

of 9/28th share and defendants have 11/28th share in the suit property

and they are possessing the same jointly. As per contention of the

plaintiff that R.S and L.R R.O.R. is erroneous and as the plaintiff is

facing difficulty in possessing his share in the suit property jointly and

the defendants was not agreeable to make the schedule property
                                      3




partitioned, so under compelling circumstances, he knocked the door of

the Court by filing a suit with a prayer for making the suit property

partitioned by metes and bounds in respect of their shares as stated

above. Defendants/Appellants contested the suit by taking plea that the

suit is not maintainable as the property in question had already been

partitioned between Abdul Hai and his three sisters orally and by dint of

such oral partition, Zamila Bibi and Ramicha Bibi got 8 ana shares each

in the suit property and as such, there is no existence of co-sharership

in between them. It is stated by the defendants/appellants that Zamila

                  5
Bibi sold out 15 decimals of land to Hashnahara Begum by dint of
                  8

registered deed of sale on 15.06.1972. It is the specific case of the

defendant that the said Rahima Bibi, her daughter Mashkura and Abdul

Hai did not have any share in the suit property and as such no title was

passed by the sale deed executed by Abdul Hai to Panchkori Das and

consequently, no title was passed by deed executed in favour of Sahila

Bibi   and similarly   from said Sahila      Bibi   to the   plaintiff.   The

defendants/appellants took stand point on the fact that the property

purchased by Panchkori, Hashnahara Begum, Sahila Bibi and plaintiff

are all void, illegal, fraudulent, and collusive and not acted upon and no

title irrespective of those properties have been transferred to the

purchasers.

       4.     At the time of hearing learned Counsel appearing for the

appellants submitted before us that the plaintiff/respondent has no

locus-standi to file the case in respect of the suit property with a prayer

for partition as the same has already been partitioned between the heirs/

legal representatives of the original owner Mahiruddin Sheik orally. So,

there is no existence of co-sharership in between the plaintiff and the

defendants.

5. An individual can certainly acquire title to an item of

property, if it has fallen to his share in a partition. If the partition is

through a decree of a Court or a written document, filing of the decree of

the document, as the case may be, would go a very long way in

establishing the title. If, on the other hand, the partition is oral, the

evidence to prove it can be adduced. Such evidence may comprise of the

deposition of the persons, who were allotted shares or those acquainted

with the partition or the revenue records that reflect the partition.

6. In the instant case, except stating that the suit property

has already been partitioned between Abdul Hai and his three sisters

orally and by such partition Zamila Bibi and Rahima Bibi got 8 anas

share each in the suit property and the other co-sharers got nothing in

suit property in the said partition,these appellants did not elaborate the

manner in which the partition has been taken place. The written

submission filed by the defendants/appellants is blissfully silent in this

aspect.

7. Appellants No. 2, Sheik Kibria as DW1 stated in his

evidence that he could not say whether the suit property is joint property

or not. He further contradicted by stating that amicable partition took

place between Abdul Hai and her three sisters, namely, Zamila, Rahima

and Ramicha. He further stated that Rahima predeceased her father

namely Mohiruddin Sheik. It further appears that defendants purchased

the suit property from the daughter of Rahima Bibi and took plea that

the mother of Maskura predeceased her father, the original owner. The

entire defence stands upon the plea of oral partition in between the heirs

and legal representatives of Mahiruddin Sheik. But they have utterly

failed to examine any person and there is also no documentary proof in

respect of the partition as stated by them, and, accordingly, it cannot be

held that there was oral partition as alleged by the

appellants/defendants. Under Section 101 of the Evidence Act, the

burden of proof to prove the partition was upon the defendant and under

Section 106 of the Evidence Act, the burden was also on the defendants

to show that separate possession of their shares of the suit properties

were given to each of them in accordance with their shares. However, in

order to establish the said fact apart from their words the

defendants/appellants did not adduce any documentary evidence to

show that there is an oral partition in between the heirs and the legal

representatives of Mohiruddin Sheik.

8. Admittedly, there is neither any deed of partition on record

nor any writing set out any partition and under these circumstances, in

order to prove the contention of the defendants that there was oral

partition in between the predecessor-in-interest of both the parties, the

defendants/appellants failed to discharge the burden of proof that oral

partition ever took place in between the heirs of the original owner

namely Mohiruddin Sheik.

9. We do not find any discrepancy in the finding of Trial Court

and the first Appellate Court. The appellants have failed to establish

their right through partition as allegedly made in between the heirs of

Mohiruddin Sheik. It is admitted position that parties to the suit had

derived their shares from the heirs of Mohiruddin Sheik. It is true to

state that oral partition is valid in law but the oral partition should be

proved in the manner known to law and that is acted upon by the

conduct of the parties. There is no cogent evidence adduced by the

appellants/defendants to prove that there was oral partition and it was

acted upon by the parties. In the absence of any substantiating evidence

the questions of law are answered against the appellants.

10. From the discussions made above, we do not find any merit

in the instant appeal or any involvement of the substantial question of

law. The appeal is, thus, dismissed.

11. Consequently, connected applications, if any, are also

hereby dismissed as disposed of.

12. There shall, however, be no order as to costs.

13. Urgent Photostat certified copies of this judgment, if applied

for, be made available to the parties subject to compliance with requisite

formalities.

I agree.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)