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2008 DIGILAW 790 (BOM)

Banubi s/o. Sheikh Ibrahim v. Sheikh Ahmad Sheikh Mahamood

2008-06-13

VASANTI A.NAIK

body2008
JUDGMENT:- By this appeal, the appellants challenge the judgment passed by the District Judge, Buldhana, in Regular Civil Appeal No.48 of 1994, on 26th December, 1995, reversing the judgment and decree passed by the Joint Civil Judge, if. Dn., Buldhana, in Regular Civil Appeal No.17 of 1992 on 14-021994. 2. Few facts giving rise to the second appeal are stated thus - The appellants and the respondent no.4 are the original plaintiffs. They are the daughters of one Sheikh Mahmud. Sheikh Mahmud died in the year 1948 leaving behind him his widow Khatijabi, the plaintiffs and his two sons Sheikh Ahmad and Sheikh Yusuf who are arrayed as the defendant nos. 1 and 2 to the suit. Khatijabi died in the year 1988. According to the plaintiffs, the suit properties were owned and possessed by their father Sheikh Mahmud and the plaintiffs and the defendant nos.1 and 2 have inherited the suit properties and are in joint possession of the same. It was pleaded by the plaintiffs that entries in the name of the defendant nos.1 and 2, in the revenue records were illegal and not binding on the plaintiffs. It was also pleaded on behalf of the plaintiffs that the defendant nos.1 and 2 had illegally sold some property in favour of the defendant no.3 in the year 1987. The plaintiffs demanded their shares in the properties in the year 1991 and since the same was not acceded to, the plaintiffs filed the suit for partition and possession of their 1/9th share in the suit property. 3. The defendants resisted the claim of the plaintiffs and pleaded that Sheikh Mahmud had orally gifted the suit property to the respondent nos.1 and 2 in presence of panchas, in the year 1948. According to the defendant nos.1 and 2, they became the absolute owners of the suit property in terms of the oral gift and some of the properties were sold by the defendant nos.1 and 2, to the defendant no. 3 as they were the owners thereof. It was pleaded by the defendant nos.1 and 2 that the suit was barred by limitation. 4. The trial Court framed the issues and after considering the evidence tendered by the parties on record, held that the plaintiffs, proved that they inherited the suit property along with the defendant nos.1 and 2. 3 as they were the owners thereof. It was pleaded by the defendant nos.1 and 2 that the suit was barred by limitation. 4. The trial Court framed the issues and after considering the evidence tendered by the parties on record, held that the plaintiffs, proved that they inherited the suit property along with the defendant nos.1 and 2. The Court further held that the defendant nos.1 and 2 had illegally sold the land to the defendant no.3 and the sale transaction was not binding on the plaintiffs. The trial Court held that the defendants had failed to prove that they became the owners of the suit property by adverse possession. The Court also held that the defendant nos. 1 and 2 failed to prove that Sheikh Mahmud had orally gifted the suit property to the defendant nos. 1 and 2. In the result, the trial Court decreed the suit filed by the plaintiff and declared that each of the plaintiffs had 1/9th share in the suit property as the five daughters took one share each and the two sons took two shares each in view of the principles of Muslim Law. 5. In an appeal preferred by the defendants, the appellate Court held that the defendants failed to prove that their father had gifted the suit properties to them by oral gift, in the year 1918. The Court, however, held that the defendants had succeeded in proving their title to the suit property by adverse possession. In view of this finding, the court held that the plaintiffs had shares only in the share of Khatijabi. The appellate Court, therefore, held that each of the plaintiff had 1/72th share in the suit property. The judgment of the appellate Court is challenged by the plaintiffs. 6. Shri. Qazi, the learned counsel for the appellants, submitted that the first appellate Court committed a serious error in reversing the finding recorded by the trial Court on the issue of adverse possession as there was absolutely no evidence tendered by the defendants to show that the defendants had asserted a hostile title to the suit property, to the notice and knowledge of the plaintiffs. According to the learned counsel for the appellants, mere long standing possession can not be said to be adverse and since, in the instant case, the ouster of the plaintiffs was not made out explicitly, the first appellate Court was not justified in reversing the findings recorded by the trial Court on the issue of adverse possession specially when the trial Court had appreciated the evidence in that regard in an extremely reasonable manner. According to the counsel for the appellants, the first appellate Court wrongly placed the burden on the plaintiffs to show that they had, at any point of time, exercised their right over the suit property as the owners thereof. According to the counsel for the appellants, in fact, the burden to prove the ouster of the plaintiffs was on the party which pleaded adverse possession and it was for the defendant nos. 1 and 2 to prove that they had asserted the title to the property which was hostile to that of the plaintiffs. 7. Shri. Paliwal, the learned counsel for the respondents nos.1 and 2, supported the judgment passed by the first appellate Court and submitted that the first appellate Court was clearly justified in granting shares to the plaintiffs in only Khatijabi's property. According to the counsel for the respondent nos. 1 and 2, the finding on the question of acquisition of title by adverse possession is a clear finding of fact and this Court is not entitled to reverse the same in a second appeal as the same does not give any rise to any substantial question of law. 8. On hearing the learned counsel for the parties and after perusal of judgments of both the Courts, it appears that the following substantial question of law arises for consideration in this second appeal: (1) Whether longstanding exclusive possession of some of the co-owners would result into conferring ownership by adverse possession on them, in the absence of any overt act or assertion by them of a title hostile to that of the other co-owners? It was necessary to frame this substantial question of law at the time of hearing of this second appeal as this Court, while admitting the second appeal on 06-08-1996, had not framed any substantial question of law, as such. 9. It was necessary to frame this substantial question of law at the time of hearing of this second appeal as this Court, while admitting the second appeal on 06-08-1996, had not framed any substantial question of law, as such. 9. For answering the aforesaid substantial question of law, it is necessary to consider the evidence tendered by the parties on the question of adverse possession. There was nothing either in the pleadings or in the evidence of the defendant nos. 1 and 2 to indicate as to how and since when the defendant nos. 1 and 2 had started holding the suit property adversely. The starting point of adverse possession was not pleaded in the plaint (sic written statement). As rightly held by the trial Court, it was necessary for the defendants to plead the same as the prescribed period of limitation of 12 years in such cases, starts running from the date, the possession of the defendants becomes adverse to that t)f the plaintiffs. Though the properties are possessed by some of the co-owners, it would be a possession for and on behalf of the other crowners also unless the ouster is made out explicitly by the co-owner in possession by an overt act. The trial Court rightly considered the admission of defendant - Sheikh Yusuf in his cross-examination that the plaintiffs were given some crops from the suit field. Though both the Courts had recorded that the defendant nos. 1 and 2 were in possession of the suit fields, the trial Court rightly observed that there was nothing on record to show that the defendant nos. 1 and 2 asserted a title which was hostile to that of the plaintiffs. It was observed by the trial Court that the women in Mohammedan families or, for that matter, sisters in Mohammedan families lived in Parda, and the action of their brothers in getting the properties mutated in their names, would not lead to a conclusion that the brothers had held the properties to the exclusion of the sisters, as owners thereof. Thus, it could be seen from the pleadings and evidence tendered by the defendant nos. 1 and 2 that except for the mere entry of name in the mutation register, there was nothing on record to show that the defendant nos.1 and 2 had acquired a title to the property by adverse possession. 10. Thus, it could be seen from the pleadings and evidence tendered by the defendant nos. 1 and 2 that except for the mere entry of name in the mutation register, there was nothing on record to show that the defendant nos.1 and 2 had acquired a title to the property by adverse possession. 10. The trial Court had rightly held that the mere entry of name in the mutation register, is not an indication of adverse possession, as it is well settled that one coowner, in exclusive possession, cannot render his possession adverse to other co-owners, not in possession, merely on the basis of a secret or hostile animus on his part. Though there was no evidence worth the name, much less, cogent evidence, to prove the adverse possession of the defendant nos. 1 and 2, the first appellate Court reversed the findings recorded by the trial Court by observing that the plaintiffs produced nothing on record to show that the plaintiffs, at any time, exercised their rights over the suit property as owners thereof. As rightly submitted on behalf of the appellants, it was not necessary for the plaintiffs to prove so as the burden was not on the plaintiffs to prove that they had, at any point of time, exercised a right over the suit property as owners thereof and the burden to prove adverse possession and hostile title, lay on the defendant nos. 1 and 2. Though the first appellate Court observed that the defendant nos. 1 and 2 got the properties partitioned between them and sold the properties to the defendant no.3, it is conspicuous to note that the properties were sold by the defendant nos. 1 and 2 to the defendant no.3 in the year 1987 and the suit was instituted - by the plaintiffs in the year 1991, after Khatijabi, their mother, died in the year 1988. The appellate Court was not, therefore, justified in holding that the long and continuous possession of the defendants was enough to prove adverse possession, and therefore, the plaintiffs cannot claim any right or share in the properties owned by Sheikh Mahmud. The appellate Court was not, therefore, justified in holding that the long and continuous possession of the defendants was enough to prove adverse possession, and therefore, the plaintiffs cannot claim any right or share in the properties owned by Sheikh Mahmud. Mere fact that the plaintiffs were married and were not in actual possession of the properties for a period of more than 25 years before filing of the suit, was not prejudicial to the plaintiffs' case, more so when the defendant nos.1 and 2 were cultivating the suit property even during the life time of their father Sheikh Mahmud and continued to possess the same after his death. The first appellate Court, therefore, ought not have reversed the finding recorded by the trial Court on the issue of adverse possession, specially when the appellate Court had observed that there is a presumption in law that in case of co-owners who are tenants in common, a possession of one is a deemed possession of all unless knowledge of ouster or adverse possession by a party in possession is brought to the knowledge or notice of the others. There is nothing on record to show that the plaintiffs had a knowledge or notice of their ouster or of the adverse possession of the defendant nos. 1 and 2. In this view of the matter, in the absence of evidence on record, it was not proper on the part of the first appellate Court to reverse the findings on the issue of adverse possession. The substantial question of law is, therefore, answered in the negative and in favour of the appellants. 11. In the result, the second appeal succeeds and is allowed. The judgment passed by the District Judge, Buldhana, in Regular Civil Appeal No.48/1999 on 26th December, 1995, is hereby set aside, thereby maintaining the judgment passed by the ft. Civil Judge, Jr. Dn., Buldhana, on 14th February, 1994 in Regular Civil Suit No.17/1992. In the facts of the case, there would be no orders as to costs. Appeal allowed.