IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.54 of 2005 1. Most. Saleha Khatoon, wife of late Jaldin Miyan 2. Israil Miyan alias Ibrahim Miyan,s/o late Jaldin Miyhan 3. Bibi Bhagia,D/o late Jaldin Miyan,w/o Jokhi Miyan 4. Mainul Nessa,w/o late Raja Mian 5. Sakoor Mian 6. Sarfi Mian 7. Janoob Miyan Sons of late Raza Miyan, All residents of village Sukhi Samara, 8. Jagia wife of Nasir Miyan, D/o late Raza Miyan, resident of Village +P.O. Bheriarwa,P.S. Belahi,Distt. East Champaran. At present village Sukhi Samera, P.S. Palanwa, P.O. Jaitapur, District East Champaran. 9. Mustakim Miyan, s/o late Lal Mohammad Miyan 10. Jidi Hussain, s/o Jan Mohammad 11. Ozir Miyan 12. Birbal Miyan 13. Badsah Miyan Sons of late Amanat Miyan 14. Tajloom Miyan 15. Kamruddin Mian 16. Alam Mian Sons of late Ameer Mian All resident of village Sukhi Semara, P.O. Jaitapur, P.S. Ramgarhwa, (Palanwa), Distt. East Champaran. Defendants-Appellants- Appellants Versus 1. Nasiba Khatoon, wife of late Fissa Mian 2. Ainul Mian alias Bagar Mian son of late Fisa Mian Both residents of village Sukhi Samera, P.O. Jaitapur, P.S. Palanwa, District East Champaran. 3. Hadisan Khatoon, wife of Reyaz Mian, d/o late Fisa Mian, Resident of village Dudhani, P.O. Madresa-tola, P.S. Harsidhi, District East Champaran. 4. Bibi Latifan , w/o Maneer Mian, D/o late Fisa Mian, resident of Vidllage +P.O. Siswa Bazar,P.S. Paharpur,Distt. East Champaran 5. Rahim Mian 6. Salim Mian, Both sons of late Chand Md. Mian, residents of village Sukhi Samera, P.S. Palanwa, P.O. Jaitapur, District East Champaran. 7. Umti Khatoon, w/o Main Mian, D/o late Chand Mian, village + P.O. Jagarnathpur, P.S. Gopalpur, District East Champaran. 8. Fulbani Khatoon, w/o Ash Md. Mian, D/o Chand Md. Mian, resident of village Dubaha, P.O. Dubaha Bakhtaura, P.S. Darpa (Adapur), District East Champaran. 9. Saifun Khatoon, wife3 of Hadi Mian, D/o late Chand Mian, resident of village Barahiya Tola, P.S. Majhaulia, P.O. Mahanwa, District West Champaran 10. Jaibun Khatoon, w/0 Mumtaz Mian,D/o late Chand Mian, - 2 - Village Amodoi, P.S. Ramgarhwa,P.O. Amodai, District West Champaran. 11. Bangoor Mian, son of late Kari Miand, resident of village Sukhi-Semra, P.O. Jaitapur, P.S. Palanwa(Ramgarhwa) ,Distt. East Champaran. …..(Plaintiffs)-Respondents 1st Party-Respondent Ist Party. 12. Khalil Mian, son of late Mohadi Mian 13. Gulab Mian, son of late Ijhar Mian 14. Gaffar Mian 15. Monaf Mian Both sons of late Mohammad Mian. All residents of village Sukhi-Semera, P.O. Jaitapur, P.S. Palanwa, District East Champaran. 16. Nurbani, W/o Hakim Mian, D/0 late Mohammad Mian, resident of Village Kawalpur, P.O. +P.S. Harsidhi, District East Champaran 17. Rabia Khatoon, w/o Bhikhari Mian, D/o late Mohammad Mian, Village Harsidhi, Pakaria, P.O. +P.S. Harsidhi, District East Champaran. …Defendants-Ist Parties-Respondent-IInd Parties. ----------- For the Appellants : M/s Manish Kumar and Sharad Kumar Sinha, Advocates. For the Respondents : None. ---------- 04/ 18.11.2008 Heard learned counsel for the appellants. 2. This second appeal has been filed on behalf of the defendant-appellant-appellants against the judgments and decree of the learned courts below. 3. The matter arises out of Partition Suit No. 26 of 1994 (128/1994), which was filed by the plaintiff-respondent-respondents 1st set for partition of their 1/3rd share in the suit properties detailed in Schedule 1 of the plaint. 4. The aforesaid title suit was decreed on contest without cost by learned Munsif, Raxaul at Motihari vide judgment and decree dated 10.07.1998, which was challenged by defendants 2nd party in Title Appeal No.67 of 1998 (151/2004) but it was dismissed by the learned 4th Additional District Judge, East Champaran by judgment - 3 - and decree dated 06.11.2004. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. The claim of the plaintiffs was that the predecessors of plaintiffs and defendants were recorded raiyats of the ex- intermediaries and after vesting of Zamindari in the State of Bihar under the Bihar Land Reforms Act, the said land came in their joint possession and now the plaintiffs wanted its partition. On the other hand, the claim of the defendant-appellants was that the recorded raiyats after earlier survey abandoned the suit land, which was resumed by the ex-land lord, who again settled the same to their predecessor and after vesting of the Zamindari, Jamabandi was created in the name of the subsequent settlee and hence the plaintiffs had no right to claim partition. It was also claimed by the defendant- appellants that since the parties were governed by the Mohammedan Law, the plaintiffs cannot legally claim the suit property as joint family property nor they could claim unity of title and possession for partition thereof. 6. The learned courts below have very carefully considered the respective pleadings of the parties and the evidence adduced by them in support of their claims, whereafter they specifically arrived at the finding that the defendants had miserably failed to prove the story of abandonment by the previous raiyats and resumption of possession by the ex-land lord. There is nothing to show that the ex-land lord had taken any step with respect to abandonment and resumption as provided under the Bihar Tenancy Act and hence there was no question of accepting the said plea raised by the defendants. - 4 - Furthermore, since their claim of abandonment and resumption was found to be false, there was no question of any subsequent settlement of the said land with any other person including the predecessor in interest of the defendant-appellants. 7. The learned courts below have also rightly found that it is a settled principle of law that the Jamabandi neither creates title nor indicates possession and in support thereof no valid or legal evidence has been produced by the defendant-appellants. Furthermore, neither any rent receipt standing either in the name of Mahar Ali Mian or in the name of Umar Ali Mian has been filed by the defendant- appellants nor they or their heirs have been produced by the defendant-appellants nor the said heirs ever came before the court to claim the land mentioned in Schedules II & III of the written statement. Thus, the defendant-appellants or their witnesses could not give any explanation with respect thereto and hence their claim even regarding defect of parties was rightly rejected by the learned courts below. 9. So far the other question with regard to joint family is concerned, no doubt the concept of joint family as prescribed in the Hindu Law is not available under the Mohammedan Law but if a person dies leaving behind several heirs, they may not be co-parceners or members of the joint family, but there is no doubt that they will inherit and will be tenants in common jointly holding the properties as co-sharers and hence they are fully entitled to claim partition of the ancestral properties by metes and bounds on the basis of unity of title and possession. - 5 - 9. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/f ( S. N. Hussain, J. )