Bashiruddin v. Jameela Khatoon — 1993 DIGILAW 119 (MP)

JUDGMENT S.K. Dubey, J. -- 1. The defendants/appellants aggrieved of the judgment and decree dated 24.2.1986 passed by Additional Judge to the Court of District Judge, Shivpuri, in Civil Appeal No. 24-N82, which confirmed the judgment and decree dated 25.11.65 passed in Civil Suit No. 30-N63 by the Civil Judge Class II, Karera, have preferred this second appeal, which was admitted by this Court on the following substantial question of law: "Whether in the facts and circumstances of the case, the Courts below erred in law in summarily rejecting the defendant's case without appreciating the relevant law and, therefore, the impugned judgment" and decrees being vitiated are liable to be set aside?" 2. Facts giving rise to this appeal are thus: Maulabux and Noor Mohammed were the sons of Chand Mohammed. Abdul Razzaque (plaintiff No.1) and Nazmul Haq (plaintiff No.2) are the sons of Maulabux. Bashiruddin and Ahmed Hasan (the defendants) are the sons of Noor Mohammed. Maulabux purchased the property described in para 1 of the plaint vide registered sale-deed dated 27.12.1938 for a consideration of Rs. 330/-. The plaintiffs averred that the suit house, denoted by numbers 1 to 7 in the plaint-map, described in para 1 of the plaint, and the other denoted by numbers 8 to 11 in the plaint-map and described in para 2 of the plaint, were owned and possessed by Maulabux, and after his death, by the plaintiffs, who were keeping their household articles in two houses by putting their locks. About eight years prior to the institution of the suit, the defendants broke the locks and occupied the two suit houses unauthorisedly. The plaintiffs having come to know of breaking of the locks and their dispossession, lodged a report on 3.7.1954 (Ext. P/l) at P.S. Khaniya Dhana, and asked the defendants to restore their possession, but the defendants instead of handing over the possession, demanded partition and their shares in the property, hence, the plaintiffs had to institute the suit for declaration, possession and mesne profits. The defendants in their written-statement admitted purchase of the suit house, described in para 1 of the plaint by Maulabux, but contended that Maulabux, as the head of the family purchased the house in his name with the funds of the family. The defendants in their written-statement admitted purchase of the suit house, described in para 1 of the plaint by Maulabux, but contended that Maulabux, as the head of the family purchased the house in his name with the funds of the family. As regards other house described in para 2 of the plaint, the defendants submitted that it devolved on them from their ancestors, therefore, it was contended that the defendants are in possession of the property in their own right, and the plaintiffs, to defeat the claim of the defendants for partition, have instituted the suit. A plea of limitation was also raised. 3. The trial Court on the evidence adduced by the parties, held that the suit house described in para 1 of the plaint was acquired and purchased by Maulabux; the plaintiffs were in possession of the two houses as owners; the plaintiffs and the defendants were not living in commensality, they did not form a joint family, and acquisition of the house described in para 1 of the plaint by Maulabux was not for the benefit of the family; the defendants unauthorisedly dispossessed the plaintiffs after breaking the locks, hence, decreed the suit. 4. Aggrieved of the judgmentand decree, the defendants preferred an appeal. During the pendency ofthe appeal, Abdul Razzaque (plaintiff No. 1) died, whose legal representatives were brought on the record. The first appellate Court after reappraisal of the evidence, concurred with the findings of the trial Court and held the story as put up by the defendants that they were in possession of the suit house since last 17-18 years and the suit property is a joint property, which has not been partitioned, as not correct. 5. The first appellate Court after reappraisal of the evidence, concurred with the findings of the trial Court and held the story as put up by the defendants that they were in possession of the suit house since last 17-18 years and the suit property is a joint property, which has not been partitioned, as not correct. 5. Shri K.B. Chaturvedi, learned counsel for the appellants, contended that Chand Mohammed was the common ancestor, and since the time of the common ancestor, the two brothers, namely, Maulabux and Noor Mohammed and their family members were residing jointly and occupying portion of a big house which had its compound and a common door, thus, the members were living in commensality, possessing the family property in common and in jointness, therefore, acquisition of the suit house described in para 1 by Maulabux, who was the eldest and managing member of the family, will be presumed to be for the benefit of the members of the family, as he was in a fiduciary capacity, hence, to defeat the claim of partition, the plaintiffs came with a made up story so that the defendants who were living jointly in the suit property, be dispossessed. It was also contended that as the defendants have led evidence that they were in possession of the two suit houses in exclusion to the plaintiffs since last 20 years, they perfected their title by adverse possession, and the suit was barred by limitation. To support the contentions, learned counsel cited 1984 MPWN SN 449 - Sheikh Jangood v. Gulshanbai; AIR 1932 Calcutta 538 - Aminaddin Munshi v. Tajaddin & others; AIR 1963 PATNA 128-Mst. Bidi Bintul Fatma & another v. S.M. Aftab Ahmad, and few decisions on perfection of title by adverse possession. 6. On the other hand, Shri N.K. Jain, learned counsel for the respondents supported the judgment and decree of the two Courts, and contended that the findings arrived at are the findings of facts, hence, cannot be disturbed in second appeal. Bidi Bintul Fatma & another v. S.M. Aftab Ahmad, and few decisions on perfection of title by adverse possession. 6. On the other hand, Shri N.K. Jain, learned counsel for the respondents supported the judgment and decree of the two Courts, and contended that the findings arrived at are the findings of facts, hence, cannot be disturbed in second appeal. Under the Mohammedan Law jointness of family is not recognised, nor the Law recognises tenancy-in-comon in Mohammedan family, therefore, acquisition of property independently by the member, which is admitted, cannot automatically be said to be for the benefit of the family in the absence of conclusive evidence to the effect that the suit property was acquired from the family assets or funds, and for that there is no evidence, therefore, the property described in para 1 of the plaint by Maulabux remained the property of Maulabux alone, and after his death, of the plaintiffs. About the other house also, there is a specific finding recorded by the two Courts that the said house was owned and possessed by the plaintiffs. Shri Jain, to meet the case of adverse possession, submitted that a co-owner cannot set up a title in himself by being accidentally in possession of such property to the exclusion of others, unless a specific case of ouster is pleaded and made out, which was not found proved by the two Courts. 7. Under the Mohammedan Law, jointness of family is not recognised at all, though various members of a Mohammedan family live in commensality, they do not form a joint family in the sense in which that expression is used with regard to Hindu Law, and there can be no presumption of jointness in favour of the joint family. See paragraph 57 of Mulla's Principles of Mahomedan Law, Nineteenth Edition. 8. As there is no presumption of jointness in favour of the joint family as in Hindus, a Mohammedan succeeds individually and the succession opens at the time of death of holder with the shares clearly and specifically defined. But where the heirs continue to hold the estate without dividing it, they continue to hold it as tenants-in-common and one can bring a suit for recovery of his share. But where the heirs continue to hold the estate without dividing it, they continue to hold it as tenants-in-common and one can bring a suit for recovery of his share. See AIR 1971 SC 2184 -Syed Shah Gulam Ghouse Mohiuddin & others v. Syed Shah Ahmad Mohiuddin Kamisul Qadri; 1970 JLJ 849 -Tikamchand v. Rahim Khan & others; and 1989 RN 57 = 1989 MPLJ 178 -Abdul Karim & others v. Hafij Mohammad & others. 9. It is also not correct to say that a Mohammedan cannot' acquire property jointly or anyone of them cannot acquire property meant for the joint use of others. A property, if purchased by one brother, when the two brothers live together jointly, cannot be presumed to be the property purchased jointly, assuming the brothers carryon certain business jointly, unless the property is acquired jointly by members of the family living in commensality and messing together and the property is purchased from the funds of such family. See paragraph 57 of the Mulla's principles of Mahomedan Law. 10. Therefore, to prove that the property described in para 1 of the plaint was joint and was acquired in the continuance of the family living jointly, it was necessary to adduce evidence that the Mahommedan family was living in comensality messing together, and during continuance of the family, property was acquired from the family funds and business in the name of eldest member of the family. If the property so acquired was possessed by all members jointly, then only a presumption could have arisen that the property is joint and not a separate property of the member in whose name it stands. 11. There is no evidence that the acquisition of property by purchase was from the family assets or funds, in the absence of the same and in the absence of conclusive evidence that the two brothers were not living in commensality and messing together, and also enjoying the property jointly and in common, in my opinion, the two Courts rightly held that the property purchased by Maulabux in his name was his own. 12. 12. As regards the other house described in para 2 of the plaint, since the shares of heirs on death of a Mohammedan holder are defined, the defendants were bound to prove that on death of Chand Mohammed, the father of the defendants was enjoying the property as tenant-in-common, and, as such, they are entitled to their specific shares; after the death of their father. The two Courts have not found proved the case as set up, on the other hand, the Courts have found that the two houses were owned and possessed by Maulabux, and the other brother namely Noor Mohammed, the father of the defendants, was not enjoying the suit house described in para 2 of the plaint, as a tenant-in-common after the death of Chand Mohammed, therefore, the defendants were not entitled to resist the claim of the plaintiffs. 13. Regarding perfection of title by adverse possession:-- As the two Courts have found that the defendants unauthorisedly dispossessed the plaintiffs prior to the expiry of period of twelve years before the institution of the suit, I need not to deal with the contention, as the appeal was not admitted on that. 14. In the result, the appeal has no merit, and is dismissed with no order as to costs.