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2013 DIGILAW 103 (JHR)

Nazma Khatoon v. Bibi Halima khatoon

2013-01-18

ALOK SINGH

body2013
Judgment In the present Second Appeal, filed under Section 100 of code of Civil Procedure 1908, judgment and decree passed by Additional Munsif, Gumla in T.S. No. 42 of 1981, Bibi Halima Khatoon Vs. Haji Mohiuddin and others dated 11.04.1991 as well as judgment dated 25.02.1997, passed by District Judge, Gumla in First Appeal being Title Appeal No. 25 of 1991, Hazi Mohiuddin & Others Vs. Bibi Halima Khatoon, are being assailed, whereby learned Munsif was pleased to decree the suit filed by the plaintiff- respondent declaring the plaintiff as owner in possession and further restraining the defendant not to realize/collect rent from the tenants of the properties in question. The First Appeal filed by the defendant was dismissed by the First Appellate Court. 2. Brief facts of the present case inter alia are that both the plaintiff and original defendant no. 1 are the daughter and son of Late Seikh Niyamat Mian. Plaintiff had filed original suit for declaring herself owner of the property and for permanent prohibitory injunction restraining the defendant not to realize / collect rent from the different tenants in occupation of different portions of property in question. The plaintiff is claiming title over the property in dispute vide two registered sale deeds dated 17.3.1958 and 25.6.1956 allegedly executed by the father of the parties Late Seikh Niyamat Mian. The further case of the plaintiff is that the plaintiff has constructed building on the property after purchasing the same from her father and has let out the different portions of the property to the different tenants. The defendant being2.real brother of the plaintiff was authorized by the plaintiff to collect the rent on her behalf from the tenants inducted by her. The defendant had been collecting rent on behalf of the plaintiff for quite long time but all of sudden he started claiming title over the property with dishonest intention, therefore, necessity arises to file suit for declaration and permanent injunction or in alternative for decree of possession against the defendant. 3. Defendant no. 1 has filed his written statement taking defence that sale deeds dated 17.3.1958 and 25.6.1956 allegedly executed by Seikh Niyamat Mian are fictitious and bogus documents and in fact were never executed by Seikh Niyamat Mian. 3. Defendant no. 1 has filed his written statement taking defence that sale deeds dated 17.3.1958 and 25.6.1956 allegedly executed by Seikh Niyamat Mian are fictitious and bogus documents and in fact were never executed by Seikh Niyamat Mian. His further defence is that he himself has inducted tenants in the different portions of the property and has been collecting rent as the owner and landlord thereof. His further defence is that the suit is barred by waiver, adverse possession and limitation. 4. Learned trial Court has framed as many as seven issues which are being reproduced hereunder: “ISSUES: 1. Is the suit under valued ? 2. Is the suit barred by waiver, adverse possession and law of limitation ? 3. Are the two sale deeds dated 17.3.1958 and 25.06.1956 executed by Seikh Neyamat in favour of plaintiff valid and genuine and has the plaintiff acquired valid title over the suit property through those transfer deeds ? 4. Is the plaintiff in possession over the suit property ? 5. Has the defendant no. 1 acted as an agent of her sister plaintiff for realization of rent from the tenants ? 6. Has the plaintiff valid cause of action for suit and is she entitled for the reliefs claimed? 7. To what other relief or reliefs she is entitled to ?” 5. Having discussed the entire evidence produced by both the parties, learned trial Court came to the conclusion that Seikh Niyamat Mian had sold the property in question in favour of the plaintiff vide two genuine registered sale deeds dated 17.3.1958 and 25.6.1956; The defendant was not able to prove adverse possession and further the suit was not barred by principle of waiver or limitation. It has further been observed by the learned trial Court that defendant no. 1 being brother of the plaintiff was authorized by the plaintiff to collect rent from the different tenants of the property and, therefore, he had been collecting rent as an agent of the plaintiff. 6. Feeling aggrieved, the defendant preferred First Appeal, which came to be dismissed vide impugned judgment dated 25.2.1997. 7. After dismissal of First Appeal, the defendant has preferred present Second Appeal. 8. This Court while admitting the appeal was pleased to formulate following two substantial questions of law on 3.12.1997. 6. Feeling aggrieved, the defendant preferred First Appeal, which came to be dismissed vide impugned judgment dated 25.2.1997. 7. After dismissal of First Appeal, the defendant has preferred present Second Appeal. 8. This Court while admitting the appeal was pleased to formulate following two substantial questions of law on 3.12.1997. “a. Whether courts below have committed a grave error of law in not framing any issue regarding that the suit is barred by adverse possession ? b. Whether the appellate court has jurisdiction to reject the second written statement by the appellants where no such plea was taken by the respondent in the trial court and as such the whole judgment of the court of appeal is vitiated ?” 9. I have heard learned counsel for the parties at great length and has perused the record carefully. Substantial Question of Law No. 1 - 10. Issue no. 2 as formulated by the trial court reads as under: “Is the suit barred by the waiver, adverse possession and law of limitation.” 11. In view of issue no. 2, it cannot be said that the courts below have committed any error by not framing any issue on the plea of adverse possession. In fact, on the plea of adverse possession, issue no. 2 was framed and parties have produced their respective evidence and issue was not found to be proved by the two Courts below, therefore, in fact substantial question of law no. 1, does not arise at all and seems to be wrongly formulated. 12. Moreover, I have carefully gone into the entire material available on the record. In my considered view, finding on issue no. 2 that defendant failed to prove that he has matured title by way of adverse possession seems to be correct and does not require any interference. Therefore, stands replied against the appellant. Substantial Question of Law No. 2 - 13. In the present case, main defence of the defendant/appellant is that the defendant-appellant has matured title by way of adverse4.possession. While arguing present appeal learned counsel for the appellant has vehemently pressed the point of adverse possession. In the humble opinion of this Court, the moment defendant takes plea that he has matured title against the plaintiff by way of adverse possession, title of the plaintiff shall be presumed to have been proved. Adverse possession is always claimed against the owner of the property. In the humble opinion of this Court, the moment defendant takes plea that he has matured title against the plaintiff by way of adverse possession, title of the plaintiff shall be presumed to have been proved. Adverse possession is always claimed against the owner of the property. Plea of adverse possession can not be against the unknown owner. There is concurrent finding of fact recorded by both the Courts below to the effect that plaintiff has purchased property in question from her father by two registered sale deeds. No perversity or illegality is pointed out in concurrent finding of fact. 14. In view of the above discussion defendant- appellant is not able to show that the sale deeds executed by father in favour of the plaintiff are outcome of fraud or forgery. Thus in my considered opinion, judgments passed by the Appellate Court and by the Trial Court are not vitiated. Substantial question of law no. 2 also stands replied against the appellant. 15. No other substantial question of law is either suggested nor arises. Moreover, I do not find any perversity or illegality in the findings of both the courts below. Therefore, the appeal fails and is here by dismissed with cost throughout. Counsel fee of the respondent is assessed as Rs.10,000/-.