Jharkhand High Court
Sheikh Bigal (Substituted V.O.D. ... vs Sheikh Ishaque (Substituted V.O.D. ... on 23 March, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
( 2026:JHHC:8139 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 85 of 1994 (R )
1. Sheikh Bigal (substituted v.o.d. 18.09.2003)
1 (a) Najiban Khatoon, widow of late Sheikh Bigal and resident
of Tigoi, Ambatoli, P.O. Karge, P.S. Mander, District Ranchi
(expunged v.o.d. 19.09.2008)
1 (b) Eqbal Ansari, son of late Sheikh Bigal and resident of
Tigoi, Ambatoli, P.O. Karge, P.S. Mander, District Ranchi
(substituted v.o.d. 07.09.2022)
1 (b) (i) Sanaulhak Ansari, son of late Ekbal Ansari, resident of
H.No.1, Noor Nagar, P.O. - Karge, P.S. Mandar, Tigoi Amba
Toli, District - Ranchi
1 (b) (ii) Safiullah Ansari, son of late Ekbal Ansari, resident of
P.O. - Karge, P.S. Mander, Tigoi Amba Toli, District - Ranchi
1 (b) (iii) Samiullah Ansari, son of late Ekbal Ansari, resident
of village - Tigoi Amba Toli, P.O. - Karge, P.S. Mander,
District - Ranchi
1 (b) (iv) Hawibul Ansari, son of late Ekbal Ansari, resident of
village - Tigoi Amba Toli, P.O. - Karge, P.S. Mander, District
- Ranchi
1 (b) (v) Maimun Khatun, wife Ekbal Ansari, resident of village
- Nurnagar, P.O. - Karge, P.S. Mander, Tigoi Ambatoli,
District - Ranchi
1 (b) (vi) Sabba Tabassum, daughter of late Ekbal Ansari, wife
of Ababakar Ansari, resident of village - Hossir, P.O. & P.S. -
Kanke, District - Ranchi, Jharkhand
1 (b) (vii) Ruksana Khatoon, daughter of late Ekbal Ansari,
wife of Subhan Ansari, resident of Kachnar Toli, P.O. - Hatia,
P.S. Jagarnathpur, District - Ranchi
1 (b) (viii) Taiyaba Praween, daughter of late Ekbal Ansari,
wife of Matin Ansari, resident of village - Childag, P.O. -
Childag, P.S. - Angara, District - Ranchi
1 (b) (ix) Roushan Ara, daughter of late Ekbal Ansari, wife of
Ataul Ansari, resident of village - Tigoi Amba Toli, P.O. -
Karge, P.S. Mander, District - Ranchi
1 (b) (x) Tarannum Ara, daughter of Ekbal Ansari, resident of
village - Noor Nagar, P.O. - Karge, P.S. - Mander, District -
Ranchi
1 (c ) Jamiran Khatoon, daughter of late Sheikh Bigal and wife
of Ahmad Ansari and resident of village - Babro, P.S. Mander,
P.O. Dumri, District Ranchi
( 2026:JHHC:8139 )
1 (d) Jubeda Khatoon, daughter of late Sheikh Bigal and wife of
Abbas Ansari of resident of village - Malti, P.O. & P.S.
Mander, District Ranchi
1 (e ) Nasima Khatoon, daughter of late Sheikh Bigal and wife
of Jamal Ansari and resident of village - Basillo, P.O. Piska
Nagri, P.S. Ratu, District Ranchi
1 (f) Jaimur Khatoon, daughter of late Sheikh Bigal and wife of
Israel Ansari and resident of village Roll Matwey, P.O.
Chakme, P.S. Burhmu, District Ranchi
2. Sheikh Amiruddin (Substituted v.o.d. 18.09.2003)
2 (a) Most Kabulan Khatoon, widow of late Sheikh Amiruddin
2 (b) Afzal Ansari (Substituted v.o.d. 11.09.2014)
2 (b) (i) Edil Khatoon, wife of late Sheikh Afzal
2 (b) (ii) Inshad Ansari
2 (b) (iii) Isteyak Ansari
2 (b) (iv) Israrul Ansari
2 (b) (v) Asfaque Ansari
2 (b) (vi) Imteyaz Ansari
2 (b) (vii) Gulshan Ara
2 (b) (viii) Sharda Khatoon
2 (b) (ix) Sabnam Khatoon
2 (b) (x) Azmeri Khatoon
2 (b) (xi) Anwari Khatoon
2 (b) (xii) Akhtari Khatoon
All are resident of village - Zuria, P.O. and P.S. Lohardaga,
District - Lohardaga
2 (c ) Ashraf Ansari (Substituted v.o.d. 25.10.2013)
2 (c ) (i) Sajda Khatoon, wife of late Ashraf Ansari
2 (c ) (ii) Wahida Khatoon, daughter of late Ashraf Ansari
2 (c ) iii) Ajharul Ansari, son of late Ashraf Ansari
2 (c ) (iv) Farookh Ansari, son of late Ashraf Ansari
All residents of village - Tigori Ambatoli, P.O. & P.S. -
Mandar, District - Ranchi
2 (c ) (v) Unjala Khatoon, daughter of late Ashraf Ansari, wife
of Ishad Ansari, Resident of village - Chatwal, P.O. & P.S. -
Mandar, District - Ranchi
2 (c ) (vi) Gajala Khatoon, daughter of late Ashraf Ansari, wife
of Khurshid Ansari, resident of village - Baski, P.O. & P.S. -
Mandar, District - Ranchi
2 (c ) (vii) Tanjila Khatoon, daughter of late Ashraf Ansari,
wife of Jainul Ansari, resident of village - Lundri, P.O. & P.S.
Chano, District - Ranchi
2 (c ) (viii) Samjida Khatoon, wife of late Nazrul Ansari
2 (c ) (ix) Waish Ansari, son of late Nazrul Ansari
2
( 2026:JHHC:8139 )
2 (c ) (x) Sabrin Parween, daughter of Late Nazrul Ansari
2 (c ) (xi) Touhid Ansari, son of late Nazrul Ansari
2 (c ) (xii) Toukir Ansari, son of late Nazrul Ansari
All residents of village - Tigori Ambatoli, P.O. & P.S. Mandar,
District - Ranchi
2 (d) Sayub Ansari
2 (e ) Samayan Ansari
2 (f) Safullah Ansari
2 (g) Barkatullah Ansari
2 (h) Narullah Ansari
All are sons of late Sheikh Amiruddin
All are residents of village Tigoi Ambatoli, P.O. Karge, P.S.
Mander, District Ranchi
2 (i) Ashiya Khatoon, w/o Salim Ansari daughter of late Sheikh
Amiruddin, resident of village Balsokera, P.S. Chanho, District
Lohardagga
2 (j) Manira Khatoon, wife of Riyasat Ansari and daughter of
late Sheikh Amiruddin, resident of village Pandri, P.S. Chanho,
District Lohardagga.
2 (k) Salfa Khatoon, wife of Azimuddin Ansari and daughter of
late Sheikh Amiruddin, resident of village Anhat, P.S. Kuru,
District Lohardagga
3. Sheik Ismail (substituted v.o.d. 11.09.2014)
3 (a) Iliyas Ansari (substituted v.o.d. 11.09.2014)
3 (a) (i) Sakulan Khatoon, wife of late Iliyas Ansari
3 (a) (ii) Mubarak Ansari, son of late Iliyas Ansari
Both residents of village - Malti, P.O. and P.S. Mandar, District
- Ranchi
3 (b) Md. Yasin,
3 (c ) Ketabul Ansari
3 (d) Harun Ansari
All are residents of village - Malti, P.O. and P.S. Mandar,
District - Ranchi
3 (e ) Rabia Khatoon, wife of late Md. Zumauddin Khatoon
resident of village - Banapiri, P.O. Banapiri, P.S. Ratu, District
- Ranchi
3 (f) Kuresha Khatoon, wife of Md. Moin Ansari, resident of
village Katamkulli, P.O. Katamkulli, P.S. Ratu, District -
Ranchi
3 (g) Kasira Khatoon, wife of Mahir Ansari resident of village
Matwe Karanj Toli, P.O. Matwe Karanj Toli, P.S. Burmu,
District - Ranchi
3 (h) Anisha Khatoon, wife of Md. Rafique, resident of village
Kulsuri Patra Toli, P.O. Chano, P.S. Kulsuri, District - Ranchi
4. Rabila @ Rabina Khatoon, wife of Sheikh Hanif,
All resident of village Malti, P.S. Mandar, District Ranchi
3
( 2026:JHHC:8139 )
5. Sabila @ Sabila Khatoon, wife of Sheikh Bandhan, resident of
Chama Baitharwa Khelari, P.S. and District Ranchi
... ... Plaintiffs/Respondents/Appellants
Versus
1. Sheikh Ishaque (substituted v.o.d. 09.02.2005)
1 (a) Nizamuddin Ansari, S/o late Sheik Ishaque
1 (b) Most. Zeenat, w/o late Sheikh Ishaque (Deleted v.o.d.
20.08.2014)
Both residents of village Tigoi Ambatoli, P.O. and P.S. Mandar,
District Ranchi
1 (c ) Safura Khatoon, W/o Ismail Ansari
Resident of village Irba, P.O. and P.S. Ormanjhi, District
Ranchi
1 (d) Muneza Khatoon, W/o Noor Mohammad
Resident of village Mesal, P.O. Murma, P.S. Mandar, District
Ranchi
1 (e ) Salma Khatoon, W/o Habib Ansari
Resident of village Pakario, P.O. & P.S. Chanho, District
Ranchi
2. Sahiman, widow of Sheikh Bhukha (Deleted v.o.d. 01.03.2000)
3. Sheikh Sharif (substituted v.o.d. 19.09.2008)
3 (a) Liyakat Hussain
3 (b) Ehshan Ansari
3 (c ) Riyazuddin Ansari
3 (d) Taslim Ansari
3 (e ) Qyum Ansari
3 (f) Nayum Ansari
All sons of late Sheikh Sharif,
All residents of village - Tigoi Ambatoli, P.O. - Karge, P.S.
Mandar, District Ranchi
3 (g) Mahrun Nisha, wife of late Nizamuddin Ansari daughter
of late Sheikh Sharif, resident of Morro, P.O. Itki, P.S. Itki,
District Ranchi
3 (h) Mokima, wife of late Jamruddin, daughter of late Sheikh
Sharif, resident of Umedanda, P.O. Umedanda, P.S. Burmu,
District Ranchi
3 (i) Safina Khatoon, wife of Ashique Ansari, daughter of late
Sheikh Sharif, resident of village Mandar, P.S. and P.O.
Mandar, District Ranchi
4. Sheikh Shajib (substituted v.o.d. 13.05.2024)
4 (i) Akhtar Ansari
4 (ii) Jamil Ansari
4 (iii) Shakil Ansari
4 (iv) Sadik Ansari
All sons of Sheikh Shajib, resident of village - Tigoiambatoli,
P.O. - Karge, P.S. - Mandar, District - Ranchi, Jharkhand
4 (v) Anisa Khatoon, wife of Yasin Ansari, daughter of Sk.
Shajib, resident of village - Murjuli, P.O. - Kembo, P.S. -
Mandar, District - Ranchi, Jharkhand
4
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4 (vi) Haji Khatoon, wife of Samsul Ansari, daughter of Sk.
Shajib, resident of village - Sakra, P.O. - Sakra, P.S. - Mandar,
District - Ranchi, Jharkhand
4 (vii) Rajina Khatoon, wife of Imran Ansari, daughter of Sk.
Shajib, resident of village - Malti, P.O. & P.S. - Mandar,
District - Ranchi, Jharkhand
5. Sheikh Wahab (substituted v.o.d. 03.05.2013)
5 (i) Hasina Khatoon, widow of late Shiekh Wahab
5 (ii) Jalil Ansari, son of late Shiekh Wahab and resident of
village - Raja Colony, P.O. & P.S. - Gumla, District - Gumla
5 (iii) Jamal Ansari
5 (iv) Tyab Ansari
5 (v) Syed Ansari
Sl. No. 5 (iii) to (v) all sons of late Shiekh Wahab
Sl. No. (i), (iii) to (v) all residents of village - Tigoi, -
Ambatoli, P.O. - Karge, P.S. - Mandar, District - Ranchi
5 (vi) Sajda Khatoon, wife of Md. Parwez and daughter of late
Shiekh Wahab, resident of village - Kanthia, P.O. & P.S. -
Mandar, District - Ranchi
5 (vii) Zahida Khatoon, wife of Abdulla and daughter of late
Shiekh Wahab, resident of village - Fulsuri Patratoli, P.O. -
Kakargarh, P.S. - Kuru, District - Lohardaga
6. Sheikh Subhan (substituted v.o.d 05.05.2022)
6 (i) Banu Khaton, wife of late Sheikh Subhan
6 (ii) Imtiyaj Ansari, son of late Sheikh Subhan
6 (iii) Sarfaraj Ansari, son of late Sheikh Subhan
6 (iv) Mousin Ansari, son of late Sheikh Subhan
All residents of Tigoi Ambatoli, P.O. - Karge, P.S. - Mander,
District - Ranchi, Jharkhand
6 (v) Sayeeda Khatoon, daughter of late Sheikh Subhan, wife of
Hasim Ansari, resident of village - Chindab, P.S. - Angara,
District - Ranchi, Jharkhand
6 (vi) Shabnam Khatoon, daughter of late Sheikh Subhan, wife
of Majhar Ansari, resident of village - Kanke Patra Toli, P.O.
& P.S. - Kanke, District - Ranchi, Jharkhand
7. Mostt. Maimun, wife of Sheikh Wahid, daughter of Sheikh
Bhukha, resident of village Gargaon, P.S. Bero, District Ranchi
... ... Defendants/Appellants/Respondents
8. Imdad Hussain, son of Sheikh Sahdali (substituted v.o.d.
30.10.2025)
8 (i) Hamida Khatoon, widow of late Imdad Hussain
8 (ii) Afroja Khatoon, wife of Sagir Ansari
8 (iii) Rasida Khatoon, wife of Hamja Ansari
8 (iv) Kausar Khatoon, wife of Arif Ansari
8 (v) Anjum Khatoon, wife of Mokhtar Ansari
8 (vi) Manjoor Ansari, son of late Imdad Hussain
All residents of village - Tigoi, Ambatoli, P.O. - Karge, P.S. -
Mander, District - Ranchi
9. Sakina Khatoon (substituted v.o.d. 08.08.2025)
5
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9 (i) Anul Ansari, son of Safruddin, resident of village -
Gitilgarh, P.O. + P.S. - Karu, District - Lohardaga
10.Hamida (substituted v.o.d. 20.06.2003)
10 (i) Sheikh Qadir, husband of late Hamida Khatoon
10 (ii) Kalim Ansari, son of Sheikh Qadir
10 (iii) Kaliman Khatoon, daughter of Sheikh Qadir
All residents of village - Tigoi Ambatoli, P.O. Karge, P.S.
Mandar, District - Ranchi
11.Abdul Hakim, son of Sheikh Hussaini
12.Yunus Ansari
13.Istehar Ansari
Both sons of Ashruddin Ansari
Residents of village Tigoi Ambatoli, P.S. Mandar, District -
Ranchi
14.Bibi Hakiman, w/o Ashruddin Ansari
Resident of village Tigoi Ambatoli, P.S. Mandar, District
Ranchi
15.Bibi Charki, wife of Sheikh Shiraj
Resident of village Pirutola, P.S. Kanke, District - Ranchi
... ... Intervenor-Respondents/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Ayush Aditya, Advocate : Mr. Akashdeep, Advocate : Ms. Alisha Lakra, Advocate For the Respondents : Mr. Manjul Prasad, Sr. Advocate : Mr. Akhouri Prakhar Sinha, Advocate : Mr. Aman Kedia, Advocate For the Respondent No.10(b) & (C): Mr. Nehru Mahto, Advocate
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C.A.V. On 22.12.2025 Pronounced On 23.03.2026 This appeal has been filed against the judgement dated 11.04.1994 (decree dated 25.04.1994) passed by learned 1st Additional Judicial Commissioner, Ranchi in Title Appeal No.35/3 of 1988-1989 whereby the learned 1st appellate court has reversed the judgement and decree dated 05.05.1988 passed by learned VIth Subordinate Judge, Ranchi in Partition Suit No.146/114 of 1982-87.
The learned trial court decreed the suit and declared the plaintiffs' 1/5th share to be carved out and allotted to plaintiffs by appointing a Pleader Commissioner.
6( 2026:JHHC:8139 ) The learned 1st appellate court while reversing the findings has recorded that there was previous partition with respect to khata nos.36, 11 and 110, which stood recorded in the name of common ancestor Sk. Faga and with respect to Khata Nos.80, 88, 89 and 90, the learned 1st appellate court has recorded a finding that it was the self-owned and self-acquired property of the concerned defendants in whose name it was recorded.
2. In terms of previous orders, the two substantial questions of law which have framed and are to be answered in the present 2nd appeal are as follows:
i. Whether the inference drawn by the learned appellate court regarding the partition of the properties between the plaintiffs and the defendants on the oral and documentary evidence regarding separate mess and cultivation between the co-sharers legal and such inference is available under the Hindu Law can be made available under the Mohammedan Law also?
ii. Whether in spite of the clear-cut admission of the defendant nos. 1, 9 and 10 and also defendant nos. 1(a) to 1(c) in the written statement filed by them admitting that the land of Khata No. 36, 11 and 110 are joint family property and liable for partition, the suit of the plaintiff could have been dismissed?
3. During the course of arguments, it is not in dispute between the parties that-
a. Sk. Faga was the common ancestor, who died in the year 1940. It is further not in dispute that he is the common ancestor of the plaintiffs and the defendants, but not that of the intervenor defendants.
b. Sk. Faga, had two wives and from his 1st wife, he had a son namely Sk. Charku, and the plaintiffs were sons of Sk. Charku. So far as the descendants through 2nd wife are concerned, they were defendant nos.1 to 10, and defendant no.11 to 13 were the intervenors.
7( 2026:JHHC:8139 ) c. At the time of death of Sk. Faga in the year 1940, he left behind his two wives and five sons, who were the heirs and successors of the property left by Sk. Faga as per their respective share in accordance with Mohammedan Law. The share of two wives together could be 1/8 in his property and remaining would go to his five sons.
d. All the heirs of Sk. Faga were tenants in common with respect to the properties inherited upon death of Sk. Faga. e. Both the widows of Sk. Faga pre-deceased their respective sons and as such the share of each widow stood inherited by their respective sons.
f. In view of this, the position stood admitted regarding the genealogy of the parties to the suit and the property of Sk. Faga and his two widows would come to Sk. Charku to the extent of 23.6 paise in the property of Sk. Faga and remaining 76.4 paise in the share of the four sons of Sk. Faga born out of the second wife.
g. Khata no.36 stood recorded in the name of Sk. Faga and four other persons. In the remarks column, plot nos.398, 1066, 1067, 1068, 1250, 1686, 1687, 1231, 1236 and 1211 of Khata No.36 stood recorded in the possession of Sk. Faga and the remaining plots of khata no.36 stood recorded in the name of other co-tenants of Sk. Faga. However, amongst the properties of Sk. Faga, Plot nos.1231 and 1236 of Khata No.36 were not included in the suit property and plot no.1250 was also deleted from the schedule of the property. Khata no.11 also stood recorded exclusively in the name of Sk. Faga, which consisted of only 1 plot of area 1.6 acres. Khata no.110 stood recorded in the name of Sk. Faga, which consisted of 4 plots having 3.14 acres.
h. Considering the arguments advanced with respect to the substantial question of law, the findings in connection with khata nos.80, 88, 89 and 90 that they were the self-acquired 8 ( 2026:JHHC:8139 ) property of the various defendants, has attained finality and the same is not the subject matter of consideration in this appeal. i. This Court is only concerned with khata nos.36, 11 and 110 which stood recorded in the name of common ancestor namely Sk. Faga.
j. khata nos.36, 11 and 110 continued to be recorded in the name of Sk. Faga and the rent with respect to these properties was being paid jointly by the plaintiffs and defendant nos.1 to 10. At the same time, it is also not in dispute that two sale deeds were executed by the plaintiffs, which were exhibits D and D/1, which were related to khata no.36 and in the said sale deeds, the plaintiffs had sold 1/3rd share of the concerned plots and those plots were not included in the schedule of the partition suit. Meaning thereby, the properties which were subject matter of sale vide exhibits D and D/1 were excluded from claiming partition.
4. The defendant no. 1 to 10 claimed that there was a previous partition with respect to khata nos.36, 11 and 110 upon death of Sk. Faga way back in the year 1940 and properties in khata nos.80, 88, 89 and 90 were said to be self-acquired property of various defendants and the suit for partition was opposed. The following issues were framed:
"1. Is the suit of the plaintiff as framed maintainable?
2. Have the plaintiffs got valid cause of action for the suit?
3. Whether the plaintiff's suit suffers from the defects of non-joinder of necessary parties?
4. Whether there was partition (preparation) amongst the heirs of Sk. Phaga before this action of partition or note?
5. Whether the lands of khata no. 80,88,89 and 90 belong to Sk. Phaga, the common ancestor of parties or not?
6. Whether the lands of Khata no. 80, exclusively belong to Sk. Dinu or jointly to Dinu and his brother Sahdali?9
( 2026:JHHC:8139 )
7. Whether the plaintiffs suit is bad for partial partition that is to say for not including plot nos.1231, and 1236, of khata no. 36 of village Tigoy Ambatoli?
8. Whether the plaintiffs are entitled to partition the properties in suit if so to what extent and share.
9. To what relief or reliefs are the plaintiffs entitled?"
The trial court's judgement
5. Issue No.3 was not pressed. Issue Nos.4, 5, 6, 7 and 8 were taken up together. It was the specific case of the defendants, inter alia, with respect to khata nos.36, 11 and 110 that after death of Sk. Faga in the year 1940, there was an oral partition and the plaintiffs got share in the land of khata no.36, whereas rest of the ancestral properties were allotted to defendant nos.1 to 10. However, defendant nos.1, 9 and 10 and also defendant nos.1(a) to 1(c) stated in their written statement that khata nos.36, 11 and 110 were joint family properties and liable for partition, but the other defendants took a specific stand of previous oral partition way back in the year 1940.
6. The learned trial court while deciding issue nos.4, 5, 6, 7 and 8 ultimately held that the land recorded in possession in the name of Sk. Faga under Khata no.36 belonged to him; the land of khata no.11 and 110 also belonged to Sk. Faga in which the plaintiffs claimed 1/5th share and this relief cannot be denied and ultimately, held that the property in Khata nos.36, 11 and 110 were the ancestral properties, which were still not partitioned and both the parties used to cultivate the land according to their convenience, and therefore, the defendants could not have a case of ouster against the co-sharer and the plea of defendants was rejected.
7. The learned trial court also recorded that in the sale deeds, exhibits D and D/1, which were sold by the plaintiffs, there was no reference of any previous partition and it appeared that few decimals of land have been sold by the plaintiffs out of the land to which they were cultivating for convenience and was of the view that the same was not sufficient to hold that there was previous partition. It was also recorded that when the plaintiffs sold the property which was under 10
( 2026:JHHC:8139 ) their cultivation with respect to some portion, it was natural upon them to mention that they were selling their share with respect to the property. It was held that merely because a co-sharer has sold a portion of property, the same does not mean that there was any previous partition and a reference was made to a decision of the Hon'ble Patna High Court reported in AIR 1977 Patna 59.
8. The learned trial court thereafter considered the oral evidence and observed that the lands were still joint and were not partitioned.
9. With respect to the properties under Khata Nos.80, 88, 89 and 90, the learned trial court was of the view that the same was acquired in different names from the joint family fund and was of the view that those properties were also required to be partitioned. The court was of the view that the family was joint and so the acquisition in the name of one or the other sons will not alter the position and was of the view that the real title holder of the property was Sk. Faga.
10. The learned trial court also recorded that the plaintiffs had not included plot nos.1231 and 1236 and the defendants had challenged their case on the ground of partial partition. The plea of the defendants was rejected in paragraph 39 and the court was of the view that the property in plot nos.1231 and 1236 were admittedly Sahan and Makan in possession of Sk. Charku since the time of record of rights which was also not denied by the defendants but held that the possession of Sk. Charku was nothing but on behalf of his father Sk. Faga, the recorded tenant, and these properties would also be liable to partition but since the plaintiffs and their father were living in possession of this Makan and Sahan since long therefore on partition it may be allotted to their share.
11. The learned trial court ultimately held that the entire property of Khata Nos.36, 11, 110, 80, 88, 89 and 90 were to be subject to partition and held that the plaintiffs are entitled for partition of their 1/5th share in the properties in suit and so the defendants are also jointly their 4/5th share and decided issue nos.1, 2, 8 and 9 accordingly.
The 1st appellate court's judgement 11 ( 2026:JHHC:8139 )
12. So far as the learned 1st appellate court is concerned, following points were the points for determination:
"i. Whether the case of previous partition between the sons of Sk. Faga deceased as set-up by the defendants/appellants, correct?
ii) Whether the lands of khata nos. 80,88,89, and 90 belonged to Sk. Faga, the common ancestor of the plaintiffs, respondents, defendants appellants-defendants respondents.
iii) Whether the lands of which of the khatas i.e. khata nos.
36,11,110,80,88 and 89 are liable to partition and if so, what would be the share of the plaintiffs-respondents therein?
iv) Whether the intervenor defendants-respondents are entitled to get a decree for partition of khata no.90 to the extent of their half share therein?
v) Whether an adjudication regarding the interse dispute between the defendants-appellants and the defendants- respondents in respect of the lands of khata no.80 is required in this case or not?"
13. Considering the contours of arguments with respect to the substantial questions of law, it is not in dispute between the parties that the points of determination for consideration framed by the learned 1st appellate court, with which this Court would be concerned, would be the point of determination nos.(i) and (iii) to the extent it relates to khata nos.36, 11 and 110. The learned 1 st appellate court recorded the findings from paragraph 15. First dealing with the point no.(i), the court recorded the admitted case amongst the parties and observed that the descendants of Sk. Faga were all tenants in common. The learned 1st appellate court recorded that there was no documentary evidence in connection with previous partition. The court further recorded that the jamabandi was still running jointly with respect to khata nos.36, 11 and 110. The court also recorded that exhibits D and D/1 are the certified copy of the sale deeds executed by the plaintiffs in favour of Sk. Rahim with respect to portion of land of plot nos.1066 12 ( 2026:JHHC:8139 ) and 1067 on 01.02.1974 and 06.02.1974 respectively which was prior to the institution of the suit.
14. As recorded in the earlier order passed by this court, it was submitted by the learned counsel for the parties that the sale deeds were in connection with plot nos.1066 and 1067 in Khata No.36, but the plots which were excluded were plot nos.1231 and 1236 and also plot no.1250.
15. The learned 1st appellate court held that there was previous oral partition with respect to properties in khata nos.36, 11 and 110 and reversed the finding of the learned trial court on this point. The learned 1st appellate court held that the properties in connection with Khata Nos.80, 88, 89 and 90 were self - acquired properties of the concerned defendants and could not be subject matter of partition. The Court held, as question of fact, that the plaintiffs or their predecessor in interest, Sk. Charku, had no right, title and interest as well as possession over the land in khata nos.80, 88, 89 and 90.
16. This court finds that the learned 1st appellate court recorded a finding after considering the oral evidence as follows:
"It therefore, appears from the evidence referred to above that Sk.Charku, the son of Sk. Faga born of his first wife and Sk. Dinu, Sk. Bhukha, Sk. Sahabadli and Sk. Sahadali, the sons of Sk. Faga born of his second wife were in separate cultivating possession on specific plots exclusively soon after the death of Sk. Faga deceased and thereafter, the decendants of the aforesaid five sons of Sk. Faga deceased are continuing in cultivating possession of those specific plots. It further appears from the evidence aforesaid that there is no paper of partition evidencing the fact of partition between the parties to the suit and Jamabandi is still continuing joint between the parties in the name of Sk. Faga in respect of the lands of khata nos.36,11 and 110. It further appears in view of the facts referred to above that the plaintiff-respondent had dealt with the lands in their exclusive cultivating possession by executing two sale deeds. Ext.D series...."
17. In continuation of the aforesaid findings, the learned 1st appellate court recorded the submission of the defendants, wherein reliance was placed on the judgment of the Hon'ble Patna High Court reported in 1993 (1) P.L.J.R. 172 (Zeyarat @ Jeyarat Hussain and 13 ( 2026:JHHC:8139 ) Anr. vs. Kamsmali Mian and Others), and it was submitted that one of the essential ingredients for grant of decree is proof of unity of title and unity of possession and that an inference of a previous partition can be drawn only on the basis of various circumstances, such as separate residence, possession on payment of rent etc. It was also submitted that this feature is primarily applicable in case of Hindu Joint family but can be applicable for similar inference of previous partition of a Muslim family as well.
18. It was also submitted before the learned 1st appellate court by relying upon the judgement passed by Patna High Court reported in 1984 P.L.J.R. 603 (Birchand Raut and others Vs. Babu Ram Raut and others) equivalent citation 1983 SCC OnLine Pat 256, to submit that where parties have been in possession of land and exercising rights of ownership over separate blocks of land over a long time, the court might well presume that these lands have already been divided and that the rights of the parties have been defined in such a manner as to preclude their being re-partitioned. In order to bring home the aforesaid point, reliance was placed on exhibit D series, whereby the specific portions of plot nos.1066 and 1067 were transferred vide sale deeds and by transferring only 1/3rd of the share and the remaining was left in the share of the plaintiffs. On the basis of aforesaid two sale deeds (exhibit-D and D/1), it was asserted that these two sale deeds clearly showed that the suit property had been partitioned. It was not in dispute that the parties were separate in mess, residence and cultivation with respect to specific plot. It was also asserted on the part of the defendants that continuation of joint jamabandi can never be in itself a ground to disbelieve the case of previous partition and for this reliance was placed upon the judgement passed by Hon'ble Patna High Court reported in AIR 1936 Patna 68 (Mukhram Rai Vs. Chandradeep Rai). It was also asserted that even survey purcha has no relevance, which was not admissible to show evidence of jointness.
19. The learned 1st appellate court recorded a finding in paragraph 17 itself that, in view of the evidence on record, it was crystal clear that the plaintiffs and the defendants had their separate mess, separate 14 ( 2026:JHHC:8139 ) residence, separate cultivating possession of the land in question and separate residential houses soon after the death of Sk. Faga. The court further recorded that it appeared that the plaintiffs had also been separately dealing with the property in their exclusive possession by executing sale deeds. The court held that in view of the facts of the case coupled with the principle of law, it was a question of fact that the circumstances, as discussed in the judgement, conclusively proved that there had been a partition by metes and bounds of the suit property appertaining to Khata Nos.36, 11 and 110. The learned court was of the view that the conclusion of the learned trial court that there has been no previous partition by metes and bound was incorrect.
20. The learned 1st appellate court thereafter considered the plea of allotment of smaller portion of land to Sk. Charku in paragraph 18 and considering the materials and came to a finding that since best land was given to Sk. Charku in the said partition, therefore, it cannot be said that Sk. Charku was given unequal share of land, and on this ground held the partition cannot be reopened with respect to Khata Nos.36, 11 and 110.
21. The learned 1st appellate court ultimately held while deciding point no.(iii) that the defendants have proved the case of previous partition with respect to khata nos.36, 11 and 110 between Sk. Charku on one hand and other four sons of Sk. Faga born through second wife on the other hand. The court further held that Khata Nos.80, 88, 89 and 90 were the self-acquired properties of the concerned persons and the claim for partition with respect to Khata nos.80, 88, 89 and 90 was not maintainable. Consequently, the 1st appellate court ultimately dismissed the suit and the claim of partition by the plaintiffs was rejected.
Substantial question of law No. II
22. So far as the substantial question of law No. II is concerned, it is not in dispute that earlier when this question was framed vide order dated 24.09.2025, it was framed by recording that there was clear cut admission on the part of the defendants in the written statement filed 15 ( 2026:JHHC:8139 ) by the defendants, whereby they had admitted that the land of Khata nos. 36, 11 and 110 were joint family property and were liable for partition, but subsequently upon being pointed out by the learned counsel for the respondents, the admission in this connection was only by the defendant nos. 1, 1(a) to 1(c), 9 and 10. Thus, there is no question of admission by all the defendants that the aforesaid property was joint family property and was liable for partition and rather it is the case of the contesting defendants that there has been previous oral partition and accordingly there is no question of recording any finding in favour of the plaintiffs on the basis of admission by the defendants and it is required to be seen on the basis of materials on record as to whether there was a previous partition while answering the substantial question of no. I.
23. The substantial question of law no. II is accordingly answered by holding that the impugned judgment passed by the learned 1 st appellate court does not call for any interference merely on account of any alleged admission by the defendants that Khata nos. 36, 11 and 110 that they were joint family property and were liable for partition. Rather it has to be examined while answering the 1st substantial question of law as whether there was any previous oral partition way back in the year 1940 upon death of the common ancestor of the plaintiffs and defendant no. 1 to 10. Substantial question of law No. I
24. So far as substantial question of law no. I is concerned, the fundamental difference between and Hindu Law and Mahomedan law on the point of succession and inheritance is required to be considered.
25. It would be useful to refer to the provisions of Mohammedan Law from the book of Mulla (Principles of Mohammedan Law ) wherein it has been clearly provided that the whole estate of a deceased Mohammedan if he has died intestate, or so much of it as has not been disposed of by will, if he has left a will (section 118), devolves on his heirs at the moment of his death, and the devolution is not suspended by reason merely of debts being due from the deceased.
16( 2026:JHHC:8139 ) The heirs succeed to the estate as tenants-in-common in specific shares. Unlike Hindu Law, estate of a deceased Mohammedan if he has died intestate, devolves on his heirs at the moment of his death. Under the Mohammedan Law, birth right is not recognized. The right of an heir, apparent or presumptive, comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor. There is no joint tenancy in Mohammedan law and the heirs are only tenant-in-common. Therefore, an heir can claim partition in respect of one of the properties held in common without seeking partition of all the properties. Possession of a co-sharer or co- heir is presumed to be that of other co-sharers or co-heirs. To start adverse possession there must be clear and complete evidence of an ouster.
26. In the judgement passed by the Hon'ble Supreme Court reported in (1971) 1 SCC 597 (Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri) it has been held that 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.
27. In the judgement passed by the Hon'ble Supreme Court reported in 2024 SCC OnLine SC 3809 [Mansoor Saheb (Dead) and Others -vs- Salima (D) by Lrs.] it has been held that in Muslim law- i. so long as a person is alive, he or she is the absolute owner of his or her property; nobody else (including a son) has any right, whatsoever, in it.
ii. It is only when the owner dies, and never before- that, the legal rights of the heirs accrue.
17( 2026:JHHC:8139 ) iii. There is, therefore, no question of a would-be heir dealing in any way with his future right to inherit.
iv. The Indian legal concepts of 'joint' or 'undivided' family, 'coparcenary', 'karta', 'survivorship', and 'partition', etc., have no place in the law of Islam.
v. A father and his son living together do not constitute a 'joint family'; the father is the master of his property; the son (even if a minor) of his, if he has any, has no right. The same is the position of brothers or others living together. vi. Transfer of property if required to be made during the lifetime of a person, they may do so primarily by way of gift (hiba). Other methods include the writing of a 'will' but even therein certain restrictions have been postulated. vii. Doctrine of partial partition does not apply to Mohammedan Law as the heirs therein 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. viii. The Hon'ble Supreme Court from paragraph 17 onwards observed that under Mohammedan law the right of an heir- apparent comes into existence for the first time on the death of the ancestor and there is no joint ownership of father and son as is prevalent under Hindu Law and in this context, it has been observed that the doctrine of partial partition does not apply to Mohammedan Law as the heirs therein are tenants-in-common. Succession is to a definite fraction of the estate in question. Since there is no concept of joint ownership under Muslim Law and the heirs and successors are tenants-in- common, there is no legal bar in having partition in connection with one of the properties amongst many under the Muslim Law 18 ( 2026:JHHC:8139 ) as each of the co-owners have specific share with respect to each of the property in the capacity of tenants-in-common.
28. Thus, under the Mohammedan Law, the legal heirs who inherit the property are tenants-in-common each having separate, specific and distinct pre-determined share and are not co- sharers/coparceners/co-owners and therefore there is only concept of Unity of Possession as tenants- in- common and there is no concept of Unity of Title as each one of the legal heirs are tenants- in-common who succeed to distinct and definite fraction of the estate of the deceased.
The fundamental difference between Hindu Law and Mohammedan Law, so far as partition is concerned, is that in Hindu Law there is a presumption of jointness in possession and jointness in title and in Muslim Law, there is no presumption of jointness in title but there is concept of jointness in possession. The estate of the deceased Muslim devolves upon his heirs separately and heirs are entitled to hold the property as tenant-in-common and each heir has a different and distinct share according to Muslim Law.
29. In the judgment passed by the Hon'ble Patna High Court reported in AIR 1976 Patna 59 (Ram Bahadur Nath Tiwary vs. Kedar Nath Tiwari & Others), though arising out of Hindu Law, it has been held that separate transactions by members of a joint family may not by themselves establish separation, but mutual transactions between two members of a family stand on an entirely different footing and they furnish very strong evidence of separation. It has been further held that in order to prove partition, it must be established that the parties altered and intended to alter their title to the property and that there was a definite and unambiguous indication by the members of the family to separate and to enjoy their respective shares in severalty. In the facts of the said case, it was found that there was a definite and unambiguous indication of this fact getting back to the year 1921, at least 40 years before filing of the suit. It was held that the presumption of jointness was sufficiently rebutted by good and 19 ( 2026:JHHC:8139 ) cogent evidence in the said case and was held that the defendants had proved their case of previous partition of the suit property.
30. In the judgment passed by the Hon'ble Patna High Court reported in AIR 1936 Patna 68 (Mukhram Rai and others vs. Chandradeep Rai and others), the case was arising under Hindu Law , the defendants claimed that there has been disruption of the family long before the institution of the suit and the properties had been partitioned sometimes 90 years before filing of the suit. Before the learned trial court, the defendants succeeded in proving that the plaintiffs had been separated from them in family status, in ownership of properties and in possession except with respect to lands admitted in the written statement to be held by both the parties in common tenancy. The 1st appellate court affirmed these findings, but found that there was no formal partition between the parties and assailed the trial court decree on the ground that even co-sharer, may claim partition of the family properties which had not been partitioned by metes and bounds. The High Court held that in the said case, the parties had been in possession and have been exercising rights of ownership over separate blocks of land for such a long time and in such a manner that a Court might well presume that these lands have been already divided and the rights of the parties defined in regard to them in such a manner as to preclude their being re-partitioned. The Court further held that a suit by a person excluded from joint family property to enforce a right to share therein must be instituted within 12 years of the date when the exclusion became known to the plaintiff and also held that such a position would arise when there is a division of status but no division of immovable property by metes and bounds and ultimately upheld the finding of the District Judge that the defendants had acquired title to the land of which they had been in exclusive possession for more than 12 years who had taken into consideration that the survey proceeding took place more than 12 years before institution of the suit wherein the defendants in course of survey proceedings had asserted in clear terms that they were entitled to remain in possession of the lands, which were, ultimately recorded in their name, as a matter of right.
20( 2026:JHHC:8139 )
31. In the judgment relied upon by the learned counsel for the appellants reported in 2025 SCC Online Madras 56108 it has been held that it is settled proposition that when a claim of oral partition is made, the burden is on the party setting up the claim of oral partition and the burden is onerous and not to be discharged by letting in cogent evidence. Mere living separately by the plaintiff and the defendant does not exclude the co-owner from their right to joint possession. It has also been held that mere separate enjoyment for convenience cannot be equated to partition in the eyes of law. Paragraph 17 and 27 of the aforesaid judgment is quoted as under:-
" Para-17 It is a settled proposition that when a claim of oral partition is made, the burden is on the party setting up the claim of oral partition and the burden is onerous and ought to be discharged by letting in cogent evidence. Merely living separately by the plaintiff and second defendant does not exclude the co-owner from their right to joint possession. The law presumes that all co-owners are in joint possession even if they are not physically present and actively managing the property. It is relevant to mention that a mere arrangement as to the possession of convenience of the parties is not partition by meets and bounds. Such amicable arrangement can never be operative and binding for all time to come and such arrangement does not destroy the joint character of the properties. " Para-27 It is settled law that mere separate enjoyment for convenience cannot be equated to partition in the eyes of the law. It does not mean joint ownership has been put to an end and in its place ownership in severalty or in specie has come into existence. Separate enjoyment for the sake of convenience is one thing and partition is another in the eye of law. There has to be some further evidence in support of partition. ..............
This court finds that in the same judgment passed by Hon'ble Madras High court in paragraph 26 it has been recorded that separate patta, separate possession, demarcation by ridges, sub-division, separate dealings etc. are some of the elements that may be recognized to prove oral partition.
Thus, the aforesaid judgment is that the person who claims oral partition has to prove it by cogent evidence and mere separation for convenience cannot be equated to partition in the eyes of law and 21 ( 2026:JHHC:8139 ) further the aforesaid elements such as separate patta, separate possession, demarcation by ridges, sub-division, separate dealings etc. are some of the elements that may be recognized to prove oral partition.
32. In the judgment reported in (2007) 4 SCC 163 in paragraph 17 also it has been held that the party raising the plea of partition has to prove the same, since under law, there is presumption regarding continuation of joint family and even separate possession by portion of the property by the co-sharer itself would not lead to a presumption of partition and several factors are required to be considered. There is no dispute regarding aforesaid proposition of law.
33. In the judgment reported in AIR 2007 Allahabad 198 paragraph 12, it has been held that occupation based on convenience does not constitute a formal partition by metes and bounds and the private arrangement would not prevent a decree of partition especially when the property has not been divided by metes and bounds.
34. In the judgment passed by the Hon'ble Patna High Court reported in 1984 PLJR 603 [1983 SCC Online Patna 256] the finding of the learned 1st appellate court in the said case that there was no previous partition was held to be vitiated on account of non- consideration of the material two documents which were registered sale deed executed by plaintiff no. 2. In the aforesaid background, law had been laid down in paragraph 7 and 8 of the aforesaid judgment is quoted as under:-
7. Two of the very material documents which were referred to by the trial court and the trial court, though considered these two documents along with others, took a view against the defendants appellants, have not been considered much less referred to by the lower appellate Court. These documents are Exts.
A and A/2. Ext. A is a sale deed dated 09.04.1951 executed by Ramautar (plaintiff No. 2) in favour of one Surat Rout. Hy this deed 10 dhurs of land of plot no. 1408 was 3 transferred by plaintiff no. 2 for Rs. 100/-. Ext. A/2 is another registered sale deed dated 06.09.1950 and it discloses that Ramautar (plaintiff 22 ( 2026:JHHC:8139 ) No. 2) had sold two khatas out of plot No. 1,08/1744, Khata No. 140, to Ghandar Rouot (defendant No. 7). These two documents executed by no less than the plaintiff No. 2 himself are very material for being considered as they speak of the conduct of the parties as prevailing 12 to 14 years before the institution of the suit.
8. It is well settled that where parties have been in possession of land exercising rights of ownership over separate blocks of land for a long time, the court might well presume that these lands have already been divided and the rights of the parties defined with regard to them in such a manner as to preclude the re being re partition. In view of the well- settled principle of law, the aforesaid two documents are so-material as needed to be considered by the final Court of fact."
35. In the judgment reported in 1993 (1) PLJR 172 [Zeyarat @ Jeyarat Hussain and another vs. Kamsmali Mian (since dead) and others], it has been held that in a suit for partition filed by one of the co-sharers of a Muslim family may not be held to be bad for non- joinder of all co-sharers as in the case of Hindu Joint Mitakshra family, inasmuch shares of each and every co-sharer of a Muslim family is specific and definite. However, if the non-joinder of a co- sharer effect the right of any other party such non-joinder will be fatal the continuity of the suit. In the said judgement reference was made to the earlier judgement passed in the case reported in AIR 1991 Patna 95 wherein it has been held that it is well settled that there is presumption of jointness in a Hindu family but that presumption is stronger where the parties are full brothers but such presumption gets weaker and weaker as time passes and the parties in 3 rd or 4th generation are found to be in separate possession of the land and on such basis it can be held that there was previous partition. After having referred to the judgement reported in AIR 1991 Patna 95(supra) it has been held in 1993 (1) PLJR 172 (supra) that on the basis of same factors, inference of previous partition of a Muslim family can also be drawn.
23( 2026:JHHC:8139 )
36. In the present appeal, the properties which are subject matter of consideration are relating to Khata Nos. 36, 11 and 110 which stood recorded in the name of common ancestor, namely, Seikh Faga and admittedly the rent in connection with this property was paid jointly by the plaintiffs and the defendants and Seikh Faga was their common ancestor. It is the case of the plaintiffs that the parties are in joint possession of the properties and they have been living as per their convenience and there has been no partition amongst them by metes and bounds and therefore the plaintiffs had filed the suit claiming 1/5 th share in the suit property.
37. The case of the defendants with respect to Khata nos. 36, 11 and 110 was that there was previous oral partition. Paragraph 11 of the written statement is quoted as under: -
"11. Para 6 of the plaint -denied. An oral partition between Sk. Charku (father of the plaintiffs No.1 to 5) and the Defendant. No. 1 and the fathers of defendant No. 2 to 8 and 10 had taken place long ago i.e. in 1940 after the death of Sk. Faga the father. The plaintiff's father had received his share in khata No. 36 in plot No.1066, 1067,1680 area .24 acres (west), 1687,1231, 1236 measuring one acre in lieu of his full share in the properties of Sk. Phaga as he got the best lands and the rest of the ancestral properties were allotted to the share of defendant No.1 to 10 who are in exclusive possession of the same in assertion of their own right in the said property. The plaintiffs 1& 2 have transferred some portion of their share in plot No. 1066 & 1067 in khata No. 36 to Sk. Rahim by sale and his share in plot 1686 to Sk.
Suleman in Zerpeshgi. The plaintiffs now cannot claim any share in any of the suit property."
38. Seikh Faga died in the year 1940 i.e. after revisional survey records of right was published and during the lifetime of Seikh Faga, the parties were joint in mess and cultivation. Upon death of Seikh Faga, the heirs acquired the status of tenant-in-common and not that of co-tenants. In view of the aforesaid discussions with respect to position under Mohammedan law, there was presumption of jointness in possession, but there was no presumption of jointness in title.
24( 2026:JHHC:8139 )
39. Admittedly, there is no documentary evidence of previous partition. For the purposes of Mohammedan law, there is no unity of title with respect to the inherited property upon death of the common ancestor (Sk. Faga) in the year 1940 but certainly there is unity of possession. There is further no dispute that partition can be oral or in writing even under Mohammedan Law. The plea of oral partition upon death of common ancestor Sk. Faga in the year 1940 was raised by the defendants in the written statement and such plea was required to be examined within the contours of 'unity of possession' even when admittedly there was no 'unity of title'. There can be no doubt that it was for the defendant to prove previous partition as they had claimed that there was previous oral partition.
40. In order to find out as to whether 'unity of possession' was continuing or there was a previous partition, the separate mess and cultivation amongst the co-sharers in the light of other evidences, both oral and documentary, were certainly required to be considered. For that purpose, the appreciation of evidence, be it under Mohammedan Law or under Hindu Law, would be the same. It has to be necessarily examined as to how and in what the manner the family members, who were 'tenants in common', were dealing with the property of the common ancestor after his death. This would be the position even if the concept of 'unity of title' of inherited property is completely excluded under Mohammedan law.
41. For the purposes of examining 'unity of possession', be it under Mohammedan Law or under Hindu Law, the inference drawn from separate mess and cultivation amongst the co-sharers for a long time amongst the previous generations along with other materials particularly the registered deeds dealing with the property are important factors to come to a finding of previous oral partition.
42. The learned 1st appellate court before scrutinizing the evidences on record has observed that it is a settled principle of Mohammedan Law that whole of the estate of a deceased Mohammedan, if he dies intestate, devolves on his heirs at the moment of his death and the heirs succeed to the estate as 'tenant in common' in specified share.
25( 2026:JHHC:8139 ) The court also observed that unlike Hindu Law, birth right is not recognized in Mohammedan law and there is no 'joint tenancy' in Mohammedan law and heirs are only 'tenant is common'.
43. This court finds that the learned 1st appellate court while considering the evidences on record has considered the evidences from the point of view of 'unity of possession' and has considered the specific case of the defendant that oral partition had taken place in the year 1940 between Sk. Charku, the father of the plaintiffs on one hand and four sons of Sk. Faga born of his 2 nd wife on the other hand after death of Sk. Faga and that in the said partition plot Nos. 1066, 1067, 1687, 1231, 1236 and 24 decimals in the west in plot No. 1680 total area 1 acre in khata No. 36 were allocated to Sk. Charku in lieu of his full share in the properties of Sk. Faga as Sk. Charku got the best land and rest of ancestral property were allocated to the other four sons of Sk. Faga and that they were in exclusive possession of the same in assertion of their own right over the said property. In furtherance to the acquisition of exclusive right through partition, the plaintiffs, who are sons of Sk. Charku have also transferred some portion of plot No. 1066 and 1067 of khata No. 36 allotted in their share to Sk. Rahim by executing sale deed and have also mortgaged plot No. 1686 to Sk. Suleman.
44. Before scrutinized the evidences the 1st appellate court mentioned that land of khata no. 11 and 110 stood recorded in the name of Sk. Faga, the common ancestor of the parties to suit and several plots of Khata No. 36 were recorded in the remarks' column of Khatian in possession of Sk. Faga and there was no dispute on this fact.
45. Thereafter the learned 1st appellate court scrutinized the evidences on record, both oral and documentary, held as follows: -
"In view of the evidence on the record referred to above it is crystal clear that the plaintiff-respondents and the defendant-appellants have their separate mess, separate residence, separate cultivating possession of the lands in question and separate residential house soon after the death of Sk. Faga. It further appears that the plaintiffs respondents had also separate dealing of the property in 26 ( 2026:JHHC:8139 ) their exclusive possession by executing sale deed. In view of the facts aforesaid coupled with the principle of law referred to above I hold as a question of fact that the aforesaid facts conclusively prove that there had been metes and bounds partition of the suit property appertaining to khata Nos. 36,11 and 110 as alleged by the defendants."
46. The learned 1st appellate court in para 18 of the judgment also considered the question that only 1 acre of land of Khata No. 36 was allotted to Sk. Charku, the ancestor of the plaintiff and based on evidence recorded that total area of Khata No. 11, 110 and plots of Khata No. 36 recorded in the name of Sk. Faga was 6.79 acres and held after considering the materials on record that since best land was allotted to Sk. Charku, the said partition cannot be said to be unequal. Admittedly, the plaintiffs were claiming 1/5th share only.
47. In the present case, there is clear finding that the parties were separate in possession of the property and mess since 1940. This is in spite of the fact that the property stood recorded in the name of common ancestor Sk. Faga who died sometimes in the year 1940 and continued to be so in spite of his death.
48. From perusal of the impugned judgment itself it is apparent that the plaintiffs in the present case had executed two registered deeds declaring himself to be the owner of the property with respect to the property involved in the deeds. The contents of these deeds are reflected the trial Court's judgment wherein it has been observed as under: -
"......The said registered deeds of sale have been proved and marked a Exts. D and D/1 on behalf of the defendants of which the first shows that the plaintiff No. 2 Sk. Amiruddin has sold out 0.18 decimals of land out of plot Nos. 1066 and 1067 of village Tigoy Ambatoli to one Sk. Rahim for a consideration of Rs. 1000/- on 1.2.1974. Similarly, the plaintiff No. 1 Sk. Bigal has also sold out 0.16 decimals of land from the said plot No. 1066 and 1067 of village Tigoy Ambatoli for a consideration of Rs. 1000/- on 6.2.1974. It appears form the recital of the two deeds of sale that the plaintiffs have sold these lands out of their own share. So, what appears that the plaintiffs have sold some specific land out of their share for consideration and that too at the time when there was an 27 ( 2026:JHHC:8139 ) absolutely no differences between the parties........."
49. The 1st appellate court clearly recorded as a finding of fact that that the plaintiffs and the defendants had their separate mess, separate residence, separate cultivating possession of the land in question and separate residential houses soon after the death of Sk. Faga. The court further recorded that it appeared that the plaintiffs had also been separately dealing with the property in their exclusive possession by executing sale deeds.
50. This court finds that the learned 1st appellate court has rightly taken into consideration that the parties were separate in mess and separate in cultivation since 1940 after the death of common ancestor Seikh Faga and also the aforesaid two registered deeds executed by the plaintiffs, whose recitals showed that the plaintiffs have sold these lands out of their own share, to come to a definite finding of fact that there was previous oral partition and the defendants have been able to prove the same . The aforesaid two deeds in the present case were executed on 01.02.1974(Ext. D) and 06.02.1974 (Ext. D/1) and the Title Suit seeking partition was filed in the year 1982. Such finding of previous oral partition given by the learned 1st appellate court is based on sound appreciation of materials on record and is in consonance with not only in the judgment cited by the learned counsel for the appellants passed by Hon'ble Supreme Court that the party who claims previous partition has to prove the same but also in consonance with the factors to be considered to arrive at a conclusion of previous oral partition as mentioned in the judgement of Hon'ble Madras High Court cited by the learned counsel for the appellants (plaintiffs) and also in consonance with the views expressed by Hon'ble Patna High Court as fully discussed above.
51. In view of the aforesaid discussions this court is of the considered view that the learned 1st appellate court has rightly held as a matter of fact, based on oral and documentary evidences, that there was previous oral partition way back in the year 1940 between the plaintiffs (descendants through 1st wife of Sk Faga) and the 28 ( 2026:JHHC:8139 ) defendant no. 1 to 10 (descendants through 2nd wife of Sk Faga) regarding separate mess and cultivation since 1940 upon the death of Sk. Faga and while considering this aspect of the matter has also taken into consideration that the plaintiffs had also sold part of their allotted share and also mortgaged part of their allotted share by declaring the same to be their own share. This court also holds that such inference can be drawn under Hindu law as well as Mohammedan law when applied to the concept of 'unity of possession' with respect to the properties of a Mohammedan who dies intestate.
The 1st substantial question of law is accordingly answered against the appellants (plaintiffs) and in favour of the contesting respondents (contesting defendants).
52. As a cumulative effect of the aforesaid answers to the substantial questions of law, this appeal filed by the appellants (plaintiffs), who had filed the suit seeking partition, is dismissed.
53. Pending I.A., if any, is closed.
(Anubha Rawat Choudhary, J.) Binit/ Dated: 23.03.2026 Uploaded On: 25.03.2026 29