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2010 DIGILAW 584 (JHR)

Jamila Bibi v. Hasmuddin Ansari

2010-05-10

N.N.TIWARI

body2010
Order This writ petition has been filed against the order dated 5.9.2005' passed by the learned Subordinate Judge-III, Deoghar in Title Partition Suit No. 145 of 2003, whereby the learned Subordinate Judge has rejecte the petition under Order I Rule 10 C.P.C. 2. The said suit was filed before the Settlement Officer, Santhal pargana at Dumka in 1999 praying relief for partition of the suit land given in the Schedule appended to the plaint. The said suit was subsequently transferred to the court of Sub-ordinate Judge, Deoghar for final disposal. 3. During pendency of the partition suit, the petitioners filed a petition under Order I Rule 10 of the Code of Civil Procedure for their addition as a defendant claiming themselves to be co-sharers of the suit land being grandchildren of the recorded tenant Mahavir Mian. 4. The claim of the petitioners was that the recorded tenant Mahavir Mian died on 21.11.1998 leaving behind four sons, namely, Gohar Ali Mian, Maqbool Mian, Rahmul Mian and Sultan Mian and one daughter, namely, Sanjiman Bibi. Interveners are the sons and daughters of said Sultan Mian and Sanjiman Bibi. Sanjiman Bibi died in the year 1998 but the plaintiff-respondents falsely and maliciously mentioned that Sanjiman Bibi died in the year 1968 only in order to make out a ground for depriving the petitioners' legitimate right and share in the property, since they are co-sharers, they are necessary party in the partition suit as their presence are necessary for effective adjudication of the controversy in the suit. 5. The plaintiff-respondent opposed the petition contending that Usman Mian died during lifetime of Sultan Mian. Usman Mian predeceased his father. The Intervener-petitioner nos. 1 to 4 being the grandsons of the Sultan Mian have no right of inheritance under Muslim law. Their claim of share and possession over the suit land is without any basis. The survey Khatiyan which shows their possession in respect of the suit land is not final. The other petitioners being the sons and daughters of Sanjiman Bibi have also no right and share in the property as Sanjiman Bibi predeceased her father-Mahavir Mian. The petitioners, therefore, are not required to be added as a party in the partition suit. 6. The survey Khatiyan which shows their possession in respect of the suit land is not final. The other petitioners being the sons and daughters of Sanjiman Bibi have also no right and share in the property as Sanjiman Bibi predeceased her father-Mahavir Mian. The petitioners, therefore, are not required to be added as a party in the partition suit. 6. Learned court below accepting the contention of the plaintiffs and almost deciding the issue which ought to have been decided in the suit held that in the present suit, parties are governed by Mohammad Law and since Usman Mian predeceased his father Sultan Mian, the grandchildren of Sultan Mian had no right of inheritance. Sons and daughters of Sanjiman Bibi has also no right of inheritance as Sanjiman Bibi predeceased her father. Learned trial court while holding so, observed that it was an admitted case that Usman Mian and Sanjiman Bibi predeceased their respective fathers.• 7. I find that there is no admission of the petitioners on the record admitting that Sanjiman Bibi predeceased her father. There is also no evidence and material on record to that effect. On the contrary, it is admitted position that the petitioners are the grandchildren of the recorded tenant of Mahavir Mian. Whether their respective father died before the death of Mabavir Mian/Usman Mian is a controversy to be adjudicated upon and decided on the basis of the evidence in the trial of the suit, as the said fact is not admitted as observed by learned court below. 8. In view of the above, learned court below has committed serious error in rejecting the petitioner's prayer of their addition as a party in the said partition suit. The observation and ground of rejecting their prayer is perverse and without any legal basis. It is no. denied that the petitioners are grandchildren of the recorded tenant Mahavir Mian, they are not strangers. The date of death of their respective father before accrual of their right of share in the property is not admitted as erroneously observed in the impugned order. Their presence in the suit as such is necessary for effective adjudication of the controversy involved in the suit. Learned court below has committed serious error in rejecting the petitioners' prayer on the ground which has no basis. 9. The impugned order is, thus, set aside. The writ petition is allowed. Their presence in the suit as such is necessary for effective adjudication of the controversy involved in the suit. Learned court below has committed serious error in rejecting the petitioners' prayer on the ground which has no basis. 9. The impugned order is, thus, set aside. The writ petition is allowed. The petitioners' petition for their addition as a party in the Partition Suit No. 145 of 2003 stands allowed. 10. There is no order as to cost.