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2003 DIGILAW 435 (JHR)

Md. Zaul Mian v. Md. Shamim

2003-04-07

P.K.BALASUBRAMANYAN, R.K.MERATHIA

body2003
ORDER 1. The defendants in TS No. 73/1983 on the file of the Subordinate Judge 2nd Court at Dhanbad are the appellants in this Letters Patent Appeal. The plaintiffs, the respondents herein, filed the suit, inter alia, for a declaration of their title over plaint. A schedule including the plaint B schedule structure and for recovery of possession on the plea that the B Schedule structure had been let out to the first defendant by their assignor Saleem Ansari in the alternative, the plaintiffs claimed recovery of possession on the strength of their title, According to the plaintiffs, the plaint. A Schedule property was obtained by one Abdul Gani on a partition between himself and his brothers. On the death of Abdul Gani. the property devolved on his four sons including Fashi Ahmad and Nabi Hussain. There was a partition among the four brothers, the sons of Abdul Gani and Schedule A property was allotted to the share of Fashi Ahmad. Fashi Ahmad sold the property to one Saleem Ansari and his brother under Annexure-7 dated 2.5.1968. There was a partition among Saleem Ansari and his brothers, and the property exclusively vested in Saleem Ansari. Saleem Ansari in turn, sold the property to the plaintiffs on 7.1.1983 and this was followed by a rectification deed dated 3.10.1983. Thus the plaintiffs had become the absolute owners of the plaint. A Schedule including the structure described as plaint B-Schedule. The structure, plaint B Schedule, was put up by Saleem Ansari and he put the same in the possession of defendant No. 1 as a tenant on a monthly rent of Rs. 250/-. While defendant No. 1 was thus in possession as a tenant of the building, he had inducted defendant No. 2 into possession. Inspite of a notice being given of the assignment in favour of the plaintiffs, no rent has been paid by defendant No. 1 to the plaintiffs. In that situation the plaintiffs were entitled to recover possession of the plaint B- Schedule on the ground of default of rent, bonafide personal requirement and subletting by defendant No. 1 to defendant No. 2. In the alternative, the plaintiffs were entitled to recovery of possession on the strength of their title. Thus the suit was filed for recovery of possession. 2. The first defendant disclaimed any right or possession over the property in question including the B-Schedule structure. In the alternative, the plaintiffs were entitled to recovery of possession on the strength of their title. Thus the suit was filed for recovery of possession. 2. The first defendant disclaimed any right or possession over the property in question including the B-Schedule structure. He denied the letting to him by Saleem Ansari and also denied that he had sublet the building to defendant No. 2. He pleaded that he was only a worker in the workshop constructed in the B-Schedule structure by Nabi Husain, the father of defendant No. 2. Defendant no 2 was in possession. Defendant No. 2 resisted the suit. He admitted that the property had come to Ghani on a partition between himself and his brothers. He also admitted that on the death of Ghani the property devolved on his four sons including Fashi Ahmad and Nabi Hussain. But he denied that there was any partition among the four sons of Abdul Ghani. He therefore, contended that Fashi Ahmad by himself could not have sold the property. He further denied that any exclusive title was conveyed to Saleem and his brothers. He also denied the partition among Saleem and his brothers as set up in the plaint. He denied the subletting alleged. He pleaded that plaint A-Schedule belongs to the four brothers including his father Nabi Hussain who had put the construction in Schedule B property and that structure exclusively belonged to Nabi Hussain and thereafter had devolved on him. He further pleaded that the plaintiffs had no exclusive title over the property or the building. Of course he also stated that he had perfected his right over the building. 3. It is seen that just before the sale deed dated 2.5.1968 by Fashi Ahmad, he and his three brothers together executed a sale deed exhibit G relating to another portion of plot No. 172. It may be noted that the Schedule-A property involved in the suit is also a portion of plot No. 172. On 31.9,1969, yet another portion of plot No. 172 was sold by all the brothers in favour of another stranger. According to defendant No. 2, exhibit G and G/1 clearly negatives the case of partition among the sons of Ghani set up by the plaintiffs. 4. A number of witnesses were examined to speak about possession. The plaintiffs attempted to establish the subletting pleaded by them. According to defendant No. 2, exhibit G and G/1 clearly negatives the case of partition among the sons of Ghani set up by the plaintiffs. 4. A number of witnesses were examined to speak about possession. The plaintiffs attempted to establish the subletting pleaded by them. The plaintiffs led evidence to show that the building plaint B-Schedule was constructed by Saleem subsequent to the purchase under exhibit A/7. The Trial Court, on an appreciation of the pleadings and the evidence in the case, came to the conclusion that the plaintiffs have not established the letting to defendant No. 1 as setup on the plaint and the subsequent subletting by first defendant in favour of the second defendant. In other words, the explanation for the possession of the defendants over the structure in the suit property was found to be not acceptable. The Trial Court held that on the oral evidence it was possible to hold that the structure B-Schedule was constructed by Saleem after the purchase dated 2.5.1968. Relying on paragraphs 9 and 14 of the written statement, the Trial Court inferred that defendant No. 2 had set up an exclusive title in Nabi, his father and such exclusive title could not have come into being on the admitted facts unless there had been a partition among the brothers. It thus came to the conclusion, based on the sale-deed executed by Fashi Ahmad, that the case of partition set up by the plaintiffs among the sons of Ghani is probable. The probability was sought to be strengthened by relying on the discrepancy in the oral evidence on the defence side regarding the time when the building in A-Schedule was constructed. Thus, the Trial Court upheld the case of the plaintiffs that they had title over plaint A-Schedule property and B-Schedule structure. A decree for recovery on title was, therefore, granted. On appeal by the defendants, the learned Single Judge, on a reiteration of the reason given by the Trial Court in the light of the arguments raised before him, agreed with the conclusions of the Trial Court and dismissed the appeal. The Learned Judge also read the written statement of defendant No. 2 with particular reference to paragraphs 9 and 14 thereof as containing a plea of exclusive title in Nabi. This supported the case of partition set up by the plaintiffs. The Learned Judge also read the written statement of defendant No. 2 with particular reference to paragraphs 9 and 14 thereof as containing a plea of exclusive title in Nabi. This supported the case of partition set up by the plaintiffs. The appeal was thus dismissed, confirming the decree of the Trial Court. We may notice that the learned Single Judge also did not interfere with the finding of the Trial Court that the plaintiffs have failed to establish the letting by Saleem to the first defendant, a case set up on the plaint for explaining the possession of the defendants. 5. Learned counsel for the appellants submitted that properly read, paragraphs 9 and 14 of the written statement contains no plea or admission or assertion of exclusive title to the properly from which a partition among the sons of Ghani could be inferred. Counsel pointed out that, the Trial Court and the learned Single Judge have clearly held that there was no direct evidence, either documentary or oral, to establish the case of partition among the sons of Ghani set up in the plaint. He further submitted that the so called discrepancy in the oral evidence regarding the point of time at which the B-Schedule structure was put up was not enough to uphold the exclusive title set up by the plain Lifts. Nor was the evidence of alleged separate residence and means of the brothers. Counsel reminded us that the plaintiffs, on the strength of their title could not get a decree based on the weakness in the defence title. Learned counsel for the plaintiffs-respondents on the other hand submitted that on an appreciation of the pleadings and the oral evidence in the case, the Trial Court and the learned Single Judge have come to the conclusion that the building had been constructed by Saleem after he purchased the property from Fashi and his brothers and that finding of fact can not be interfered with in the Letters Patent Appeal. Counsel pointed out that even if the jurisdiction under Clause 10 of the Letters Patent Appeal is wide, normally findings of fact should be accepted by the Court while dealing with the appeal. Counsel pointed out that even if the jurisdiction under Clause 10 of the Letters Patent Appeal is wide, normally findings of fact should be accepted by the Court while dealing with the appeal. Counsel also submitted that the fact that there was no direct evidence of a partition among the sons of Ghani, cannot stand in the way of the Court inferring a partition, on the facts and in the circumstances of the case. 6. Defendant No. 2 is admittedly the son of Nabi, one of the sons of Ghani. The plaintiff attempted to explain the possession of the second defendant by setting up a case that their assignor Saleem had let out the B-Schedule structure to defendant No. 1 who in turn had sublet the building to defendant No. 2. This case could not be established by the plaintiffs and the same has been found against. Thus the explanation attempted by the plaintiff for the possession of the second defendant failed. It is in this context that the fact that the second defendant is a son of Nabi Hussain assumes importance. Admittedly, the property came to Ghani on a partition among himself and his brothers. On the death ot Ghani, the property devolved on his four sons including Fashi and the father of defendant No. 2. When in this context, defendant No. 2 pleads that he continues to be a co-owner, the burden is all the more on the plaintiffs to establish the exclusive title of Fashi, based on which they claim exclusive right to possession over the property. No doubt, a partition could be inferred. But circumstances should be established to lead to a clear inference of a separation amongst the sons of Ghani, that too by metes and bounds. 7. Paragraphs 9 and 14 as be read them do not. contain an assertion of exclusive title in Nabi, by the second defendant. On a reading of paragraphs 9 and 14 of the written statement we are not in a position to agree with the learned counsel or with the Trial Court that it contains any disclaimer of title in the sons of Abdul Ghani or a plea of exclusive title in Nabi, the father of the defendant No. 2. On a reading of paragraphs 9 and 14 of the written statement we are not in a position to agree with the learned counsel or with the Trial Court that it contains any disclaimer of title in the sons of Abdul Ghani or a plea of exclusive title in Nabi, the father of the defendant No. 2. What we find from those paragraphs is a plea that after the death of Ghani," the property belonged to his sons, the four brothers, that they were in possession as co-owners, that one of the co-owners, the father of defendant No. 2 had put up a construction in a portion of the plaint A Schedule property with the consent of the other co-owners and that Fashi had no exclusive title over the property that he could convey by himself. There is no doubt an assertion that the structure belonged to Nabi. From this and from the oral evidence of separate residence and means, a partition cannot be inferred. We find that at about the time of Annexure-7, two sale deeds, which are Annexure-G and G/1 were executed by all the four sons of Ghani together referring to the right/title obtained by them from their grand father. In the face of Annexures-G and G/1 and in the absence of any other evidence on the side of the plaintiffs to establish an oral partition, we are of the view that the plea in the written statement with particular reference to paragraphs 9 and 14, cannot lend support to a finding that an oral partition has been established or that it is at least highly probable. 8. The other circumstance relied on is an inference that the building could have been constructed or might have been constructed by Saleem subsequent to the purchase under Annexure- 7. Here again, what we find is that the oral evidence of the witnesses is not definite. But from the year given by the witnesses as regards the construction, the Trial Court inferred that the building might have, been constructed after purchase of the property under Annexure-7. We think that this inference does not lead to a further inference of partition. According to us clear evidence should have been adduced by the plaintiffs to show that the construction was made by Saleem subsequent to his purchase. We think that this inference does not lead to a further inference of partition. According to us clear evidence should have been adduced by the plaintiffs to show that the construction was made by Saleem subsequent to his purchase. In view of the failure of the plaintiffs to establish the letting pleaded, the oral evidence available in the case, in our view, is hardly sufficient to enable a court to come to the conclusion that the building was constructed by Saleem subsequent to his purchase. Even if the building was constructed by Saleem, as assumed by the Trial Court and affirmed by the learned Single Judge, that can not make Saleem the exclusive owner of the A-Schedule property. After all, the ownership of the building does not necessarily establish an exclusive title over the property or a partition. After all the maxim, quic quid plantatur solo solo credit is not law in India and no presumption either way is available. The inference drawn that the plaintiff had the title over the Schedule-A property over which a building had been constructed by Saleem is seen to be unsustainable. 9. Thus, on a consideration of all the relevant aspects, we are of the view that the plaintiffs have failed to prove their exclusive title over A-Schedule and B schedule Structure. The fact that the 2nd defendant has failed to prove his exclusive title over the building can not by itself be a ground to grant a decree. The plaintiffs in any event, can only be co-owners over the Schedule-A and B-Property. In an appropriate case, in such a situation, we could have passed a preliminary decree for partition. After all, a decree for partition is a lesser relief than recovery of possession claimed by the plaintiffs. But in this case, in the absence of the other co-sharers, namely, the sons of Ghani, on the array of parties a decree for partition could not also be passed. The parties may have to fight out another litigation. 10. We, therefore, allow this appeal and setting aside the judgment and decree of the learned Single Judge and that of the Trial Court, dismiss the suit. We direct the parties to suffer their respective costs throughout.