Md .Bashiruddin and Others V. Md. Cheraquddin and Others 7 BLD( HCD) 436

Facts in Brief

The defendant purchased the suit lands from the co-sharers of the plaintiff by kabala deed. The further case of the plaintiff petitioners is that although defendant opposite parties have purchased the shares  from three different  sharers. They could not enter into possession of the suit properties that there was a proceedings under section 107of the code of Criminal Procedure Code. When the defendant opposite parties tried to enter into possession of the suit properties , he failed. That the defendant opposite parties cannot get entry into the suit land without partition. The plaintiff petitioners filed this present suit for permanent injunction for restraining the defendant opposite parties from entering into the suit land.

Issues

Whether the defendant- appellant petitioner is entitled to get the possession of the land.

whether the plaintiff is entitled to get permanent injunction .

Rule of Law

Section 44 of the Transfer of property Act 1882.

 Section 107 of  CrPC, 1898.

Section 4 of the Partition Act.

Application  to the fact

Defendant petitioners are in peaceful possession of the suit land on the strength of their purchase. That the plaintiff petitioners have no rights, title or interest in the suit land. The learned munsif upon hearing the parties decreed the suit in part and restrained the defendant opposite parties from entering into suit plots.The defendant appealed against the decree and appeal court considering the evidence, circumstances said that the contentions of the plaintiff petitioners were not tenable. Then the plaintiff appealed in HCD for restraining the defendant from entering the possession.It was submitted that the learned subordinate Judge did not commit any error in the facts. The HCD saw that it has also been proved and been admitted by the plaintiffs that the defendant opposite parties have acquired title from co- sharer of the plaintiff. The co- sharers independent huts which were purchased by the defendant opposite parties and they having been possession by their transferor and their dwelling place having been separated from physical component of the original homestead and being no longer part of original homestead .So in such circumstances, the first part of section 44 of the Act of 1882 will come into operation.

Decision

It was held  that the transferees are entitled to get possession and common enjoyment of the property as vendors co-sharers used to enjoy possession and benefit arising out there.

Conclusion: 

The undivided shares of the defendant and plaintiff may be divided by metes and bounds by way of partition suit till the defendant opposite parties are entitled to maintain their possession. The rule is discharge.