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2013 DIGILAW 2401 (MAD)

Johara Ummal v. S. M. Omar

2013-07-10

R.S.RAMANATHAN

body2013
JUDGMENT The 16th defendant in O.S.No.20 of 1986 on the file of the District Judge, Karaikal is the appellant in A.S.No.927 of 1989. Defendants 2 to 5, 7 to 9, 14 and 15 in the said suit are the appellants in A.S.No.141 of 1990. The plaintiffs in the suit are the cross objectors in Cross Objection No.137 of 1995. The parties are referred to as per their ranks in the Trial Court. 2. The plaintiffs in O.S.No.20 of 1986 filed the suit for partition of their 31/45 share and the Trial Court passed the preliminary decree declaring that the plaintiffs are entitled to 31/45 share and also held that the 16th defendant viz., the appellant in A.S.No.927 of 1989 has no right in the suit property and eviction proceedings can be initiated against her for evicting her by instituting separate proceedings. Aggrieved by the judgment and decree, the 16th defendant filed A.S.No.927 of 1989 and defendants 2 to 5, 7 to 9, 14 and 15 filed A.S.No.141 of 1990. 3. The case of the plaintiffs as seen from the plaint is as follows:- The house property mentioned in the schedule originally belonged to one Oli Sahib Maricar and Julaiga Ummal and they got the property under a sale deed dated 25.5.1911 and both of them died intestate leaving behind three sons and three daughters and under the Muslim Law, the sons got 10/45 share each and daughters got 5/45 share each. The first son by name Shaik Mohamed Maricar died and was survived by his children Mohamed Abdul Kader, Abdul Razack, Mohamed Ibrahim, Abdul Samed, Hawva Bee and Kathija Bee and all of them executed a power of attorney in favour of one Abdul Razack to sell their respective shares in the suit property and under a registered sale deed dated 3.7.1967, the power agent Abdul Razak sold the share of the said Shaik Mohamed viz., 10/45 share to the first plaintiff for a valuable consideration. One of the daughters viz., Kadiza Ummal sold her 5/45 share to her own brother Abdul Khader on 14.3.1946 under a registered sale deed and therefore, Abdul Khader got 10/45 share by inheritance and 5/45 share through sale. One of the daughters viz., Kadiza Ummal sold her 5/45 share to her own brother Abdul Khader on 14.3.1946 under a registered sale deed and therefore, Abdul Khader got 10/45 share by inheritance and 5/45 share through sale. The said Abdul Khader died intestate leaving behind Sheik Mohammed Maraikair, Abdul Rahim and Fathima Jayanambu Gani and they disposed of the share held by Abdul Khader viz., 15/45 share to the second plaintiff under a registered sale deed dated 20.10.1970. Another daughter by name Aysha Ummal died intestate and her legal heirs Mohamed Abdul Khader, Mohammed Ibrahim, Fathima Sultan and Jayambu Ganu have sold their respective shares viz., 5/45 share to the first plaintiff under a registered sale deed dated 10.7.1968. Another daughter by name Maimoon Ummal died leaving behind her children viz., T.A.Hmeed Maricar, T.A.Sultan Maricar and Fathima Ummal and among them, Fathima Ummal became entitled to 1/45 share and she sold the same to the first plaintiff under a registered sale deed dated 21.11.1973 and thus, the first plaintiff became the absolute owner of 16/45 share and the second plaintiff became the absolute owner of 15/45 share in the suit property and they are in possession of their respective shares. 4. Defendants 1 and 2, who are the legal heirs of Maimoon Ummal, who was the daughter of Oli Sahib Maricar, are in possession of 2/45 share each. The other son of Oli Sahib Maricar viz., Meera Labbai Maricar died and survived by defendants 3 to 9 and two daughters viz., Nabeesa Ummal and Hajia Gani. Nabeesa Ummal died leaving behind defendants 10 to 12 as her legal heirs and Hajia Gani also died leaving behind defendants 13 to 15 as her legal heirs. Therefore, the 10/45 share of Meera Labbai Maricar devolved upon defendants 3 to 15. The 16th defendant was inducted as a tenant. Therefore, the suit was filed for partition of plaintiff's 31/45 share in the suit property. 5. The third defendant filed a statement and the same was adopted by defendants 2, 4 to 12, 14 and 15. Therefore, the 10/45 share of Meera Labbai Maricar devolved upon defendants 3 to 15. The 16th defendant was inducted as a tenant. Therefore, the suit was filed for partition of plaintiff's 31/45 share in the suit property. 5. The third defendant filed a statement and the same was adopted by defendants 2, 4 to 12, 14 and 15. The case of the third defendant was that the suit property is a wakf property and it has been considered as such by late Oli Sahib Maricar and during his lifetime, she evinced interest to treat the suit property as one having been consecrated for the sole object of performing Moulad in the month of Rabeyul Avval in memory of the Holy Prophet. His wife viz., Julaiga Ammal had set apart about two velies of wet lands in the village of Uthirangudi of Thirunallar commune and the paddy raised therein were used in connection with the purpose of Moulad. Cooking vessels and other utensils were set apart exclusively for the said purpose and the 16th defendant was inducted into the suit property for the purpose of maintaining the suit property and to preserve the cooking vessels and other utensils and she was given rent free accommodation for maintenance of her family in the form paddy and cash. It is further contended that Oli Sahi Maricar and his wife possessed a large number of buildings and large extent of cultivable lands and all those properties were settled by them in favour of their legal heirs excluding the suit house and the reason for excluding the suit property was that the suit property was treated as wakf property for the purpose of performing Moulad as stated above and the descendants of Abdul Wahab are still occupying the rear portion of the suit property and looking after the cooking vessels and the first plaintiff also admitted in his notice dated 18.7.1985, about the wakf created in respect of the suit property and the various transfers referred to in the plaint are not true and the plaintiffs are bound to prove the same and the suit property, being a wakf property, cannot be divided and therefore, the suit for partition was liable to be dismissed. A plea was also taken that the shares worked out are not correct. 6. A plea was also taken that the shares worked out are not correct. 6. The 16th defendant filed separate statement stating that she is in possession of the property for more than 60 years and she and her husband, who are in occupation as owners, were not inducted by anybody as stated in the plaint and they are not in permissive occupation and even though a notice was sent by the plaintiffs, a reply notice alleged to have been sent by the 16th defendant was not sent by her and her son played fraud on her and therefore, the contents of the reply notice cannot be put against her and she also perfected title by adverse possession and that cannot be decided in a suit for partition and therefore, she cannot be evicted. 7. The Trial Court framed the following issues and additional issues:- "i) Whether the suit properties were consecrated for the performance of Moulud by Oli Sahib Maricar and his wife Julaiga Ummal? ii) Whether the suit property can be partitioned? iii) Whether the transfers of shares in favour of the plaintiffs as found in the plaint are true and valid? iv) Whether the shares worked out and claimed by the plaintiff is correct? ADDITIONAL ISSUES: i) Whether the 16th defendant is a necessary party and whether the suit is bad for non joinder of necessary parties? ii) Whether the plea of adverse possession by D16 is true? iii) To what other relief the plaintiffs are entitled?" 8. The Trial Court held that the suit property was not dedicated to the Wakf for the performance of Moulad as contended by the defendants and therefore, answered issue No.1 in favour of the plaintiffs. The Trial Court also found that the transfer of shares in favour of the plaintiffs are valid and found issue No.3 in favour of the plaintiffs. The Trial Court also held that the suit property can be partitioned and answered issue No.2 in favour of the plaintiffs. The Trial Court also found that the transfer of shares in favour of the plaintiffs are valid and found issue No.3 in favour of the plaintiffs. The Trial Court also held that the suit property can be partitioned and answered issue No.2 in favour of the plaintiffs. The Trial Court also answered additional issue No.1 in favour of the plaintiffs holding that the suit was not bad for non-joinder of necessary parties and answered additional issue No.2 against the 16th defendant holding that the 16th defendant was inducted as a servant by the original owner and she was allowed to occupy a portion of the suit house in the backyard to maintain the house and the 16th defendant has no right over the suit property and she has to be evicted only by eviction proceedings and decreed the suit as prayed for. 9. The 16th defendant contended that the Trial Court erred in holding that the 16th defendant is occupying the property as a permissive occupier and no evidence was let in by defendants 1 to 15 to that effect and having admitted that the 16th defendant and her husband are in possession of the property for more than 60 years exercising the right of ownership and admittedly, no rent was collected from the 16th defendant and considering all these things, the Trial Court ought to have accepted the case of the 16th defendant and held that the appellant in A.S.No.927 of 1989 perfected title by adverse possession to the suit property in respect of her portion and ought to have excluded the portion in occupation of the 16th defendant from the partition. 10. The plaintiffs filed cross objection in 137 of 1995 in A.S.927 of 1989 against the findings of the Trial Court that the 16th defendant has to be evicted by initiating eviction proceedings by the plaintiffs and the learned counsel for the plaintiffs submitted that having given the findings that the 16th defendant has been in possession as a permissive occupier, the court below ought not to have given a finding that the plaintiffs have to file a separate suit for eviction and the 16th defendant, being a permissive occupier, can be considered only as a licence and the licence can be canelled and the 16th defendant can be evicted and therefore, the finding of the Trial Court in para 16 has to be set aside. 11. 11. Defendants 2 to 5, 7 to 9, 14 and 15 filed appeal in A.S.No.141 of 1990 and the learned counsel for the defendants contended that the Trial Court erred in holding that the property was not a wakf property and also filed C.M.P.No.84 of 2006 to substantiate the case that even in the year 1925, a Will was executed by Julaika Ummal wherein she has clearly stated that the suit property has been set apart for the purpose of performing Moulad during Rabiyul Avval and the defendants were not able to get the original of the document during trial and only now, they were able to get the document and therefore, that document has to be received as additional evidence which would also prove their case and considering the Will executed by Julaika Ummal dedicating the suit property as a wakf property, the suit for partition was not maintainable. He further contended that if, for any reason, this court feels that the document filed as additional evidence cannot be accepted in the absence of any evidence, the case can be remanded to the Trial court for letting in evidence to prove the document to substantiate the case of the appellants in A.S.No.141 of 1990. He, therefore, contended that having regard to the additional document, the suit has to be remanded to the Trial Court for the purpose of marking the same in the manner known to law and the case has to be decided in the light of the said document. 12. On the basis of the submissions of the learned counsel for the appellants and the cross objector, the following points arise in these appeals and cross objection:- "1. Whether the findings of the Trial Court that the suit property was not a wakf property as contended by the appellants in A.S.No.141 of 1990 is correct. 2. Whether the 16th defendant was inducted as a tenant or the 16th defendant is in occupation as permissible occupier as contended by the plaintiffs and defendants 1 to 15 respectively. 3. Whether the 16th defendant/appellant in A.S.No.927 of 1989 perfected title by adverse possession. 13. There is no dispute with respect to the fact that the suit property belonged to Oli Sahib Maricar and his wife Julaiga Ummal and they had three sons and three daughters. 3. Whether the 16th defendant/appellant in A.S.No.927 of 1989 perfected title by adverse possession. 13. There is no dispute with respect to the fact that the suit property belonged to Oli Sahib Maricar and his wife Julaiga Ummal and they had three sons and three daughters. According to the plaintiffs, they purchased 31/45 shares from the legal heirs of one son by name Shaik Mohammed Maricar, from the daughter Kadiza Ummal, the legal heir of Abdul Khader Maricar, another son of Oli Sahib Maricar and also from another daughter Aysha Ummal. Therefore, the plaintiffs filed the suit for partition having purchased 31/45 shares from the various share holders as detailed in the plaint. 14. The contention of defendants 2 to 5, 7 to 9, 14 and 15 viz., appellants in A.S.No.141 of 1990 was that the suit property is a wakf property and dedicated for the purpose of performing Moulad and therefore, the various sale deeds in favour of the plaintiffs are not valid and the plaitiffs cannot claim any right or title under various sale deeds and therefore, the suit for partition was not maintainable. It is the further contention of the appellants in A.S.No.141 of 1990 that the 16th defendant viz., appellant in A.S.No.927 of 1989 was inducted into a portion of the suit property to take care of the property and the cooking vessels and other utensils and she cannot claim any right over the property. 15. To appreciate the contention of defendants 2 to 5, 7 to 9, 14 and 15, we will have to see the case projected by them in the written statement. The third defendant filed written statement and the same was adopted by defendants 2, 4 to 12, 14 and 15. In the written statement, they contended that the suit property is a wakf property and the same has been created by Oli Sahib Maricar. It is not the case of defendants 2 to 5, 7 to 9, 14 and 15 that the wakf was created by the mother Julaiga Ummal as projected by the appellants in A.S.No.141 of 1990 on the basis of the additional document. Further, it is also seen in the written statement that Julaiga Ummal had set apart two velies of wet lands in the village of Uthirangudi of Thirunallar commune for the performance of Moulad for which the wakf was created. Further, it is also seen in the written statement that Julaiga Ummal had set apart two velies of wet lands in the village of Uthirangudi of Thirunallar commune for the performance of Moulad for which the wakf was created. Therefore, the specific case of the appellants in A.S.No.141 of 1990 was that the wakf was created by Oli Sahib Maricar and therefore, the suit property cannot be partitioned. In support of their contention, no document was filed and they only filed some account books and no deed of dedication was produced and as a matter of fact, it was not the case of the defendants during trial that deed of dedication was executed by Oli Sahib Maricar. 16. According to PW2, who was well versed in Islam, Moulad means singing of songs in praise of Prophet Mohammed and performance of Moulad is not compulsory and during the life time of Oli Sahib Maricar, Moulad was performed in that house. Exs.B1 and B2 also did not support the case of the appellants in A.S.No.141 of 1990 regarding the dedication of the suit property in favour of the wakf. From Ex.B1, one can only say that some amounts were spent for performing Moulad. Therefore, in the absence of any proof of dedication and the performance of Moulad is only to sing songs in praise of Prophet, the Trial Court has rightly held that defendants 2 to 5, 7 to 9, 14 and 15 failed to prove that the suit property was wakf property and was dedicated for the purpose of performing Moulad and I do not find any reason to differ with that finding. 17. C.M.P.No.84 of 2006 was filed to receive the document as additional evidence. Having regard to the nature of the document, in my opinion, the said document would help the court to arrive at a right conclusion. Hence, C.M.P.No.84 of 2006 is allowed and the document is marked as Ex.B5. In my opinion, the findings of the Trial Court is also strengthened by reason of the additional evidence now produced before this court. In the additional document filed alongwith C.M.P.No.84 of 2006, no schedule of property was mentioned. It is only stated that all the immovable properties remaining with her through her succession were set apart for performing Moulad which was performed every year. In the additional document filed alongwith C.M.P.No.84 of 2006, no schedule of property was mentioned. It is only stated that all the immovable properties remaining with her through her succession were set apart for performing Moulad which was performed every year. As stated earlier, in the written statement, defendants 2 to 5, 7 to 9, 14 and 15 specifically pleaded that the suit property was dedicated to wakf by Oli Sahib Maricar and his wife Julaiga Ummal setting apart two velies of wet lands in the village of Uthirangudi of Thirunallar commune. Therefore, the failure to mention the suit property in the additional document, it cannot be presumed that the suit property has been dedicated by Julaiga Ummal under the additional document especially in the light of the pleadings in the written statement that Julaiga Ummal had various lands in Thirunallar commune and treated the suit house as dedicated for performing Moulad. 18. Therefore, even accepting the document as additional evidence, according to me, the same will not support the case of the appellants in A.S.No.141 of 1990 and having regard to the fact that no schedule of property is mentioned in the said document and as per the written statement, wakf was created in respect of the suit property by Oli Sahib Maricar and Julaiga Ummal setting apart various lands towards wakf, the contention of the learned counsel for the appellants in A.S.No.141 of 1990 that the suit property was dedicated to wakf by Julaiga Ummal as evidenced by the document produced as additional evidence cannot be accepted and it is also contrary to the pleadings and the written statement. Hence, I do not find any reason to interfere with the findings of the Trial Court regarding the nature of the property and also confirm that the suit property has not been proved to be wakf property by the defendants and the suit property has been dealt with by the legal representatives of Oli Sahib Maricar and his wife as their personal properties and therefore, the plaintiffs, who purchased 31/45 share in the suit property, are entitled to file the suit for partition. 19. The case of the appellant in A.S.No.927 of 1989 is that the appellant had perfected title by adverse possession. 19. The case of the appellant in A.S.No.927 of 1989 is that the appellant had perfected title by adverse possession. In the written statement, the 16th defendant has only stated that she is in occupation of the property for more than 60 years and her husband has been in occupation for more than 60 years as owners and she also denied the allegation that they were inducted into the suit property by the original owners for the purpose of maintaining the property and the utensils kept there. The case of the plaintiffs was that the 16th defendant was inducted as the tenant. It is settled law that when a person pleads adverse possession, the burden is on him to prove the same. In this case, the 16th defendant/appellant in A.S.No.927 of 1989 pleaded adverse possession and we will have to see whether the same was proved by her. Before going into that aspect, we shall look into the law on this aspect. I had an occasion to deal with the law on adverse possession and the same is reported in ( 2011(1) LW 1014 ) DHANABAGHYAM AMMAL v. DHANAVEL AND OTHERS. In that judgment, I relied upon the judgment of the Honourable Supreme Court in SARIIO SINGH v. BANTO ( (2005) 8 SCC 330 ), T.ANJAPPA v. SOMALINGAPPA ( (2006) 7 SCC 570 ) and our High Court judgment in M.GANESA REDDIAR AND OTHERS v. C.KRISHNASAMY RAJU ( 2008 (5) MLJ 144 ) and the judgment reported in S.GANESAN v. BHARATHIRAJAN ( 2009 (5) CTC 558 ) and held as follows:- "13. In the judgment reported in SARIIO SINGH v. BANTO ( (2005) 8 SCC 330 ), it has been held as follows:- "28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. I that view of the matter the suit was not barred. 29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladi Nayak v. Somnath Muljibhai Nayak.) 30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd.Mohammad Ali v. Jagdish Kalita, SCC para 21.)" 14. In the judgment reported in T.ANJAPPA v. SOMALINGAPPA ( (2006) 7 SCC 570 ) it is held as follows:- "It is well-recognised proposition in law that mere possession however long does not mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action." 15. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action." 15. Therefore, from the above judgments, it is clear that mere long possession will not amount to adverse possession and the person pleading adverse possession must prove that he was in possession of the property with required animus and he was enjoying the property to the knowledge of the true owner. In this case, as stated supra, the case of the third defendant was that Rathnavel Padayachi, father of the first defendant was the owner and after his death, his son sold the property to the second defendant. Therefore, the claim of the third defendant was that his predecessors-in-title were the owners of the property and therefore, he also claimed ownership over the property. When a person pleads ownership over the property, he cannot plead adverse possession and this has been held in the judgment reported in M.GANESA REDDIAR AND OTHERS v. C.KRISHNASAMY RAJU ( 2008 (5) MLJ 144 ) and the judgment reported in S.GANESAN v. BHARATHIRAJAN ( 2009 (5) CTC 558 )." 20. Therefore, having regard to the law laid down by the Supreme Court regarding adverse possession, we will have to see whether the appellant in A.S.No.927 of 1989, has proved adverse possession. She examined herself as DW3 and she only stated that she is in possession of the property for more than 60 years and before her marriage, her husband was in occupation of the same and after her marriage, she joined her husband in staying in the suit property. Except the allegations and oral evidence, no proof was adduced by the 16th defendant to prove her adverse possession and she has not done any act to exercise the right of ownership over the suit property. 21. It is also settled law that long possession will not amount to adverse possession unless the person in possession of the property has exercised hostile attitude to the knowledge of the original owner for more than 12 years. 21. It is also settled law that long possession will not amount to adverse possession unless the person in possession of the property has exercised hostile attitude to the knowledge of the original owner for more than 12 years. In this case, except the pleading and evidence that she is in possession of the property for 60 years, she has not produced any document to prove that she exercised any right over the property to the knowledge of the original owner or she exercised hostile title against the original owners. Therefore, considering the evidence and pleadings and the judgments of the Supreme Court referred to above, the Trial Court has rightly held that the 16th defendant in A.S.No.927 of 1989 did not prove adverse possession. Though defendants 2 to 5, 7 to 9, 14 and 15 contended that the 16th defendant was put in possession as a caretaker, the specific case of the plaintiffs was that the 16th defendant was put in possession as a tenant. 22. The Trial Court also held that the 16th defendant was in possession of the property on the permission granted by the original owners and the successors in interest and the Trial Court did not give any finding that the 16th defendant is occupying the portion as a tenant. On the other hand, the Trial Court has given a finding that the 16th defendant is in possession of the property as a permissive occupier. Therefore, the 16th defendant is only a licensee and therefore, she can be evicted only through due process of law and that was found by the Trial Court stating that eviction proceedings has to be initiated against the 16th defendant for evicting her. Therefore, the 16th defendant is only a licensee and therefore, she can be evicted only through due process of law and that was found by the Trial Court stating that eviction proceedings has to be initiated against the 16th defendant for evicting her. Hence, all the points for consideration are answered against the appellants and I hold that the 16th defendant in A.S.No.927 of 1989 is in possession of the property as permissive occupier and she can be evicted only in the manner known to law and she has not perfected title by adverse possession and the appellants in A.S.No.141 of 1990 failed to prove that the suit property was dedicated by the mother Julaiga Ummal to the wakf and the suit property was rightly held as a private property of the original owners and that is not a wakf property and therefore, the legal heirs of Oli Sahib Maricar and Julaiga Ummal were competent to sell their respective shares and therefore, the suit for partition is also maintainable. In the result, the appeals and cross objections are dismissed. No costs.