IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.137 of 2008 1. Md Jahangir 2. Md Azad 3. Md Sahzad All sons of late Md Raza Karim resident of village Makhdumpur Darh P.S. Sikandra now Chandradeep Dist. Jamui 4. Md Illiyas s/o late Md Jabbar 5. Md Sageer 6. Md Sshail 7. Md Meraj 8. Md Seraj @ Md Siraj All sons of Md Illiyas 9. Babby Khatoon @ Bibi Khatoon d/o Md Illiyas resident of village Raice P.S. Pakari Verama Dist. Nawada at present resident of village Makhdumpur Darh P.S. Sikandra now Chandradeep Dist. Jamui 10. Md Yusuf s/o Md Sahud 11. Md Inayat Hussain 12. Md Khalid Both sons of Md Yusuf 13. Rubi @ Rubi Khatoon 14. Daulat @ Daulat Khatoon 15. Nemat @ Nemat Khatoon All daughters of Md Yusuf All resident of village Araha P.S. Chandradeep Dist. Jamui Plaintiffs- Appellants- Appellants Versus 1. Md Ilyas s/o Md A. Rafique @ Guddan resident of village Kakrar PO Hussainabad P.S. Ariyari Dist. Sheikhpura 2. Md Sahid Eqbal 3. Md Jahid Eqbal Both sons of late Ali Murtaza @ Mogel 4. Zubeda Khatoon w/o late Murtaza Ali @ Mogel resident of village Makhdumpur Darh P.S. Chandradeep Dist. Jamui 5.Husna Kahatoon d/o late Ali Murtaza @ Mogel w/o Md Aziz resident of village Rayish Pakri Verama Dist. Nawada 6. Uzma Khatoon d/o late Murtaza w/o Md Shaquil resident of village Arha P.S. Sikandra Dist. Jamui 7. Salma Khatoon d/o late Ali Murtaza w/o Md Masood resident of village Pachna P.S. Sheikhpura Dist. Sheikhpura Defendants – Respondents-Respondents Ist set 8.Md Fayaz s/o Md Illiyas resident of village Makhdumpur Darh P.S. Sikandra Dist. Jamui 9.Bibi Sabiya Khatoon w/o Md Rizwan resident of village Makhdumpur Darh P.S. Sikandra Dist. Jamui Plaintiffs – Appellants-Respondents 2nd set --------------- For the appellants: Mr Nageshwar Pd Sinha, Advocate Mr Umashankar Verma, Advocate For the respondents: Mr Raghib Ahsan, Sr. Advocate Mr. Deepak Kumar Singh, Advocate ------------------- 07/ 16.03.2010 Heard learned counsel for appellants and learned - 2 - counsel for the respondent Ist set. 2. This second appeal has been filed by the plaintiffs- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.1 of 1988 which was filed by the plaintiffs- appellants for declaration of their title over suit land measuring 5.70 acres of different plots of village Makhdumpur Darh in the district of Jamui fully detailed in Schedule I of the plaint. The aforesaid suit was dismissed on contest by the learned Munsif, Jamui vide his judgment and decree dated 30.11.1993. 4. Against the aforesaid judgment and decree of the learned trial court, the plaintiffs- appellants filed Title Appeal no.5 of 1994 which was also dismissed on contest by the learned Additional District Judge III, Jamui, vide his judgment and decree dated 15.02.2008. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the learned courts below raising three points namely (i) that the learned courts below wrongly held that there was no concept of joint family and joint fund in the Mahomedan Law; (ii) that the learned courts below wrongly relied upon certified copy of the judgment of Title Suit no. 50 of 1957 (exhibit I) although it was inadmissible in evidence as per requirement of section 43 of the Indian Evidence Act, 1872; and (iii) that both the learned courts below wrongly relied upon deed of gift (exhibit B) and deed of Bai Mokasha (exhibit A), as it was not proved as per - 3 - requirement of sections 47, 67, 73 of the Evidence Act. 6. So far the first question raised by learned counsel for the appellants is concerned, section 57 of the Mulla„s Mahomedan Law (18th edition) specifically provides that “when the members of a Mahomedan family live in commensality, they do not form a joint family in the sense in which that expression is used in the Hindu law. Further, in the Mahomedan law, there is not, as in the Hindu law, any presumption that the acquisitions of the several members of a family living and messing together are for the benefit of the family. But if during the continuance of the family properties are acquired in the name of the managing member of the family, and it is proved that they are possessed by all the members jointly, the presumption is that they are the properties of the family, and not the separate properties of the member in whose name they stand”. 7. Both the learned courts below have very carefully gone into the aforesaid issue and have held that in view of the aforesaid provision of law there was no concept of joint family in the Mahomedan law as there is in Hindu law. It was also found that neither any witness stated about keeping of the account of usufruct of the family by Ali Murtaza or by the predecessor of Ali Murtaza, nor there is anything to show that joint family was continuing or Ali Murtaza and his brother had any joint fund. Hence in the said circumstances, there can not legally be any presumption that the suit properties belonged to the family and are not separate properties of the person in whose name the properties stand. In the said circumstances, this court does not find any substance in the aforesaid submission raised by learned counsel for the appellants. - 4 - 8. So far the second question raised by learned counsel for the appellants is concerned, it was the specific claim of the plaintiffs- appellants themselves that one Md Safique had some properties and he left behind two sons namely Ali Murtaza and Raza Karim who came in possession of the said properties where after Raza Karim died about 30 years ago where after Ali Murtaza became the guardian of the joint family and during that period Ali Murtaza acquired 15 to 16 bighas of lands in his own name but since it was also joint family properties there was a partition fifteen years ago between the said Ali Murtaza and the plaintiffs-appellants who were the successor–in-interest of Raza Karim, according to which the suit lands fell into the share of the appellants. It is quite apparent from the record of the case including judgments and decree of the learned courts below that absolutely no detail was given by the plaintiffs with regard to the alleged partition nor even date thereof could be given nor any separate laggit for mutation was created. In this background a reference has been made by the learned courts below with respect to the judgment passed in Title Suit no. 50 of 1957 which was marked as exhibit I in the instant suit, specially in view of the admitted case of the parties that the suit properties were acquired in the name of Ali Murtaza only. Hence in the said circumstances, the learned courts below arrived at the specific findings that the acquisition of the suit land by Ali Murtaza can not legally be deemed to be acquisition of the entire family making specific reference to section 57 of Mulla„s Mahomedan Law. 9. So far the third question raised by learned counsel for the appellants is concerned, it is apparent that exhibit B is the registered deed of gift dated 16.04.1974 executed by Ali Murtaza (original defendant no.2) in - 5 - favour of Abu Mohammad (who died prior to the filing of the suit) with respect to the suit properties whereas exhibit A is Baimukasa dated 04.08.1976 executed by the aforesaid Abu Mohammad in favour of his wife Zaitun Nisa (defendant no.1) with respect to suit properties. Furthermore, exhibits D/1, D/2 and D/3 are the sale deeds dated 02.02.1977 through which wives of the three plaintiffs purchased some lands out of the suit land from Ali Murtaza showing respondent no.1 in the boundary of the said purchased land. None of these documents have been challenged by the plaintiffs- appellants that they were not executed by Ali Murtaza. The only question raised was whether Ali Murtaza had any right, title and authority to execute deed of gift (exhibit B) and whether husband of defendant no.1 had acquired any right, title and interest in the suit properties on the basis of the said deed (exhibit- B) to transfer it to his wife by deed of Baimukasa (exhibit A). In the said circumstances, the execution of the said deed having not been challenged by the plaintiffs-appellants and having been specifically admitted by the executant who was also a party to the suit, there is no violation of any provision of law in consideration of the said document by the learned courts below specially when both the courts below after considering the pleadings and evidence of the parties came to concurrent findings of facts that Ali Murtaza was in exclusive possession of the suit land and after the deed of gift, his donee Abu Mohammad came and remained in possession and after he transferred it to his wife defendant no.1 she came and remained in exclusive possession of the suit lands. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned - 6 - courts below, nor does it find that any substantial question of law is involved in the instant second appeal, which appears to be absolutely frivolous and misconceived. Accordingly this second appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)