JUDGMENT
G.C. Bharuka, J.
1. This appeal has been filed by the plaintiff against the judgment and decree dated 22-8-1974 passed by First Additional Sub-
161 of 1969
Judge, Bhagalpur in Title Suit No. —————-
28 of 1973
2. The above suit had been tiled by the appellant for partition of a residential house standing on a plot of land being part and parcel of Bhagalpur Municipal Holding No. 47, Ward No. 7, Circle No. 12 lying in Bhaiolal lane in Mohalla Champanagar within the town of Bhagalpur. According to him, he has acquired one-third share in the suit property being the bona fide purchaser from Bibi Hamida Khatoon by a registered sale-deed dated 21-7-1969 (Ext. 1). According to him, the suit property was acquired and owned by one Hichu Mian, who had died leaving behind him one son and one daughter, namely, Mohammad Mian and the vendor of the plaintiff, Bibi Hamida Khatoon. Therefore, in view of the law applicable to Hanili School of Mohammedan law, his vendor had acquired a subsisting right, title and interest to the extent of one third share in the suit property. The heirs of Mohammad Mian. Bibi Hamida Khatoon and the purchasers through the sons of Mohammad Mian have been made defendants in this case.
3. The case of the contesting defendants being the sons of Late Mohammad Mian and the purchasers through them is that the suit properties have been self acquired by Late Mohammad Mian and therefore his sister Bibi Hamida Khatoon had not acquired any share in the property, as such the plaintiff being a purchaser from her is not entitled to any relief as claimed by him. Therefore, the only question which needs to be decided is whether the suit property was acquired by Hichu Mian or his son Mohammad Mian.
4. The parties to the suit have led both documentary as well as oral evidence to make out a case in their favour. The trial court on appreciation of the evidence on record took the view that the property had been acquired by Mohammad Mian and as such, neither his sister nor the plaintiff, as a purchaser through her, is entitled to any share in the suit property. Accordingly, the suit was dismissed.
5. Mr. Asghar Hussain, learned Counsel appearing for the appellant, has submitted that keeping in view the sale deeds dated 19-8-1885 (Ext. 1/a), 23-12-1896 (Ext. 3) and 1-1-1908 (Ext. 3/A) executed respectively by one Shyam Lal and Tamassuk, the Municipal Survey Khatian No. 1902-1904 (Ext. 4), the rating and valuation list of the Municipality (Ext. 5), the Yadasht (Memorandum of partition) executed by the sons of Mohammad Mian (Ext. B) as also the statements made in the written statements of defendants No. 3, 6 and 12 it is clear that the court below has misdirected itself in holding that the suit properties have been acquired by Mohammad Mian and therefore, his sister Hamida had no interest in the same, According to him, on a careful and reasonable consideration of the oral and documentary evidences, the irresistible conclusion to be drawn is that the disputed property was acquired, owned and possessed by Hichu Miah and the same had come in the hands of Mohammad Mian and his heirs only as successors.
6. On the other hand, Mr. S. K. Mazumdar learned Counsel appearing for the contesting defendants, has submitted that there is not an iota of evidence on the record which can conclusively show that the suit property bad been acquired by Hichu Mian. According to him, the sale deeds Exts. 1/a, 3 and 3/A have been executed by some of the residents of Champanagar who have absolutely no concern with the suit property. According to him the appearance of the name of Hichu Mian on the boundaries of the properties sold under those documents is of no consequence for drawing any inference in relation to the acquisition of the suit property. His further nub-mission is that some narrations in the Yadasht (Ext. B) to the extent that Bibi Hamida, the vendor of the plaintiff, had relinquished her share can be understood only in the sense that since she has no subsisting share in the property, therefore, she was not claiming anything of that nature. He has also invited my attention to the oral evidences of PW 2 Haji Tahir, who is the son of Bibi Hamida, and PW 4 Rafikul Haque, the son-in-law of Bibi Hamida, who have said during the course of examination that the disputed property as well was acquired by Mohammad Mian and has been in his possession and is being subsequently possessed by his sons.
7. The trial court on detailed consideration of the oral and documentary evidences as well as the pleadings of the parties has come to the conclusion that the plaintiff has failed to establish the title of his vendor. Keeping in view the detailed discussions in the trial court judgment I do not propose to enter into any detailed consideration of those evidences except to the extent it is material for recording my own findings keeping in view the submissions made at the Bar.
8. It cannot be disputed that for seeking the relief, as claimed by the plaintiff, the onus was entirely on him to establish the title of his vendor, namely, Bibi Hamida, who is said to have acquired one-third share in the suit property being the daughter of Hichu Mian, Therefore, the sole question is whether Hichu Mian had any right, title and interest in the suit property.
9. I have examined the documentary evidences placed on record through which the plaintiff intended to establish the ownership of Hichu Mian in the property. The sale deeds (Exts. 1/a, 3 and 3/A) no doubt show that one Hichu Mian was on the boundaries of the property sold under those documents but the sale deeds do not show the exact description of the land or their plot or holding numbers which were sold through those documents. From these documents, it cannot at all be inferred that Hichu Mian was the owner of the suit property. The same is the situation with regard to the municipal records being Exts. 4 and 5. In these official records though some entries bear name of some Hichu Mian but none of the entries are suggestive of the facts that Hichu Mian was the owner of the property in question. Therefore, there is no documentary evidence on record which even on application of any liberal or reasonable rule of construction can be said to be suggestive of the facts that the suit property had been acquired by Hichu Mian. These documents as best show that one Hichu Mian had some immovable property at Champanagar but the question still remains unanswered to the extant that the said Hichu Mian was the same as the one, who was the father of the vendor of the plaintiff and further that the property referred to in the aforesaid documents was the very property which is under dispute. PW 2, the son of Bibi Hamida, has admitted in his cross-examination that his grand-father (Nana), namely, Hichu Mian was a resident of village Dumaria under Amarpur PS and his maternal uncle (Mamu), namely. Mohammad Mian was doing the business of Khichri Faros at Champanagar. Though in examination-in-chief he has said that the suit property was acquired by his Nana but in cross-examination he has deposed that apart from Holding Nos. 31 and 32 even the disputed Holding 47 had been acquired by his Mamu, Mohammad Mian.
10. Mr. Asghar Hussain, learned Counsel appearing for the appellant, has submitted that the deposition of these witnesses should be constructed in a reasonable manner so as to infer a consistency and the statement of PW 2 that even Holding No. 47 was acquired by his Mamu, in his cross-examination should be taken to be bona fide error on his part. In my opinion, even if this submission of Mr. Hussain in accepted, it remains a fact that Mohammad Mian had acquired the properties at Champanagar out of his own earning and efforts, if that be so that in absence of any cogent and specific evidence showing that the disputed property being Holding No. 47 had been acquired by Hichu Mian, it is difficult to hold that the vendor of the plaintiff had any share in the property. Since the onus lays exclusively on the plaintiff to prove the title of his vendor in order to got the relief claimed and he having failed to discharge the same, I am left with no option but to dismiss the appeal.
11. Ordered accordingly. But in the facts and the circumstances of the case, there will be no order as to costs.
