Unknown vs 2 - Jamiruddin Mia
2022 Latest Caselaw 4436 Jhar

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
              S.A. No. 46 OF 1992

1(a) - Khairat Kaji
2(a) - Rahiman Bibi
2(b) - Masal Khatoon
2(c) - Isha Khatoon
2(d) - Dil Afroj Khatoon
2(e) - Fateja Khatoon
2(f)(i) - Reshma Bibi
2(f)(ii) - Minor Mehjabin
2(f)(iii) - Minor Apsari
2(f) (iv) - Minor Afja
2(g) - Siddique Ansari
2(h) - Khusboo Khatoon
3 - Samsher [email protected] Samsher Ansari
4 - Kulsum Bibi
5(i) - Aziz Ansari
5(ii) - Lailun Khatoon
5(iii) - Nazir Ansari
6 - Atoni Khatoon
7(a) Chutni Bibi
7(b) - Md. Mazid Ali
7(c) - Md. Samimullah Ansari
7(d) - Md. Hasimuddin Ansari
7(e)(i) - Habhija Bibi
7(e)(ii) - Najrul Haque
7(e)(iii) - Majharul Haque
7(e)(iv) - Nasima Khatoon
7(e)(v) - Nusrat Jahan
7(f) - Md. Habibullah Ansari
7(g) - Rahiman Bibi
8-        Expunge vide order dt. 28.01.1993
9(i) - Expunge vide order dt. 25.09.2019
9(ii) - Abdul Islam Ansari
9(iii) - Gulam Rasool Ansari
9(iv) - Safina Bibi
10(i) - Shamser Ali Kazi
10(ii) - Rahmat Ali
10(iii)(a) - Idzan Bibi
10(iii)(b) - Md. Barkat Ali
10(iii)(c) - Chirag Ali
10(iii)(d) - Sahrunnisa
10(iii)(e) - Maimun Bibi
10(iv) - Mustri Bagum
11 - Sarajuddin Mian
12 - Abdul Mazan
13 - Abdul Hussain
14 - Minor Jalan Ansari
15- Khatoon Bibi
16(a) - Jaitun Bibi
16(b) - Asraddin
16(c) - Nasir Ansari
16(d) - Khalil Ansari
                                    2


16(e) - Imtiyaz
16(f) - Sabiran Bibi
16(g) - Jaibun Bibi
17 - Kurban Mian
18 - Jahiman Bibi
19 - Sherun Bibi
20 - Khemia Bibi
21 - Diljan Ansari
22 - Hajrat [email protected]
23 - Mahammad Suleman
24 - Murad Hussain
25- Haliman Bibi
26 - Sunda Bibi
                                            ...   ...   Appellants
                                Versus

1-       Md. Kamruddin Ansari
2 (a) - Mehrunisha
2(b) - Rehan Ansari
2(c) - Hafiz Murshid Alam
2(d) Ashma Khatoon
2(e) - Shakila Bano
3-       Hyder Ali
4(a) - Sabana Khatoon
4(b) - Nasim Ansari
4(c) - Sohail Ansari
4 (d) - Nadeem Ansari
5(a) - Imam Akhtar
5(b) - Md. Irshad Ahmed
5(c) - Sahid Hussain
5(d) - Tahmina Khatoon
5(e) - Nusrat Jahan
6(i) - Aliman Bibi
6(ii) - Mafizuddin Ansari @ Mahizuddin Ansari
6(iii) - Nayeemuddin Ansari
6(iv) - Suleman Ansari
6(v) - Asiruddin Ansari
6(vi) Sayeed Ansari @ Munwa
6(vii) - Sahabuddin Ansari
6(viii) - Tohrai Nuni Bibi
7(a) - Md. Yunus
7(b) - Md. Ayub Ansari
7(c) - Md. Samaiun Ansari
7(d) - Md. Israfil Ansari
7(e) - Mehrun Nisha
7(f) - Jaigun Nisha
8(a)     Saukhena Bibi
8(b) - Jamjamullah Ansari
8(c) - Rizwan Ansari
8(d) - Zulekha Bibi
8(e) - Sabiran Bibi
9-       Ena Bibi
10 - Minor Chota Samim Ansari
11 - Minor Alimuddin Ansari
                                  3


12 - Jamiruddin Mia
13 - Kurban Mia
14 - Piroli Mia
15 - Halima Bibi
16 - Alti Bibi
17 (a) - Daud Mian
17(b) - Kasimuddin Ansari
17(c) - Hazra Khatoon
17(d) - Nazra Khatoon
18(a)(i) - Abdul Quyum Ansari
18(a)(ii) - Mustkim Ansari
18(a)(iii) - Md. Shamim Ansari
18(a)(iv) - Nashim Ansari
18(b) Kamruddin Ansari
18(c) - Gayasuddin Ansari
18(d) - Basiran Bibi
18(e) - Zamilal Bibi
18(f) - Hamidan Bibi
19(a) - Sairun Bibi
19(b) - Saimun Bibi
19(c) - Gendia Bibi
19(d) - Jaimun Bibi
19(e) - Lailun Bibi
19(f) - Hasina Khatoon
19(g) - Muslim Ansari
20 (a) Jaitun Bibi
20(b) Kasimuddin Ansari
20(c) Momina Khatoon
21(a) - Rahiman Bibi
21(b) - Mahinddin Ansari
21(c) - Azimuddin Ansari
21(d) - Ashiran Bibi Ansari
21(e) - Putua Bibi
21(f) - Alti Bibi
21(g) - Almusni Bibi
21(h) - Nahara Khatoon
21(i) - Satma Khatoon
22       - Sabiran Bibi
23(a) - Safique Ansari
23(b) - Rafique Ansari
23(c) - Khurkhuri Bibi
24       - Saliman Bibi
25(a) - Abdul Ansari
25(b) - Mustaqim Ansari
25(c) - Safique Ansari
25(d) - Latifan Khatoon
26(i) - Jaigun Khatoon
26(ii) - Saimul Khatoon
27       - Barki Nuni
28(a) - Md. Ali Hussan Ansari
28(b) - Md. Ishaq Ansari
28(c) - Md. Salimuddin Ansari
28(d) - Janil Bibi
28(e) - Md. Qazir Ansari
                                      4


29(i) - Jaitun bibi
29(ii) - Nasiman Bibi
30(a) - Md. Rahmatullah Ansari
30(b) - Md. Insan Ansari
 30(c) - Md. Akhtar Hussain Ansari
 30(d) - Md. Mobin Ansari
 30(e) - Md. Imtiyaz Ansari
 30(f) - Khairun Bibi
 30(g) - Rahiman Bibi
 31(a) (a) - Islam Ansari
 31(a)(b) - Sahauddin Ansari
 31(a)(c) - Siraj Ansari
 31(a) (d) - Riyaz Ansari
 31(a)(e) - Akhtar Ansari
 31(a) (f) - Tinku Ansari
 31(b) - Hanif Ansari
 31(c) - Sarfuddin Ansari
 31(d) - Smt. Injari Bibi
 31(e) - Smt. Fatima Khatun
 32 - Alti Bibi
 33(a) - Hamidan Bibi
 33(b) - Akhtar Ansari
 33(c) - Asgar Ali
 33(d) - Mahidan Bibi
 34(a) Joharan Bibi
 34(b)(i) - Alti Bibi
 34(b)(ii) - Dil Mohammad Ansari
 34(b)(iii) - Noor Islam
 34(b)(iv) - Jahiruddin Ansari
 34(b)(v) - Rahimam Bibi Ansari
 34(c) - Majiruddin Ansari @ Bigu
 34(d) - Yunus Ansari
 34(e) - Manir Ansari
 35(i) - Md. Alam Ansari
 35(ii) - Md. Chirajuddin Ansari
 35(iii)(a) - Terun Bibi
 35(iii)(b) - Muntaj Ansari
 35(iii)(c) - Imran Ansari
 35(iii)(d) - Nazia Khatoon
 35(iv) - Mainum Bibi
 35(v) - Saimun Bibi
 35(vi) - Jaibun Nisa
 36(a) - Ashiran Bibi
 36(b) - Sarfuddin Ansari
 36(c) - Samsuddin Ansari
 36(d) - Shamsher Ansari
 36(e) - Siraj Ansari
 36(f) - Sakhina Khatoon
 36(g) - Sera Bano
 36(h) - Jainab Bibi
 37(a) - Allauddin Mian
 37(b) - Abdul Wahid Mian
 37(c) - Abdul Hafiz
 37(d) Salim Mian
                                    5


   37(e) - Ainul Ansari
   37(f) - Lailun Khatoon
   37(g) - Sauran Khatoon
   38(a) - Amina Khatoon
   38(b) - Sirajuddin
   38(c) - Azma Khatoon
   38(d) - Maimuna Khatoon
   39 - Mumtaj Bibi
   40(a) - Fatema Bibi
   40(b) Manzoor Alam
   40(c) - Israil Ansari
   40(d) - Hamida Khatoon
   41 - Minor Doud Mia
   42 - Minor Nafaz Mia
   43 - Minor Jainul Mia
   44 - Minor Merum Khatun
   45 - Minor Tairun Khatun
   46 - Dariman Bibi
   47(i) - Ayesha Khatoon
   47(ii)(a) - Hawa Bibi
   47(ii)(b) - Sajid Ansari
   47(ii)(c) - Soyeb Ansari
   47(ii)(d) - Salma Khatoon
   47(ii)(e) - Nasima Bibi
   47(ii)(f) - Sajda Bibi
   47(iii) - Abid Mian
   47(iv) - Kuthri Bibi
   48 - Barku Mia
   49 - Abdul Mia
   50 - Quayum Mia
   51 - Idris Mia
   52(a) - Khairun Nisha
   52(b) - Rajauddin Ansari
   52(c) - Ziauddin Ansari
   52(d) - Zarina Khatoon
   52(e) - Sajauddin Ansari
   52(f) - Parvej Ansari
   52(g) - Arjum Khatoon
   52(h) - Sirajuddin Babar
   52(i) - Qishan Ara
   53 - Kundia Bibi
   54(a)(i) - Ali Hussain
   54(b) - Taifun Bibi
   54(c) - Serun Bibi
   55 - Jabir Mia
   56 - Altu Mia                    ... ...  Respondents
                             ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants : M/s Manjul Prasad, Sr. Advocate & Baban Prasad, Advocate For the Respondents : M/s A.K.Sahani & Pankaj Verma, Advocates

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C.A.V. ON 07.09.2022 PRONOUNCED ON 07.11. 2022

1. The Appellants are the Defendants, who have preferred appeal against the Judgment dated 08.10.1991 whereby and whereunder the judgment and decree dated 20.05.1978 passed in Title (P) Suit no 37 of 1976 has been affirmed in first appeal by the learned Court below.

2. The parties shall be referred by the placement in the suit and shall include their legal representative substituted from time to time.

Plaintiffs filed the suit for a decree of partition and separate possession of the lands described in Schedules B & C of the plaint in accordance with their shares and also for a declaration that entries in the Record of Rights with regard to the share of the parties in respect of the plots in Schedules B and C of the plaint were wrong.

PLAINTIFFS' CASE

3. The Plaintiffs' suit in brief is that Jadu Mian was the common ancestor of parties. The Relationship between parties have been shown in the Genealogical Table at Schedule A of the plaint. Ancestors of the parties took settlement of several plots by jalsasan pataa and continued to possess the said plots in the month of Magh,1262 B.S as Thikabands on payment of consolidated annual rent of Rs 15/-. The descendants of Jadu Mian had partitioned their lands except some puratan parti land and a tank and the original ancestral house before the cadastral survey operation. In accordance with the partition made between the parties during the last Cadastral survey, lands were recorded in different khatas bearing nos. 6, 7, 26, 25, 50, 36 and 4 of the said Mouza Bhitia, except the ejmal lands which were recorded in, khata Nos. 8 and 38 and being jointly possessed by all the co-sharers. The consolidated rental was also divided after the partition. During the last CS Survey the said khata No. 8 of Mouza Bhitia consisting of 3 plots, the detailed description of which is given in Schedule B was recorded in the name of Khedu Mian, Piru Mian, Panchu Mian, and Hydat Mian sons of Laskari Mian, having four shares , Sahidan Mian and Farijan Mian having one share, khetu Mian having one share and Mehru Mian having one share.

4. Similarly Khata no. 38 consisting of 9 plots the detailed description of which is given in Schedule C was recorded in the last survey settlement in the name of Khedu Mian, Piru Mian, Hydat Mian and Panchu Mian four shares, Sahidan and Farzan Mian having one shares, Mehru Mian having six shares and Khetu Mian one share.

5. Out of the land of Khata no. 38, plot nos. 2589 and 2589/2694 belonged to one Salem Qazi and Hussaini Mian respectively, but in record of rights the said plots were wrongly recorded in the name of the ancestors of the plaintiffs and the defendants. Salem Qazi challenged the said entries in Title Suit no. 68 of 1926 in the Munsif Court which was decreed in his favour. Similarly Hussaini Mian got the entries recorded with regard to plot no. 2589/2694 corrected.

6. It is averred that entries with regard to the plots mentioned in Khata 8 and 38 shown in Schedules B and C are not correct. During the last cadastral survey settlement operation Khetu Mian, the father of the plaintiffs was lying seriously ill and as such he could not attend before the settlement officials and as such the correct share of the plaintiffs father in the aforesaid khatas could not be made known to the settlement authorities. The co-sharers of Khetu Mian namely Mehru Mian, Khedu Mian, Piru Mian, Panchu Mian and Hydat Mian fraudulently made wrong statement before the settlement authorities with regard to the share of the co-sharers in respect of these two kathas and got wrong entries made regarding the share of the respective parties. It is contended on behalf of the plaintiffs that Mehru Mian was entitled to half share, the sons of Laskari Mian to 1/6th share, Mungia Bibi the widow of Rengho Mian and her daughter viz. Butia Bibi where jointly entitled to 1/6th share and the father of the plaintiffs were entitled to 1/6th share. As such the shares of the respective co-sharers were wrongly shown in the record of rights with respect to khata nos.8 and 38 of Mouza Bhitia. Despite the wrong entries the parties are in possession over the land as per their share.

7. After the death of Butia Bibi and Mungia Bibi the plaintiffs became jointly entitled to 1/4th share of the properties described in Schedules B & C. The plot no.2479 of khata no.8 is a tank and plot no.2480 of khata no.8 is a bandh arh, plot no.1077 is a Bastu land and has been recorded as Ghar-angan. The said three plots are the Ejmal plots of the co-sharer.

8. Plot nos. 2599, 2474, 2478, 2598 of Khata no. 38 are Ejaml land of the co- sharers and have been recorded as such in the record of rights. Plot nos.2600 and 919 have been recorded in possession of Panchu Mian and Hydat Mian though in fact the said plots being Puratan Parti land are being still possessed jointly.

9. In the lands shown in schedule B and C the plaintiffs have 1/4th share and the defendants nos.28 to 44 have 1/2 share and the remaining defendants have 1/4th share.

10. The tank and its Arh viz. plot nos.2479 and 2480 of khata no.8 being impartible and as such the joint possession of the parties be maintained.

11. The cause of action arose in October, 1976 and on various dates. DEFENDANTS CASE

12. Defendant nos. 3, 5, 8 to 11 and 15 to 18 filed joint written statement. Defendants no 43 and 25 also had filed written statement. As per defendants genealogical table was not correct. All the ancestral properties had been partitioned between the predecessor of the plaintiffs and defendants before the survey settlement operation except the tank Known as Jadu Bandh, it's ridge and the ancestral house recorded in Khatian no.8 the lands recorded in Khatian No.38 was also partitioned before the survey settlement operation but some of the plots remained joint and somewhere possessed separately according to convenience of the parties.

13. It is further contended that plaintiffs have absolutely no right, title or interest in the properties recorded in khatian no.8 and they are not in joint possession of the same with the defendants. So far, the lands recorded under khatian no.38 are concerned there has been subsequently complete partition by metes and bounds between the parties about 15 or 16 years ago and the parties are in separate possession of the same.

14. The averments of the plaintiffs that Khetu Mian was seriously ill at the time of settlement operation and taking advantage of that, wrong entries were made by making false statement before the survey authorities has been denied. In fact when draft record of rights was prepared and it was found that three plots of khatian no.8 were recorded jointly in the names of Khedu Mian, Piru Mian, Panchu Mian and Hydat Mian having four shares Shahadan Mian and Farzan Mian having one share, Khetu Mian having one share and Mehru Mian having one share, an objection was filed under section 83 of the CNT Act being objection no. 257/83 before the settlement authorities, by khetu Mian the father of the plaintiffs and Mehru Mian the grandfather of these defendants challenged the wrong entry in respect of the shares noted in the draft record of rights of khatian no.8 but the said objection was disallowed. Thereafter the heirs of Mehru Mian filed a suit being Title Suit no.64 of 1925 in the court of Munsif at Dhanbad claiming their half share in the tank appertaining to khatian no.8 and the said suit was decreed on compromise on 24.11.25 by which the predecessor of the answering defendants got five annas interest in the aforesaid tank. Since the plaintiff's father, Khetu Mian had no

interest in the tank he did not join as plaintiff in the said suit not to be contest the same. Accordingly by virtue of the aforesaid compromise the defendants including these answering defendants have been coming in joint possession of the said tank. The ancestral house on plot no.1077 of khatian 8 is however in exclusive possession of these defendants. (There appears to be typographical error in the year of objection No. 257/83 or T.S. No. 64/25 in the written statement)

15. The entries with regard to the shares of the parties in respect of the record of rights of khatian no.38 were correctly made and there has been complete partition by metes and bounds on the basis of which the parties are separate possession in accordance with their share is noted in the record of rights. The parties are also dealing with those properties separately and have also made transfers inter se between the co-sharers.

16. The plaintiffs have absolutely no interest in khatian no.8 and were not entitled to one fourth share of the properties recorded in khatian nos.8 and 38 of mouza Bhitia.

17. Plot nos.2479, 2480 and 1077 of khatian no.8 are not the Ejmal plots of all the co-sharers but those properties are joint properties of defendants nos.1 to 27. Since there has been a complete partition between the parties by metes and bounds on the basis of which the parties were in separate possession in accordance with their share noted in the record of rights there cannot be occasion for further partition of the said properties. Parties were dealing with properties recorded in khatian no.38 separately are no longer held in possessed jointly by the co-sharers but they are in separate possession since the aforesaid partition took place about 15 to 16 years ago.

18. The tank and its ridges recorded in plot no.2479 and 2480 respectively of khatian no.8 are in joint possession of defendant nos.1 to 27.

19. Defendant nos. 3, 5, 8, 9, 10, 11, 15, 16, 17 and 18 have contested the suit by filing joint written statement. It is mainly contended that the common ancestors of the plaintiffs and defendants had partitioned all their properties except some of the properties which were kept joint. In accordance with the said partition the heirs came in possession of their respective properties. The genealogical table has also been disputed. It is further case of these defendants that on 10th Falgun 1305 B.S. Mehru Mian, the predecessor in interest of defendant nos.28 to 44, Rengu Mian and Bali Mian sold their interest in the tank known as Jadu Bandh to Laskar Mian the predecessor in interest of defendants nos. 1 to 27 by registered sale deed.

20. Objection was filed by Khetu Mian against the finally published record of rights which was registered as Case No.257/83. The Tanaja was described in favour of the recorded persons as the claim of sale deed was accepted by virtue of which the ancestors of the plaintiffs lost their claim. Shortly thereafter there was Title Suit No.64 of 1925 filed by Mehru Mian in which his five annas share was declared. The land of khata number eight and 38 is coming in possession of the parties according to their shares as recorded in the survey record of rights and there had been transfer inter se and also to outsiders in respect of the land. The defendant no.8 to 10 had filed a partition suit against their co-sharer which was withdrawn when the parties agreed for an amicable partition. The said suit had been filed in the year 1958 and after withdrawal of the same, there was a complete partition of the land of khata no.38 in the year 1960.

21. Defendants nos. 28 to 31, 35 & 26 have filed a separate written statement wherein it has been contended the ancestral properties had been partitioned long before the cadastral survey except the tank and its ridge recorded in khata no 8. Khata no. 38 partitioned before the cadastral survey, but some of the plot had been kept joint. The plaintiff had got no interest and parties were coming in possession of such land. The story of khetu Mian being ill at the time of cadastral survey record of rights has been denied.

22. Defendant no.43 Benga Mian filed a separate written statement. It has been pleaded that the share of Mehru Mian had been recorded correctly in respect of the land of khata no.28, but it was not so with respect to the share of other sharers. His grandfather Mehru Mian had 8 annas share in the land of khata no.8. The plaintiffs were entitled to get one fourth share in the land of khata nos.8 and 38 as claimed by them.

23. Defendant no.25 also filed a separate written statement which was adopted by defendant no.24 as well. The suit has been contested on the ground that the plaintiffs had sold the right title and interest in the tank to Laskari Mian. Subsequently, the heirs of Mehru Mian got 5 annas share and predecessor in interest of defendant no.24 and 25 got 11 annas interest in the said tank by virtue of the decree passed in Title Suit no. 64 of 1925. Chand Mian S/o Khedu Mian acquired interest in the suit land by means of the registered sale deed dated 26.6.19 70 and became owner of the extent of 2/21 share in the land described in schedule B of the plaint. They also purchased land from Asraf Ali, Chand Mian and Samsuddin appertaining to khata no.38. As per the case of these defendants,

plaintiffs have got no share upon khata no.8 and only 1/12th share in Khata no.38 which had been kept joint.

24. On the basis of the pleadings of the parties the following issues have been framed :

I. Have the plaintiff got any valid cause of action for the suit? II. Is the suit as framed maintainable?

III. Is the suit barred by law of limitation?

IV. Is the suit bad for non -joinder of necessary parties?

V. Is the suit barred by the principle of estoppel, waiver and acquiescence? VI. Is the court fee paid by the plaintiffs sufficient?

VII. Are the plaintiffs entitled to get a decree for partition in respect of the properties described in Schedules B and C of the plaint, and if so to what extent?

VIII. Are the entries of the survey record of rights with respect to the shares of the parties in respect of suit plots described in schedules B and C of the plaint correct?

IX. To what relief or reliefs, if any are the plaintiffs entitled?

25. The learned trial Court decreed the suit, recording finding that the plaintiffs were entitled to get a decree for partition in respect of the properties in Schedules B and C of the plaint to extent of 1/4th share, barring 44 Dec. of land of plot No. 2600 which has been admittedly donated to the District Board, Dhanbad for construction of a school building according to versions of both parties. The survey entries of khata Nos. 8 and 38 of Mauza Bhitia were wrong. It was a simple suit for partition in which the plaintiffs were required to pay court fee on market value of the suit property. As per Issue Nos. 3 and 5 it was also admitted that the properties involved in the suit were ancestral as between co-owners, there can be no adverse possession in case of co-owner. Possession of one co-share is deemed in the eye of law possession of all co-shares. The suit was not barred by any general or special law of limitation. As per issue no IV, Yusuf Main had deposed that Mehru Main had three daughters and that all of them had died during his life time. Mobarak, who is defendant no. 35 has also stated in his evidence that the heirs of the daughter of Mehru Main never claimed any interest in the ancestral land of their maternal grand-father, Mehru Mian. It has come in his evidence that Badlu and Chhotu, sons of Rajia Bibi are still alive. Mobarak never got possession over the suit land, nor over other ancestral properties of the parties. Khetu Main had four

daughters and that their heirs are alive. The suit was decreed on contest with costs against the contesting defendants and ex-parte without costs against the rest. The plaintiff was entitled to get 1/4th share in the properties described in Schedules B and C of the plaint barring 44 decimals of land of plot no 2600 over which admittedly a school building exists.

26. Learned Court of First Appeal concurred with the findings of the trial Court and dismissed the appeal. It was held that ancestors of the plaintiff had not done any act which could have diminished their shares in the lands of khata nos. 8 and 38 and the entries showing diminished interest of Khetu Mian ancestor of the plaintiff mentioned regarding the lands of Khata nos. 8 and 38 was not correct. The defendants/ appellants case were highly contradictory regarding the time of partition of the lands of those khatas which were admittedly joint at the time of cadastral survey. Various sale deeds executed by different defendant's interest and various documents showing criminal and civil litigation between the parties interest, went simply to show that they had been possessing the land separately according to their convenience and all these did not prove and hindrance in allowing the prayers of the plaintiff for partition as sought for in this case. The defendants/ appellants tried to show that the claim of the plaintiff for partition was barred by limitation. It was contended on their behalf that the claim of partition had been preferred in challenging the survey entries if the years 1924-25 and therefore the suit was barred by limitation. The cause of action for filing the present suit as a matter of facts was not the wrong survey entries rather difficulty experienced by the plaintiff just before filing of the present suit in enjoying joint possession over the suit land. The contention of the defendants appellants that three daughter of Mehru Main were necessary parties but had not been impleaded in this case was not accepted. Evidence of Yusuf Main that the daughter of Mehru Mian had died during life time of Mehru Main also of Mobarak Mian (PW..) was also that the daughter of Mehru main had not been claiming any interest in the ancestral lands. Rajia Bibi one of the daughter of Mehru Mian and four daughter of Khetu Main or their heirs were concerned. The evidence was also led that the daughters had never claimed any interest in the ancestral lands, on the basis of principle of doctrine of representation also it can be said that the suit should not fail for non- joinder of said legal heirs.

27. This appeal has been admitted to be heard on the following substantial question of law:

1. Whether the findings of the court below, with regard to the issue that the suit is bad for non- joinder of parties, is based on legal proposition?

2. Whether the principle of Doctrine of representation is applicable in the case of a Mohammedan governed by Hanafi School of Mohammedan law?

28. The scheme of O 1 and 2 clearly shows that the prescriptions therein are in the realm of procedure and not in the realm of substantive law or rights. This order deals with the joinder of parties and joinder of cause of action to some extent. The object of this provision is to avoid multiplicity of proceedings, waste of time and needless expense of the parties. The Code regards objections as to joinder of parties and frame of suit to be procedural, is further clear from Section 99 of the CPC that no decree shall be reversed in appeal on account of misjoinder of parties or cause of action unless a court finds that non-joinder is of necessary party. This is on the same principle as Section 21 which provides that even an objection to territorial jurisdiction of the Court in which the suit is instituted, is to be taken at the first instance and it has resulted in the failure of justice. The purpose of this provision is to bring before the Court at the same time, all persons interested in the dispute so that the dispute may be finally determined at the same time in the presence of all the parties without the delay, inconvenience and expenses of several actions and trials and inconclusive adjudications. Thus, mere interest of a party in the suits of litigation cannot be a true test for being impleaded.

29. There is concurrent finding of fact returned by the Courts below regarding jointness of status. The appeal has been admitted on the ground that the married daughters had not been impleaded in the suit. There is no quarrel with the legal proposition that the jurisdiction of the Court while hearing a second appeal is a limited one. Both the Courts below have concurrently held the suit was not bad for non-joinder of necessary parties. The trial Court while deciding Issue no. 4 held it had come in evidence that the daughters had not claimed any interest in the ancestral land of the parties and therefore the suit was not bad for non-joinder of necessary parties. The learned court of first appeal concurred with this finding that it had come into possession of the witnesses that they had not claimed any interest in the ancestral lands. The suit is of the year 1976 and the second appeal has been preferred in 1992. None of the daughters or their legal heirs have ever come forward to be impleaded and claim a share in the suit property. More than 56 persons have been impleaded in this appeal and only minuscule share will be allotted to any party. The Rajasthan High Court had the occasion to examine this

issue in AIR 1971 Rajasthan 274 Mohammad Subhan Vs. Dr. Mishabuddin Ahmad, wherein it has been held that in a suit by a Mahomedan heir for partition of his share is maintainable even without impleading other heirs who are not in possession. The determination of question as to who is the legal representative cannot be interfered at the appellate stage. The reason is that the shares of Mahomedan heir is definite and specified and is not a fluctuating share. It has been held in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597 at page 606 "20. The cause of action for partition of properties is said to be a "perpetually recurring one" (See Monsharam Chakravarty v. Ganesh Chandra Chakravarty [17 CWN 521 : 16 IC 383] . In Mohammedan law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Mohammedan law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law".

In view of the above, the non-joinder of the daughters or their heirs shall not be fatal to the plaintiffs' case and render the decree infructuous and ineffective.

However, as a principle of law, the doctrine of representation shall not apply to the present case.

Both the substantial questions of law are answered accordingly. The appeal is dismissed. No costs.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 07th November, 2022 AFR / AKT