JUDGMENT : FARJAND ALI, J. Greivance of the case- 1. By way of filing this Civil First Appeal under Section 96 CPC, the appellants seek to challenge the judgment and decree dated 28.10.2004 passed by the learned Additional District Judge (Fast Track) No. 2, Jodhpur in Civil Original Suit No. 85/2003 (Old No. 35/1997), titled Mehrunisa & Others vs. Rahmat & Others, whereby the learned Trial Court has partly dismissed the suit filed by the plaintiffs. Facts of the case- 2. The breif facts of present case is that the respondents–plaintiffs instituted a suit on 21.05.1997 before the trial court seeking accounts, rendition of accounts, recovery of rent and a decree of permanent injunction, asserting that both the plaintiffs and defendants Nos. 1 to 4 are the legal heirs of deceased Nyaz Mohammad and that, as per para 4 of the plaint, the brief particulars of the said properties, according to the plaintiffs/appellants, are as follows: (A) Property No. 01 – “Nyaz Building” Nai Sadak, Jodhpur, comprising House No. 04 along with the adjoining open land and Shop Nos. 09, 10 and 11. According to the plaintiffs/appellants, as stated in paragraph 4 of the plaint, a dispute relating to partition among the legal heirs of late Hussain Bux had earlier arisen with respect to this property, being registered as Civil Suit No. 138/1992. It is averred that the parties ultimately effected an oral partition of the estate of late Hussain Bux outside the court, and a Memorandum of Partition dated 05.04.1991 was thereafter drawn to record the terms of such oral settlement. As per the said oral partition, the plaintiffs/appellants have asserted that Property No. 01 fell to the share of late Nyaz Mohammad. (B) Property No. 02 – House No. 21-B, Pink House, Shiv Road, Ratanada, Jodhpur. (C) Property No. 03 – Plot Nos. 09, 10, 38 and 39 situated at Raikabagh, Jodhpur, which have been stated by the plaintiffs/appellants to be joint properties of the parties. 3. (B) Property No. 02 – House No. 21-B, Pink House, Shiv Road, Ratanada, Jodhpur. (C) Property No. 03 – Plot Nos. 09, 10, 38 and 39 situated at Raikabagh, Jodhpur, which have been stated by the plaintiffs/appellants to be joint properties of the parties. 3. That apart from these immovable properties, deceased Nyaz Mohammad also left other movable assets including the partnership firm Nyaz & Company, with respect to which no accounts were ever furnished, though the plaintiffs are entitled to their share; further, the plaintiffs claimed entitlement to half share in the business assets and profits of Quality Dyeing & Chemical Store, presently run by Mansoor Ahmed and his sons under the name “Quality Shoes,” for which accounts should also be rendered. 4. The plaintiffs asserted that despite repeated requests for partition of Nyaz Mohammad’s share in the ancestral/joint estate, the defendants refused and were threatening to mortgage or sell the properties; hence the suit for accounts, partition, and permanent injunction. 5. Defendants Nos. 1, 2 and 4, in their written statement, denied the suit as not maintainable, contending that the alleged memorandum of partition was unregistered and unstamped and hence could not affect immovable property, and that all legal heirs of late Hussain Bakhsh were necessary parties; that four plots in Raikabagh had already been sold by registered sale deeds and possession handed over; that the father of the plaintiffs had started his separate firm “Hussain & Company” in 1987 and raised no objection regarding accounts of Nyaz & Company during his lifetime till his death on 29.11.1993, therefore the plaintiffs had no right to seek such accounts; and that the plaintiffs had knowledge that Nyaz Mohammad had already executed and registered a Will on 09.03.1987 bequeathing all his movable and immovable assets in favour of defendants Smt. Rehmat, Mansoor Ahmed, Anita and Ameer Bano, with the full consent of deceased Khurshid Ahmed, who had married against his father’s wishes. It was thus pleaded that the suit deserved rejection under Order VII Rule 11 CPC and that the court lacked jurisdiction. 6. On the basis of the pleadings of the parties contained in the plaint and the written statement, the learned Trial Court framed the following issues for adjudication:— 1. Whether the properties described in paragraph 4 of the plaint are joint properties of the plaintiffs and defendants, in which they are co-owners and co-sharers? 6. On the basis of the pleadings of the parties contained in the plaint and the written statement, the learned Trial Court framed the following issues for adjudication:— 1. Whether the properties described in paragraph 4 of the plaint are joint properties of the plaintiffs and defendants, in which they are co-owners and co-sharers? — Onus: Plaintiffs 2. Whether the plaintiffs are entitled to rendition of accounts and to receive their respective shares in the business carried out in the firms M/s Nyaz & Company and M/s Quality Dyeing & Chemical Store (Quality Shoes)? — Onus: Plaintiffs 3. Whether the plaintiffs are entitled to rendition of accounts of the rent realised by the defendants from the joint properties and to receive their respective shares therein? — Onus: Plaintiffs 4. Whether late Nyaz Mohammad had executed a Will dated 09.03.1987 bequeathing his movable and immovable properties in favour of Smt. Rehmat, Mansoor Ahmed, Aneesa and Ameer Bano, and, if so, whether the plaintiffs are thereby disentitled from claiming any share or seeking partition? — Onus: Defendants Issue 4-A: Whether, as stated in paragraph 6 of the plaint, the plaintiffs have 9/32 share in the suit properties described in paragraph 4 of the plaint? Issue 4-B: Whether the court-fee paid by the plaintiffs is insufficient? Issue 4-C: What is the effect on the present suit of the fact that Plot Nos. 9, 10, 38 and 39 situated at Raikabagh, Old Public Park, were, as pleaded in para 4 of the written statement, allegedly sold years earlier through registered sale deeds to various purchasers after handing over physical possession, to the knowledge of the plaintiffs? Issue 4-D: Whether, in view of the pleadings in para 4 of the written statement regarding the alleged invalid and unenforceable partition memorandum, the requirement of compulsory registration and stamping, and the assertion that all legal heirs of late Hussain Baksh are necessary parties, the suit of the plaintiffs is not maintainable? Issue 4-E: Whether, as pleaded in para 14 of the written statement, the suit of the plaintiffs is barred by law and liable to be dismissed for want of cause of action? Issue 4-F: Whether a suit for partition can be jointly maintained along with a claim for rendition of accounts of the alleged partnership firms? Issue 4-G: Whether the present suit for partition and rendition of accounts of the alleged firms is barred by limitation? Issue 4-F: Whether a suit for partition can be jointly maintained along with a claim for rendition of accounts of the alleged partnership firms? Issue 4-G: Whether the present suit for partition and rendition of accounts of the alleged firms is barred by limitation? 7. The plaintiffs led oral and documentary evidence whereas the defendants, despite opportunity, adduced no evidence. The trial court after hearing and perusing the material on record held that the plaintiffs had a share only in Property No. 2, the “Pink House” at Ratanada, and passed a decree of partition only in respect of that property, while declining relief for the remaining properties and businesses. The present appeal has, therefore, been filed by the appellants– plaintiffs challenging the judgment and decree only to the extent it denies their share in properties other than Property No. 2 (Pink House), while accepting the findings of the trial court regarding Pink House as well as the favourable findings recorded on Issues 4-B, 4-C, 4-D, 4-E and 4-G, and partly in respect of Issues 3, 4-A and 4-F; the appeal is thus confined to the adverse findings on Issues 1, 2, 3, 4-A and 4-F, which are assailed as erroneous and contrary to law. 8. It is pertinent to note that during the pendency of this appeal, this Court had earlier passed significant interim orders owing to the prolonged pendency of the matter. On 25.09.2025, when the appeal reached Serial No.150, an octogenarian respondent personally approached the Bench seeking early disposal, highlighting that the appeal, filed in 2005, had remained pending for two decades and the decree in her favour continued to be stayed. On that day, despite the matter being called in sequence, no one appeared for the appellants in the first round, and in the second round learned counsel Shri V.D. Gaur sought adjournment on the assurance that final arguments would be addressed on the next date. Accordingly, the matter was posted for 03.10.2025. However, on 03.10.2025 as well, despite the name of appellants’ counsel being displayed on the Board and the matter being taken up twice, none appeared for the appellants. Learned Senior Counsel for the respondents, Shri R.K. Thanvi, opposed further delay, drawing attention to the order dated 05.09.2008 whereby, considering the advanced age (81 years) of the respondent, the appeal had been directed to be heard on a preferential basis. 9. Learned Senior Counsel for the respondents, Shri R.K. Thanvi, opposed further delay, drawing attention to the order dated 05.09.2008 whereby, considering the advanced age (81 years) of the respondent, the appeal had been directed to be heard on a preferential basis. 9. In these circumstances, and in view of repeated adjournments, this Court heard appellant No.3, Shri Jahid Hussain, who was present in person, granted liberty to the appellants as well as respondents to file written submissions within ten days, and upon conclusion of oral submissions, reserved the judgment. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS 10. The counsel for the appellants submitted that learned Trial Court gravely erred in assuming that an oral partition could not have occurred because the daughters of Late Hussain Baksh did not receive shares. Under Muslim Law, inheritance devolves automatically upon death by the principle of “right by death,” and Neyaz Mohammad unquestionably inherited his specific share in the disputed ‘Neyaz Building,’ which thereafter devolved upon the present parties. The Court also overlooked that the daughters, even if entitled, received their shares at the time of Hussain Baksh’s death and never raised any claim thereafter, while one daughter admittedly received and possessed her portion in the oral partition. Significantly, the respondents themselves claim possession of the red-marked portion (Ex.1) only on the basis that Neyaz Mohammad had a share, a fact never disputed by them. Ignoring these undisputed legal and factual aspects renders the impugned finding wholly perverse. 11. It was further submitted that the conclusions regarding the Memorandum of Partition being doubtful and a supposed variance between pleading and proof are also unsustainable. The memorandum’s execution stands proved through oral evidence; it was admittedly in the defendants’ possession, and an adverse inference ought to have been drawn for their failure to produce it. A clerical error typing “1991” instead of “1994” cannot defeat the consistent case that the compromise and memorandum were executed in 1994, especially when PWs 1, 3 and 4 all parties to the oral partition, categorically proved the same and the defendants led no rebuttal. Hence, the impugned judgment suffers from serious legal and factual infirmities and deserves to be set aside. WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS 12. Hence, the impugned judgment suffers from serious legal and factual infirmities and deserves to be set aside. WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS 12. The counsel for the respondents submitted that the trial Court rightly held that the plaintiffs failed to prove the existence of the alleged registered firm Nyaz & Company or any entitlement to its accounts, as no registration certificate or partnership deed was produced, and therefore no claim lies under Section 69(2) of the Partnership Act,1932. The plaintiffs also led no evidence to show Khurshid Ahmed’s share in “Quality Dyeing & Chemical Store” or “Quality Shoes” run from Shops No. 7 and 8, and thus no right to accounts was made out. The trial Court correctly found that the only proved fact was the tenancy of Respondent No. 7 in Pink House, Ratanada, entitling the plaintiffs only to proportionate rent from Respondent No. 2, while their claims regarding Shops No. 9–11 of Nyaz Building and accounts of the above businesses failed. The Court also rightly held that only Pink House was proved as the self-acquired property of Nyaz Mohammad and divisible among heirs; no share of the plaintiffs was proved in Nyaz Building or the Raikabagh plots. It further found that no memorandum of partition or mutual settlement was proved; the suit was not barred; maintainability existed only for rent accounts of Pink House; and limitation was within time. Applying Sunni (Hanafi) law, the Court correctly determined the heirs’ respective shares and passed a preliminary decree for partition of Pink House, rejecting all other reliefs. Hence, the respondents contended that the findings of the trial Court are lawful, well-reasoned and error-free, and the appeal deserves dismissal. 13. Heard learned counsels present for the parties and gone through the materials available on record. COURT’S OBSERVATIONS 14. Having heard learned counsel for the parties and upon meticulous examination of the pleadings, oral and documentary evidence, as well as the findings recorded by the learned Trial Court, this Court proceeds to re-appreciate the material in exercise of powers under Section 96 CPC. The duty of the appellate court is to reassess both facts and law, testing each finding of the Trial Court against the settled principles of evidence such as onus probandi, affirmanti non neganti incumbit probatio, and the principle that he who asserts must prove. 15. The duty of the appellate court is to reassess both facts and law, testing each finding of the Trial Court against the settled principles of evidence such as onus probandi, affirmanti non neganti incumbit probatio, and the principle that he who asserts must prove. 15. A central aspect of Issue No. 1 relates to the plaintiffs’ assertion that three categories of properties, namely—(i) Nyaz Building at Nai Sarak, (ii) Pink House at Ratanada, and (iii) Raikabagh Plots Nos. 9, 10, 38 and 39—were joint estate of late Nyaz Mohammad and thus liable to partition. The learned Trial Court partly adjudicated this issue, and upon fresh scrutiny by this Court, such adjudication is found to be correct both in fact and law. A. Nyaz Building – Not Proved as Partible Property 16. As regards Nyaz Building, the Trial Court correctly held that the plaintiffs failed to establish that late Nyaz Mohammad had any inheritable or successor-based share in the said property. If, as alleged, the property had devolved upon him from his parents, then the plaintiffs were required to prove not only the title of the parents but also that a prior partition among all heirs of the parents took place and resulted in a specific allotment to Nyaz Mohammad. No such foundational evidence was produced. 17. In absence of proof that Nyaz Mohammad himself held any title, possession, or demarcated share in the Nyaz Building, the plaintiffs could not maintain a prayer for partition. This conclusion of the Trial Court is sound and legally unassailable. The Trial Court was justified in holding that the plaintiffs failed to satisfy even the basic requirement of proving the predecessor’s title, and consequently, the claim for partition of Nyaz Building necessarily collapses. B. Pink House, Ratanada – Proved as Self-Acquired Property of Nyaz Mohammad 18.With respect to Pink House, Ratanada, the Trial Court rightly noted that the property was purchased by late Nyaz Mohammad through a registered sale deed dated 17.02.1961, and no challenge to this fact was established in evidence. Upon his death, the property devolved upon his legal heirs under Sunni (Hanafi) law. 19.Therefore, the Trial Court’s finding that Pink House alone stood proved as the partible estate of late Nyaz Mohammad is fully supported by the material on record. The plaintiffs, being natural successors, were entitled to a preliminary decree of partition to the extent of their established shares. 19.Therefore, the Trial Court’s finding that Pink House alone stood proved as the partible estate of late Nyaz Mohammad is fully supported by the material on record. The plaintiffs, being natural successors, were entitled to a preliminary decree of partition to the extent of their established shares. This Court finds no infirmity in the Trial Court’s approach. C. Raikabagh Plots – Plaintiffs Failed to Prove Ownership of Nyaz Mohammad 20. As regards the third category - Raikabagh Plots Nos. 9, 10, 38 and 39, the plaintiffs merely asserted that these were joint and undivided properties of late Nyaz Mohammad. The defendants, on the other hand, specifically rebutted this claim by stating that these plots were sold long back (around 1985) to third parties. 21. Significantly, the plaintiffs led no documentary evidence whatsoever- neither title documents nor revenue records, establishing that the said plots ever belonged to late Nyaz Mohammad or were in his possession. Even assuming, arguendo, that defendants’ claim of sale was also unproved, the law is well-settled that the plaintiff must succeed on the strength of his own case and cannot take advantage of lacunae in the defence. 22. Having independently scrutinised the record, this Court finds that the plaintiffs wholly failed to discharge the onus under Issue No. 1. The Trial Court, in Paragraphs 13 to 49 of its judgment, has elaborately, microscopically, and convincingly evaluated each piece of oral and documentary evidence before rejecting the plaintiffs’ claim. There is thus no reason to interfere with the Trial Court’s finding that the Raikabagh plots are not proved to be the properties of late Nyaz Mohammad and therefore not liable to partition. D. Other Findings of the Trial Court 23. The conclusions of the Trial Court regarding the unproved nature of the partnership firm “Nyaz & Company” and the alleged businesses “Quality Dyeing & Chemical Store” and “Quality Shoes” are also fully justified. In absence of registration documents, accounts, licences, shop records, or partnership deeds, no right to rendition of accounts could be sustained. 24. Similarly, the findings on maintainability, cause of action, limitation, non-joinder, and the absence of proof regarding the alleged memorandum of partition are upheld. The learned Trial Court’s reasoning is coherent, evidence-based, and free from perversity or misapplication of law. E. Conclusion 25. 24. Similarly, the findings on maintainability, cause of action, limitation, non-joinder, and the absence of proof regarding the alleged memorandum of partition are upheld. The learned Trial Court’s reasoning is coherent, evidence-based, and free from perversity or misapplication of law. E. Conclusion 25. Upon holistic appreciation of all materials on record, this Court finds that the Trial Court’s judgment is meticulously reasoned, firmly supported by evidence, and does not suffer from any legal or factual infirmity warranting appellate interference. The preliminary decree passed by the Trial Court in respect of Pink House, Ratanada is correct, whereas the dismissal of the plaintiffs’ claims regarding Nyaz Building, Raikabagh Plots, and the alleged business accounts is also legally sound. 26. Accordingly, this Court fully affirms the judgment and decree dated 28.10.2004 passed by the learned Additional District Judge (Fast Track) No. 2, Jodhpur. The appeal, being devoid of merit, stands dismissed. 27. The record be transmitted back forthwith. 28. The stay application or all other pending applications, if any, stand disposed of.