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2011 DIGILAW 375 (MP)

Rahmunabi @ Rahmunisha v. Sheikh Vahid

2011-03-23

G.S.SOLANKI

body2011
JUDGMENT 1. Appellant-defendant No.2, being aggrieved by the judgment and decree dated 1.2.1999 passed in Civil Suit No.54-A/1995 by Second Additional District Judge to the Court of District Judge, Khandwa, has preferred this appeal under section 96 of the Code of Civil Procedure. 2. It is undisputed that the cross objection filed by respondent Sheikh Vahid, who died on 1.3.2002, was dismissed on 24.6.2002. It is also undisputed that respondents No.2, 3 and 5 are the real brothers. Appellant Mst. Rahmunabi @ Rahmunisha is the wife of respondent No.2 Mohd. Tofiq, respondent No.6, Mst. Hajrabi is the wife of Mohd. Haneef. 3. Case of respondent No.1-plaintiff, Sheikh Vahid, was that the disputed property is an ancestral property. Same was purchased by Sheikh Ahmed, father of respondent No.1-plaintiff on 21.3.1944 by registered sale-deed and thereafter he constructed the house on it and living there. 4. Sheikh Ahmed, father of respondent No.1-plaintiff, Sheikh Vahid, was died on 20.10.1974. Father of respondent No.1-plaintiff and father of respondent No.2, Mohd. Haneef, were the relatives and friends. Mohd. Haneef came to Khandwa from Dhangaon in the year 1974. He was permitted to live in the disputed house by deceased Sheikh Ahmed. After the death of Sheikh Ahmed, Mohd. Haneef and his family members, respondents No.2 to 6 and appellant were permitted to reside in the said house by respondent No.1-plaintiff. 5. When respondent No.1-plaintiff demanded possession of the house then respondents No.2 to 6 refused to give possession. Ultimately, respondent No.1-plaintiff after giving notice to them, filed a suit for possession of the disputed house. 6. Appellant-defendant's case before the trial Court was that Mst. Jaibunbi was the wife of Sheikh Ahmed and disputed plot was given to her in Mehar by Sheikh Ahmed, father of the plaintiff. Thereafter, Sheikh Hamid, son of Sheikh Ahmed and Jaibunbi constructed the house on the said disputed plot. Appellant-defendant No.2, Rahmunabi @ Rahmuniha was called by Jaibunbi for taking her care. The disputed house was gifted to appellant-defendant No.2 by Jaibunbi, who was the second wife of late Sheikh Ahmed. In this way, possession of appellant-defendant No.2 is not permissive possession but she is residing as owner of the property. It is also pleaded that Gulshanbi was first wife of late Sheikh Ahmed. Respondent No.1-plaintiff, Sheikh Vahid, is the son of Gulhanbi by Sheikh Ahmed. In this way, possession of appellant-defendant No.2 is not permissive possession but she is residing as owner of the property. It is also pleaded that Gulshanbi was first wife of late Sheikh Ahmed. Respondent No.1-plaintiff, Sheikh Vahid, is the son of Gulhanbi by Sheikh Ahmed. On the basis of above pleading, learned counsel for the appellant prays for dismissal of the suit. 7. Learned lower Court had framed as many as eleven issues and after appraisal of evidence on record, passed the impugned judgment and decree. Hence this appeal. 8. Learned counsel for the appellant submitted that learned trial Court committed an error in not appreciating the evidence on record in its proper perspective. He further submitted that the trial Court should have been held that appellant-defendant No.2 is an absolute owner of the property and respondent No.1-plaintiff had no share on it, therefore, he prays for setting aside the impugned judgment and decree passed by the trial Court. 9. On the other hand, learned counsel for the respondent No.1 submitted that the cross appeal filed by the appellant-defendant No.1 has already been dismissed. In these circumstances, he supported the judgment and decree passed by the learned trial Court and further submitted that appellant has no right, title or interest in the disputed house because it is not proved that mother of the appellant was validly married wife of late Sheikh Ahmed and she got the disputed property in her Mehar. In these circumstances he prays for dismissal of the appeal. 10. I have heard the learned counsel for the parties and perused the impugned judgment, evidence and other material on record. 11. Samim Bano (PW 1), wife of Sheikh Vahid, deposed that the disputed house was purchased by his father-in-law, Sheikh Ahmed and thereafter constructed the house by him, therefore, her husband became the owner thereof. She further deposed that one Mohd. Haneef came from Dhangaon to Khandwa, at that time his father-in-law gave the disputed house for residence of Mohd. Haneef and his family. She further deposed that Mohd. Haneed has been died long back. She also deposed that his father-in-law, Sheikh Ahmed, never met with Jaibunbi, mother of Mohd. Haneef. According to her, Gulshanbi was the wife of Sheikh Ahmed and her husband was born out of their wedlock. 12. Nathu Khan (PW2) has supported the version of Sumim Bano (PW 1). 13. She further deposed that Mohd. Haneed has been died long back. She also deposed that his father-in-law, Sheikh Ahmed, never met with Jaibunbi, mother of Mohd. Haneef. According to her, Gulshanbi was the wife of Sheikh Ahmed and her husband was born out of their wedlock. 12. Nathu Khan (PW2) has supported the version of Sumim Bano (PW 1). 13. On the contrary, Rahmunisha (DW 1) deposed that Sheikh Ahmed have two wives, first was Gulshanbi and second was Jaibunbi, who was her mother. According to her, Sheikh Vahid is the son of Gulshanbi born with Sheikh Ahmed and she herself and her brother Hamid was the two children of Jaibunbi by Sheikh Ahmed. Mohd. Haneefwas no more in the world. She father deposed that Mohd. Haneef and Sheikh Ahmed are co-brother-in-law and after her marriage with Mohd. Tofiq s/o Mohd. Haneef, they become near relatives. She further deposed that disputed house was gifted by Jaibunbi to her, which was constructed by his deceased brother Hamid. She filed tax receipts of the disputed house vide EX.D-1 to D-9. She admitted in her cross-examination that she did not see the Nikhanama of her mother Jaibunbi and Sheikh Haneef. 14. Mohd. Tofiq (DW2), husband of Rahmunabi @ Rahmunisha, appellant-defendant No.2 supported the statement of Rahmunisha (DW 1). Despite extensive cross-examination by the Advocate of respondent No.1plaintiff, he could not able to bring out the fact that Jaibunbi was not the wife of late Sheikh Ahmed. It is true that in this case Nikhanama is not produced. It is just possible because Sheikh Ahmed was died on 20-22 years back and his marriages with Jaibunbi and Gulshanbi were solemnized long back i.e. more than 40 years. In these circumstances, if written Nikhanama was not produced, then if trial Court had reached to the conclusion on the basis of other evidence and admitted circumstances on record that Jaibunbi was the wife of Sheikh Ahmed, cannot be said to be erroneous. 15. From perusal of paragraphs 12 and 13 of the impugned judgment, I am of the view that the trial Court has rightly raised presumption on the basis of old Ration Card and other evidence and circumstances on record and arrived at the conclusion that Jaibunbi was validly wife of Sheikh Ahmed and she was the stepmother of respondent No.1-plaintiff. 16. From perusal of paragraphs 12 and 13 of the impugned judgment, I am of the view that the trial Court has rightly raised presumption on the basis of old Ration Card and other evidence and circumstances on record and arrived at the conclusion that Jaibunbi was validly wife of Sheikh Ahmed and she was the stepmother of respondent No.1-plaintiff. 16. I am also of the considered opinion that from the evidence on record, it reveals that deceased Sheikh Ahmed had two wives, first was Gulshanbi by whom Sheikh Vahid was born and second was Jaibunbi by whom Rahmunisha and her brother Hamid (since dead), were born. Except plaintiff, other children of Gulshanbi departed to Pakistan and' Hamid, brother of Rahmunisha, already died in his adolescent age. It is proved on record that disputed house was the property of Sheikh Ahmed and after his death only two legal representatives are alive, first is respondent No.1 plaintiff Sheikh Vahid and second Rahmunabi @ Rahmunisha, appellant defendant No.2 and according to the Mohammedan Law, respondent No.1plaintiff has 2/3rd share and appellant-defendant No.2, Rahmunabi @ Rahmunisha has l/3rd share in the disputed house. In these circumstances, defendant Rahmunabi and her husband cannot be said to be in illegal possession and Rahmunabi has l/3rd share/title in the house and she can retain the possession thereof up to that extent. 17. On perusal of statements of Rahmunisha (DW1), Mohd. Tofiq (DW2) and their witness Ismile Khan (DW3) they cannot be said to be believable because primarily it is not proved that disputed property was given in Mehar of Jaibunbi, therefore, it cannot be said that the disputed property was gifted to the Rahmunabi-defendant No.2 by Jaibunbi. Despite aforesaid facts, she is entitled to get 1/3rd share in the disputed house and she can retain the possession thereof upto that extent. 18. In these circumstance, the appeal fails and is hereby dismissed. The impugned judgment and decree passed by the trial Court is hereby affirmed. 19. Appellant-defendant shall bear his cost and pay the cost of respondent No.1-plaintiff. Counsel fees as per rules and certificate (whichever is less). 20. Decree be drawn accordingly.