BREC030000972016

Presented on : 19­01­2016
Registered on : 19­01­2016
Decided on : 20­12­2021
Duration : 5 years, 11 months, 1 days

JUDGMENT IN PARTITION SUIT NO. 49 OF 2016

DIL MOHAMMAD & ORS.

VS.
KUPA MIA (DEAD THR. LRS.) & ORS.

DATE OF PRONOUNCEMENT

THIS 20th DECEMBER, 2021

COURT OF SH. SUMIT KUMAR SINGH

JO CODE­BR00856
CIVIL JUDGE (SD)­X, MOTIHARI, EAST CHAMPARAN
BJS, 27TH BATCH
 IN THE COURT OF CIVIL JUDGE (SD)­X, MOTIHARI
BEFORE SH. SUMIT KUMAR SINGH
PARTITION SUIT NO. 49 OF 2016
CIS NO. (PS) 26 OF 2016
IN THE MATTER OF:
DIL MOHAMMAD & ORS. ...PLAINTIFFS
VERSUS
KUPA MIA (DEAD THR. LRS.) & ORS. ...DEFENDANTS
PRESENT: ARUN KUMAR SINHA, ADVOCATE FOR PLAINTIFF
RAJEEV SHANKAR VERMA, ADVOCATE FOR DEFENDANTS

JUDGMENT
20.12.2021

1. Present suit has been filed by the plaintiff praying inter­alia for

partition of the suit property.

2. Brief facts of plaintiff's case is that one Nazir Dhuniya was the

common ancestor of the parties. He died leaving behind his son

Jhapas Dhuniya. Jhapas was married to Jumani and they had

two sons Bhola Mia and Govardhan Mia. It is the case of plaintiff

that after the death of Jhapas his sons Bhola and Govardhan

amicably partitioned their properties. Bhola was married to three

ladies. His first marriage took place with Bibi Hakikan. Out of his

first wedlock he had a son Moharrum Mia and a daughter Bibi

Sahiban. Then Bhola was married to Dhuniya. Out of his second

wed­lock he had two sons Ramzan and Kupa (defendant no. 1)

and a daughter Bibi Rabeya. Rabeya died leaving behind her son

Hafiz Mia who is defendant no. 9. Then out of his third wed­lock

Bhola Mia had four sons who are defendant no. 2 to 5.

3. It is the case of plaintiffs that all the three wives of Bhola Mia

died during his lifetime. Bhola Mia died in the year 1985. It is

further case of plaintiff that Moharrum Mia and Sahiban who

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 were son and daughter of Bhola Mia out of his first wed­lock had

already died. Moharrum was survived by his two sons and four

daughters who are plaintiff no. 1 to 6 in the present suit.

Sahiban was married to one Alizan Mia. She had two sons and

two daughters out of her wed­lock. Her all two sons and two

daughters are plaintiff no. 7 to 10 in the present suit. Sahiban

and Alizan had already died. Ramzan Mia and his wife have also

died leaving behind his three sons who are defendant no. 6 to 8.

4. It is further case of plaintiffs that the property in khata no. 63

and 103 were recorded in the name of Jhapas Dhuniya. And

property in khata 101 was recorded in the name of his wife

Jumni. After the death of Jhapas and Jumni their sons Bhola

and Govardhan partitioned their properties. Thus, the property

in schedule­II of the plaint was allotted to the share of Bhola Mia.

5. It is further case of plaintiffs that second wife of Bhola was

daughter of own sister of Hakikan (first wife). After the second

marriage behavior of Bhola Mia changed towards his first wife

and children. There were constant fights between his first and

the second wife. Hence, Hakikan decided to leave the village and

settled in Agarwa Mohalla of Motihari.

6. It is the case of plaintiffs that the since Motihari was far from the

village Godhwa and the defendants were shrewd and chronic

litigants, hence, they started to misappropriate the sale proceed

and dispute arose in payment of land revenue. Hence, the

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 plaintiffs have called for a partition which was denied. Hence, the

present suit has been filed. Plaintiffs have claimed their 3/16

share in the entire family property.

7. Defendants have filed their written­statement and denied all the

allegations of plaintiffs. They have pleaded that Bhola Mia was

never married thrice and he had only two wives namely Dhuniya

and Dhanifan. Out of his first wed­lock Bhola Mia had two sons

Ramzan Mia and Kupa Mia and three daughters namely

Kauraniya, Satahi and Lotahi. Out of the second wed­lock Bhola

had four sons Nathuni, Ishrafil, Shamim and Zalil. Ramzan died

leaving behind his three sons Halim, Razool and Muyadin and

daughter Kasidan and Sairul Khatoon. Razool had died and his

legal heirs have not been arrayed as defendants. Kupa Mia

defendant no. 1 has two sons Munaf and Abdul and three

daughters Shahidan, Nazma and Shamina. It is the case of

defendants that Hakikan was never a wife of Bhola Mia nor the

plaintiffs are sons and daughters of Bhola Mia. They have denied

any relationship with the plaintiffs. It has been contended that

plaintiffs have never paid any land revenue nor had got any

share in the proceed. Hence, the present suit has been filed.

8. Thus, on the basis of rival contention and pleadings made by the

parties following issues were settled by the Court vide order

dated 07.03.2018 to determine the real question in controversy:

i. Whether the suit as framed is legally maintainable?

ii. Whether the plaintiff has got cause of action and right to sue?
iii. Whether the suit suffers from defect of parties?

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 iv. Whether the suit is barred by law of limitation?
v. Whether the suit is hit by provision of waiver, estoppel and
acquiescence?
vi. Whether the plaintiffs are entitled to get a preliminary decree
for the partition and declaration of 3/16 share in the suit
property?
vii. Whether plaintiffs have unity of title and unity of possession
with the defendants over the suit land?
viii. Whether the plaintiff is entitled to get any other relief or
reliefs?

9. To prove their case plaintiffs and defendants have produced oral

as well as documentary evidences. Plaintiffs have examined Dil

Mohammad as PW­1, Hafiz Mia as PW­2, Tazul Ahmad as PW­3,

Azan Mia as PW­4, Mohammad Kalam as PW­5 and Ram Prasad

Chaurasaiya as PW­6.

Plaintiffs have also produced certified copy of khatiyan marked

as Ext. 1 and family member certificate issued by Circle Office,

Motihari marked as Ext. 2.

10. To support their case defendants have examined Ishrafil Mia as

DW­1, Nathuni Mia as DW­2, Rafiq Mia as DW­3, Rameshwar

Sah as DW­4, Gaffar Mia as DW­5 and Ram Bahadur Prasad as

DW­6.

At the same time defendants have also produced certified copy of

sale deed dated 03.12.1943 marked as Ext. A, certified copy of

khatiyan marked as Ext. B, sale deed dated 16.09.1980 marked

as Ext. A/1, gift deed dated 20.12.1979 marked as Ext. A/2 and

five rent receipts marked as Ext. C to C/4.

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 ISSUE­WISE FINDINGS

ISSUE NO. 6 & 7

11. The question is whether Hakikan was wife of Bhola Mia?

Plaintiffs have alleged that Bhola was married thrice and

Hakikan was his first wife. Defendants have alleged that Bhola

Mia was married twice and Hakikan was not his wife. Plaintiff

had approached this Court to seek partition on the ground that

Hakikan was a wife of Bhola Mia. Thus, onus lies on him to

prove the same. Thereafter, onus will shift on the defendants to

prove that Hakikan was not a wife of Bhola Mia.

12. To prove their case plaintiffs have relied on their oral evidence.

Plaintiff no. 1 Dil Mohammad was examined as PW­1. In his

examination­in­chief he had supported his own case. In his

cross­examination he had deposed that he had always resided in

Agarwa Mohalla of Motihari and his father died leaving with him

in the year 1990.

Note: In his pleadings it was contended that Bhola Mia had died

in the year 1985.

13. Then he had deposed that he do not know Zafar Ali Mia. He had

not seen Dhuniya Khatoon who was second wife of Bhola Mia. He

had deposed that total suit land is 5 bigha which was khatiyani

property and khatiyan contained 5 bigha land. Then he had

deposed that Bhola and Govardhan had partitioned the

properties and Bhola Mia was allotted only 3 Bigha land.

Note: Suit has been filed for about 5 bigha land, thus, his

statement is contrary to his own pleadings.

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14. Then he had deposed that Nathuni was one of the son of Bhola

Mia but he does not know anything about his legal heirs. Nor he

knows anything about the other sons of Nathuni. He had also

shown his ignorance about their marriage. He had also shown

his ignorance about the family members of Ramzan Mia. He had

also failed to depose about the family members of Kupa Mia.

Note: It is clear that the plaintiff is totally unaware of the family

members of Bhola Mia. He had shown his total lack of knowledge

about the grand sons and grand daughters of Bhola Mia.

15. Then he had deposed that he had never lived in Godhwa village.

He had also deposed that he cultivates 10 katha land in the

village which is in khata 103 but he could not tell the plot

number nor he could depose the boundary of 10 katha land. He

could not depose any of the boundary of any part of the suit

land. He had then deposed that he had let out the land for

cultivation since 1971 to one Subhan Mia. He had admitted that

he had never paid land revenue in the name of Bhola Mia. He

had deposed that he does not know anything about the

zamabandi in the name of Bhola Mia.

Note: Plaintiff no. 1 is totally ignorant of the suit land. He does

not know the description of the property. Moreover, he had

deposed that during the lifetime of Bhola Mia he had cultivated

10 katha land since 1971. This statement is not acceptable as in

a Mohammadan family it is not possible to have a right or

interest in any part of the property during the lifetime of father.

As there is no concept of unity of title and jointness of

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 possession. At the same time he had admitted that he had never

paid land revenue which is again contrary to his pleadings. Thus,

for cause of action he had pleaded that there is a dispute about

payment of land revenue. However, in his cross­examination he

had deposed that he had never paid any land revenue. As such it

cannot be said that any cause of action arose in his favor.

16. Then he had deposed that he do not know when the first wife of

Bhola Mia died. He had guessed that she might had died after

1985. He had also deposed that he had got no document in the

name and style of Hakikan w/o Bhola Mia.

Note: First wife of Bhola Mia was mother of this witness and he

does not know about her death nor he has got any document to

prove that Hakikan was wife of Bhola Mia.

Perusal of entire cross­examination of this witness shows that he

had got no or very little knowledge about the family members of

Bhola Mia. He had got absolutely no knowledge of the suit land.

He had also got no knowledge about the time of death of Bhola

Mia or his own mother. As such this witness had failed to

support his own case and failed to answer the questions in his

cross­examination. He had deposed many a thing which are

contrary to the pleadings. As such he had failed to support his

case.

17. Then the plaintiffs have examined PW­2 who happens to be

resident of Machhargaowa in Kotwa Police Station. He had

deposed that Bhola Mia was is Mausa. He had supported the

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 case of plaintiff in his examination­in­chief. In his cross­

examination he had deposed that his house is situated 25­30 KM

away from village Godhwa.

Note: this witness is not a resident of suit village.

He had then deposed that Bhola was never married in his

presence nor he could depose the year of marriage. He had also

deposed that Bhola Mia had two brothers and two sisters whose

names he could not depose. He also failed to name the sons of

Bhola Mia.

Note: Plaintiffs have pleaded that Bhola Mia had no sisters. This

witness had failed to depose the name of sons of Bhola Mia.

Thus, this witness is not a competent witness and cannot be

relied for the purpose of heir­ship of Bhola Mia.

He had then deposed that plaintiff no. 1 residing in Agarwa for

past 15­20 years. He had then deposed that he had gone to the

suit village while Bhola Mia was alive, but had never gone there,

after the death of Bhola Mia.

Note: Plaintiff no. 1 had deposed that Bhola Mia died in Agarwa,

Motihari. The statement of witness is contradictory to the

statement of PW­1. Thus, cannot be relied.

18. Then the plaintiffs have examined PW­3 who is resident of

Machhargaowa in Kotwa PS. He had deposed that sister of his

grand father was Hakikan who was wife of Bhola Mia. Then he

had supported the case of plaintiffs. In his cross­examination he

had deposed that he had gone to the suit village 25 years ago.

Then specific questions were put to him about one of the son of

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 Bhola Mia namely Moharrum Mia. He had failed to depose the

name of wife of Moharrum Mia. He had also deposed that he do

not know the name of ladies in the family of Bhola Mia. He had

also deposed that he had not seen any wives of Bhola Mia. He

had also deposed that he do not know Ramzan Mia. He had

deposed that he do not know how many daughters Bhola Mia

had.

Note: This witness is not a resident of suit village. He had

claimed that Bhola Mia was his relative but he had failed to

name any of the ladies in the family nor he could depose the

name of daughters of Bhola Mia. He had also failed to depose

about the other family members of Bhola Mia. As such this

witness is also not reliable and cannot be said to have supported

the case of plaintiffs.

19. Then the plaintiffs have examined PW­4 who is also resident of

Macchargaowa. He had deposed that his grand mother was sister

of Hakikan (first wife of Bhoal Mia). Then he had supported the

case of plaintiffs. In his cross­examination he had deposed that

Bhola Mia died 30­32 years ago. He had then deposed that he

had seen two wives of Bhola Mia who have died but their year of

death is not known to him. He had then deposed that Bhila Mia

had 7 sons and 4 daughters but he knows only Moharrum Mia.

He had also deposed that all the children of Bhola Mia resides in

suit village.

Note: this witness had failed to depose anything about the

children of Bhola Mia. He had deposed that Bhola Mia had two

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 wives which in fact is the case of defendants. He had also

deposed that all the sons of Bhola Mia lives in suit village, which

is also the case of defendants. Thus, in a way he had supported

the case of defendants instead of plaintiff. He is also not a

resident of suit village and is connected with PW­2 and PW­3.

20. Then the plaintiffs have examined PW­5 who is also a resident of

Machhargaowa. He had also deposed that Hakikan was sister of

his grand father. Then he had supported the case of plaintiffs. In

his cross­examination he had deposed that he had not seen any

document of suit land nor he could detail the description of it. He

had also deposed that he was 18­19 years old when Bhola Mia

died. He had also deposed that Bhola Mia died in suit village. He

had also failed to depose about the daughters of Bhola Mia.

Note: This witness had failed to depose about the suit land. He

had also failed to depose about the daughters of Bhola Mia. He

had deposed that Bhola Mia died in suit village whereas plaintiff

had deposed that he died in Agarwa. Thus, this witness cannot

be relied for the plaintiff.

21. Then the plaintiffs have examined PW­6 who is resident of

Basmanpur. In his examination­in­chief he had supported the

case of plaintiffs. In his cross­examination he had deposed that

he had seen Bhola Mia 30­32 years ago. But he could not depose

how many sons and daughters he had nor he could name any

one of them. He had not seen any document of the suit land. He

had deposed that 9 heirs of Bhola Mia cultivates his property

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 name of whose is not known to him. He had also deposed that

Bhola Mia had 4­5 bigha land but he does not know who is in

possession.

Note: This witness had failed to support the case of plaintiff in

his cross­examination. He had failed to name any of the children

of Bhola Mia. Nor he knows anything about the suit land or its

possession. Thus, this witness had also failed to support the case

of plaintiff.

22. Then the plaintiffs have relied on their documents. Khatiyan was

marked as Ext. 1 which is admitted document. Then a family

member certificate issued by Circle Office, Motihari was

produced by the plaintiff on record which was marked as Ext. 2.

This document contains a note that it cannot be used for

certifying the heir­ship. Then this document has an entry

containing name of Dil Mohammad s/o Moharrum Mia and name

of Bhola Mia has been inserted as grand­father in a different

hand­writing. This entry has not been verified. Ld. Counsel for

plaintiff could not give an appropriate and satisfactory answer to

the Court. It is apparent that this document was manipulated to

make a case that Bhola Mia was grand father of plaintiff. In fact

such a document is created, on furnishing an affidavit, by the

person who whises to obtain that certificate. Thus, it cannot have

be a basis for ascertaining the heir­ship of Bhola Mia. Moreover,

this document itself makes a disclaimer in the foot­note that it

cannot be used for proving heir­ship. Hence, this document

cannot be sufficient proof for the case of plaintiff.

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23. Evidences produced by the defendants will not be referred in

detail but a few documents are being referred for the sake of

understanding how plaintiffs are unaware of the transactions

made by Bhola Mia. Plaintiffs are unaware of the sale deed dated

03.12.1943 which was executed by Bhola Mia in favor of Sanful

Mahto. Bhola Mia had also executed a gift deed in favor his

second wife Dhanifan vide gift deed dated 20.12.1979. Both

these documents were filed by the defendants and marked as

Ext. A and Ext. A/2. Plaintiffs are however, no aware of these

facts as they have neither claimed for the said properties nor

there is any evidence in this regard. Defendants have also

produced rent receipts to prove their possession.

24. This Court had examined all the evidences produced by the

plaintiff. All the oral evidences have failed to prove the case of

plaintiff. A detail of their reasons have been provided by this

Court while mentioning their evidence. At the same time

documents produced by the plaintiffs also had failed to support

the claim of plaintiff. On the other hand defendants have

produced certain documents which clearly falsify the claim of

plaintiffs. As such it is clear that plaintiffs have failed to prove

that Bhola Mia was married thrice and Hakikan was his one of

the wives. If plaintiffs have failed to prove their heir­ship to Bhola

Mia, then no question of any cause of action arises in their favor.

Hence, issue no. 6 and 7 are decided against the plaintiffs.

So far as other issues are concerned they are no longer required

to be adjudicated as the plaintiffs have failed to prove the name

issues.

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 FINAL FINDINGS
25. This Court had found that plaintiffs have miserably failed to

prove that Hakikan was a wife of Bhola Mia. Thus, their entire

claimed has frustrated, leaving no scope for this Court to proceed

further. None of their witnesses or documents have supported

their case. Even plaintiff no. 1 while being examined as PW­1

had failed to support his own case. Thus, in absence of any

cogent and reliable evidence, it is held and accordingly this Court

ORDERS
that the suit is hereby dismissed on contest with cost of Rs.

10,000. Plaintiff is directed to pay the cost to the defendants

within 30 days or else defendants make take appropriate

assistance of this Court to realize the same by process of law.

Sumit Kumar Singh

Civil Judge (SD)­X, Motihari
BJS, 27th Batch
Dated this 20th Day of December, 2021

Certified that the Judgment was typed, corrected and pronounced in

the open Court by me on this 20th Day of December, 2021.

Sumit Kumar Singh

Civil Judge (SD)­X, Motihari
BJS, 27th Batch
Dated this 20th Day of December, 2021

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 IN THE COURT OF CIVIL JUDGE (SD)­X, MOTIHARI
BEFORE SH. SUMIT KUMAR SINGH
PARTITION SUIT NO. 49 OF 2016
IN THE MATTER OF:
DIL MOHAMMAD & ORS. ...PLAINTIFFS
VERSUS
KUPA MIA (DEAD THR. LRS.) & ORS. ...DEFENDANTS
APPENDIX OF EVIDENCE
ORAL EVIDENCE FOR PLAINTIFFS:
SR. No. Particulars PW No.
1. Dil Mohammad 1
2. Hafiz Mia 2
3. Tazul Ahmad 3
4. Azan Mia 4
5. Mohammad Kalam 5
6. Ram Prasad Chaurasaiya 6
ORAL EVIDENCE FOR DEFENDANTS:
SR. No. Particulars DW­1 No.
1. Ishrafil Mia 1
2. Nathuni Mia 2
3. Rafiq Mia 3
4. Rameshwar Sah 4
5. Gaffar Mia 5
6. Ram Bahadur Prasad 6

LIST OF EXHIBITS
FOR PLAINTIFFS:
SR. No. Particulars Exhibit
1. Certified copy of khatiyan 1
2. Family member certificate issued by Circle Office, Motihari 2

FOR DEFENDANTS:
SR. No. Particulars Exhibit
1. Certified copy of sale deed dated 03.12.1943 A
2. Sale deed dated 16.09.1980 A/1
3. Gift deed dated 20.12.1979 A/2
4. Certified copy of khatiyan B
5. Five rent receipts C to C/4

Sumit Kumar Singh

Civil Judge (SD)­X, Motihari ­
BJS, 27th Batch
Dated this 20th Day of December, 2021.
[FORMING PART OF JUDGMENT]

PS 49/2016 DIL MOHAMMAD & ORS. VS KUPA MIA (DEAD THR. LRS.) & ORS. PAGE NO.
 IN THE COURT OF CIVIL JUDGE (SD)­X, MOTIHARI
BEFORE SH. SUMIT KUMAR SINGH
PARTITION SUIT NO. 49 OF 2016
IN THE MATTER OF:
DIL MOHAMMAD & ORS. ...PLAINTIFFS
VERSUS
KUPA MIA (DEAD THR. LRS.) & ORS. ...DEFENDANTS

PROCEEDINGS IN THE SUIT

Sr. No. Particulars Date

1. Suit filed on 19.01.2016
2. Admission of suit 22.01.2016
3. Written statement of defendant 26.02.2016

4. Issues settled on 07.03.2018

5. Evidence of plaintiff 20.03.2018 to 19.11.2018
6. Evidence of defendant 05.12.2018 to 29.01.2021
7. Arguments 08.02.2021 to 09.12.2021
8. Judgment reserved on 09.12.2021
9. Judgment pronounced 20.12.2021
10. Total time taken for disposal of suit. 5 years 11 months 1days
11. Result Dismissed

Sumit Kumar Singh

Civil Judge (SD)­X, Motihari ­
BJS, 27th Batch
Dated this 20th Day of December, 2021.

[FORMING PART OF JUDGMENT]

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