Gazi Mohammad Riazul Huq v. Mahbubal Fattah Purkait
1980-06-11
PRADYOT KUMAR BANERJEE
body1980
DigiLaw.ai
Judgment : This appeal at the instance of the plaintiff’s arises out of a suit for declaration of title and partition. The plaintiff’s case is that the suit plot belonged to one Algunpari Bibi. On the death of Algunpari the suit property was inherited by her two sons, one daughter and husband, namely, Azad Bakta Molla, Safi Molla, Subuta Bibi and Bahar Ali. Algunpari's husband, Bahar Ali sold his share of the suit plot to Hamidunnessa Bibi who used to possess a part of the plot. On the death of Hamindunnessa her share was possessed by her two sons, Abdul Kuddus and Abdur Rauf and daughter, Momina Moslem. The twelve annas share and Safi Molla, being the children of Algunpari, they were in possession of the northern part which was converted into danga by them. The plaintiff’s purchased the 12 annas share of Sabura Bibi, Azad Bakta and Safi Molla, being the children of the admitted owner of Algunpari Bibi. In short, according to the plaintiff’s they have title to 12 annas share of the suit plot on the strength of the purchase made by them from the children of the admitted owner, Algunpari Bibi and the defendants have title to the 4 annas share of the plot on the basis of the purchase made by their vendors from Algunpari Bibi’s husband, Bahar Ali. The record of rights has been challenged to be erroneous having been recorded in the name of Hamidunnessa Bibi in full in respect of the plot in question. 2. The defendant Nos. 1 and 2 contested the suit by filing a written statement contending, inter alia, that Algunpari Bibi having died childness the suit plot was inherited solely by her husband, Bahar Ali. Bahar Ali sold the entire suit plot to Hamidunnessa Bibi in the year 1939. Hamidunnessa possessed the entire plot and on her death her heirs possess the entire plot. The defendants purchased the entire suit plot from the heirs of Hamidunness and are in possession of the name and the entire suit plot has been correctly recorded in the name of two sons of Hamidunnessa. So the defence case, in short, is that the plaintiffs have no title and possession of the suit plot. It appears from the written statement that the defendants also pleaded if it is found that the plaintiffs are co-shares. 3.
So the defence case, in short, is that the plaintiffs have no title and possession of the suit plot. It appears from the written statement that the defendants also pleaded if it is found that the plaintiffs are co-shares. 3. The court of first instance held in favour of the plaintiffs. On appeal by the defendants, the Appellate Court however held that the defendants are in possession of the lands transferred by Bahar Ali adversely to the plaintiffs and the suit is barred by limitation. 4. It has been stated before me in this appeal that the question of uster was argued by both the parties and the plaintiffs appellants contenteded that on the finding of fact both the courts held that after the death of Algunpari Bibi, her two sons, one daughter and husband inherited the property in question. This finding of fact cannot be challenged before me being the concurrent finding of fact of both the courts below. It must be stated that it was found concurrently by both the courts that the defendant’s predecessors as also the predecessors of the plaintiff’s are the heirs of Algunpari Bibi, being her sons, daughters and husband. 5. Now the question is whether the suit is barred by limitation and adverse possession and consequently after it has been held that the plaintiffs are the co-sharers, whether the defendants have been able to prove ouster on the evidence on record as considered by the Appellate Court. The Appellate Court below considered three evidence against the plaintiffs. Firstly, Bahar Ali executed the dead as far back as in 1939 and the defendants were in exclusive possession of 16 annas share in respect of the property in question. Secondly, the record-of-rights which was recorded in 1956-57 shows that the proforma defendants Nos. 5 and 6 who got their rights by way of purchase form their predecessor-in-interest. Hamidunnessa Bibi, were in possession of the property. Thirdly, it is stated in the Deed of Exchange executed by the plaintiffs and their uncle on the 4th of November, 1968 that the property was exchanged with the lands of defendants Nos. 1 and 2. These lands of defendant Nos. 1 and 2 appertaining to the record as Plot No. 643 are involved in the suit.
Thirdly, it is stated in the Deed of Exchange executed by the plaintiffs and their uncle on the 4th of November, 1968 that the property was exchanged with the lands of defendants Nos. 1 and 2. These lands of defendant Nos. 1 and 2 appertaining to the record as Plot No. 643 are involved in the suit. However on the basis of these three evidences the learned Appellate Court held on the question of fact that the plaintiff’s suit is barred as the defendant Nos. 1 and 2 possessed the suit land as full owner adversely against the knowledge of Azad Bakta, Safi Molla and Sabur Bibi who were all resident of the same locality by asserting the hostiled title even against the co-sharers. 6. It is clear from the principle as laid down by the Supreme Court in (1) P. Lakshmi Reddy v. L. Lakshmi Reddy, a case, reported in AIR 1957 SC 314 in paragraph 4, that in order to prove ouster it is necessary for the defendant to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. It is admittedly true that the possession of one co-hair is considered in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. It is stated in the said paragraph (4) that there are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded their takes no steps to vindicate his title. In the present case, in my opinion, however, the facts as found by the lower Appellate Court on the question of adverse possession, go to show that the defendant’s predecessors-in–interest were notoriously holding the property of their own. Even Ext.
In the present case, in my opinion, however, the facts as found by the lower Appellate Court on the question of adverse possession, go to show that the defendant’s predecessors-in–interest were notoriously holding the property of their own. Even Ext. B which is a Deed of Exchange executed by the plaintiff’s father and uncle, admits the position that Hamidunnessa was in possession of the 16 annas share exclusively in the property by way of purchase from Bahar Ali in the year 1939. No one asserted the title adverse to Hamidunnessa’s continuous right in respect of possession of 16 annas share in the property. Hamidunnessa did not allow her co-shares to maintain any right in respect of the property in question. In that view of the matter, in my opinion, the learned lower Appellate Court is right in holding that the defendants have proved their title by adverse possession even s against the co-sahres inasmuch as even when the record-of-rights was made, recording the defendant’s right therein, the plaintiff’s predecessors did not challenge the same. It is quite true that the record-of-rights does not create title or extinguish it. But when possession is important the record-of-rights may show who is in possession of the property in question and the record-of-rights is presumed to be correct as regards in possession, if it is not otherwise rebutted. In this case, in my opinion, that presumption could not be rebutted by the plaintiffs s the record is in favour of the proforma defendants Nos. 5 and 6. In that view of the matter in my opinion the appeal should fail. The appeal is therefore dismissed. There will be no order as to cost.