Judgment:
Radha Mohan Prasad, J.
1. This appeal is directed against the judgment of affirmance passed in Title Appeal No. 23 of 1994 by the 2nd Additional District Judge, Arrah.
2. The suit was filed by the plaintiff-appellant and Respondent 4th set for simple partition claiming 3/5th share in the suit property as according to them the same was purchased from the nucleus of joint family in the name of defendant No. 1 and the plaintiffs, defendant No. 1 and defendant 2nd set are full brothers and sons of late Sadique Md. Khan having equal share of 1/5th in the same. According to the plaintiffs, their father died in the year 1989 and their mother who is alive lives with plaintiff No. 3 and they and their father and mother were members of joint family. Previously, their father Sadique was manager (Karta), who became old and since 1950, defendant No. 1 Mustafa being eldest amongst brothers became the manager (Karta) of the family and was looking after the affairs and management of the family. It is claimed that there was good income from the joint family properties by which properties were being purchased and from the joint family nucleus the disputed land and house having an area of 9 decimals in Plot No. 511 under Khata No. 260 at Bihia Ward No. 4, holding No. 59 were purchased by defendant No. 1 in the capacity of manager of the family about 24-25 years ago and the plaintiffs had faith over him and were also carrying impression that he will safeguard their interest and if any property is purchased in the name of one brother would be for the benefit of all the brothers having equal shares. Their further case is that about 14-15 years ago they separated in food but the properties were not partitioned by metes and bounds rather are still joint and for the sake of convenience all the brothers live separately, earn livelihood separately by cultivation and shops. The plaintiffs subsequently learnt that defendant No. 1 got his name entered in the sale-deed and also got his name mutated with respect to the suit house and when in March, 1991 the defendant 1st set threatened to oust and dispossess them from the suit house, they asked him to partition their shares and on refusal on 2.6.1991 filed the present suit. It is alleged that defendant 2nd set is in collusion with defendant 1st set. Defendant 1st set and 2nd set appeared and filed separate written statements. The contesting defendants pleaded that the suit is not maintainable, plaintiffs have no valid cause of action and there is no unity of title and joint possession over the disputed house and land and, further, that the family of the parties are not joint and they are not members of the joint family. It has also been denied that the suit property was purchased from any joint nucleus of the family and that father of defendant No. 1 was ever manager of the joint family rather all the five sons of Sadique are separate in mess and business and formed individual family of their own. Further, it is stated that the suit is barred by estoppel, waiver and also barred under Section 34 of the Specific Relief Act and the provisions of Benami Transaction Act and the plaintiffs are not entitled to get any relief.
3. The trial Court besides holding that the suit is not properly valued and the court fee paid thereon is not sufficient and also that there was previous partition, held that the plaintiffs have got no unity of title and possession over the property mentioned in Schedule I and not entitled for a decree of partition as claimed, dismissed the suit accordingly. The lower appellate Court on consideration of the pleadings of the parties and the evidence both oral and documentary adduced by them and also considering the law especially that the parties are governed by Mahomedan Law, having no concept of joint family, even if they live in commensality held that the trial Court has rightly decided the main issues and dismissed the suit. The lower appellate Court has upheld the judgment and decree passed by the trial Court and dismissed the appeal on contest with costs.
4. It is contended by the earned Counsel for the appellant that both the Courts have simply proceeded to dismiss the suit by carrying in their mind that parties are governed by Mahomedan law having no concept of joint family and, thus, not entitled for partition without appreciating the law that when the members of Mahomedan family live in commensality and any property is acquired in the name of managing member of the family and is proved that they are possessed by all the member? jointly, the presumption is that they are the properties of the family and not separate properties of the member in whose name they stand. In support of this, he referred to Section 57 of the Principles of Mahomedan Law and also the decision reported in AIR 1932 Calcutta 538. He also ventured to challenged the concurrent findings of fact regarding possession of the suit property and also contended that even the alleged continuous possession of defendant No. 1 over the suit properties as karta of the family from the joint family fund, would not deny the plaintiffs, who are own brothers of defendant No. 1, their 1/5th share in the suit properties.
5. In support of the first point, earned Counsel for the appellant submitted that there cannot be any dispute that Mahomedan are governed by their Personal Law and that there is no law that Mahomedan family are Joint nor there is concept of kartaship or copracenary, but in view of Exhibits series, which stood in the name of all five brothers including plaintiff, clearly Shows that they live in commensality, and thus, the Courts below have erred in law in putting onus upon the plaintiff-appellant to prove that the disputed property is joint. I do not find any substance in the said submission of the earned Counsel for the appellant. The lower appellate Court while holding that the suit by the plaintiff-appellant for simple partition on payment of fixed Court-fee is not maintainable, said that the onus was on the plaintiff-appellate to prove that the dispute property is joint, but, while answering point No. 3, as to whether the findings of the trial Court are bad and against the law, has fully dealt with the evidence oral as well as documentary in paragraph 19 of the judgment and found that some of the purchase made in the joint name go to show that the parties are making acquisition of the property either in the joint name for the sake of convenience by contributing the amount towards purchase from their own income or one or two of them were making acquisition towards their separate property. The Personal Law of Muslims does not recognize the system of joint holding as is common amongst Hindus. The acquisition of property independently by a member cannot, automatical be said to be for the benefit of the family. However, ff there is conclusive evidence that a member of Muslim family, who acquired such properties gained advantage to himself and caused prejudice to others and if such acquisition is traceable to surplus family assets or funds from and out of which the property could have been purchased, then the matters would be different. Again it is also necessary to prove that, the members were living jointly and enjoying the property jointly and the burden of establishing that a property held by a member in Mohammedan family is self acquired property would arise only if the property is held commonly by the other members' of the family and the entire family lives in commensality possessing the family property in common. In the present case. I find that both the Courts have on detailed; consideration of the evidence come to the conclusion that they did not go to indicate that the plaintiff-appellant was joint with his elder brother Mustafa-defendant No. 1 or that the suit properties are joint family acquisition from the Income of joint faithfully rather it has been found that the same is self acquired property of defendant No. 1. In fact, the plaintiff-appellant has failed to prove that the members were living jointly and enjoying the property jointly and in commensality. Thus, the question of shifting burden on the defendant that the suit property itself acquired property did not arise. However, in the present case, both the Courts on consideration of evidence in detail have found that the suit properties are not joint family acquisition from the income the joint family rather the same is self-acquired property of defendant No. 1 and earned Counsel for the plaintiff-appellant has farted to show any infirmity in the findings recorded by the Courts-below. Leaned Counsel for the Respondents has rightly contended that the judgment of both the Courts below are well considered and does not warrant any interference in Second Appeal.
6. In the result, this Court does not find any merit in the appeal and the same is dismissed in limine.