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2013 DIGILAW 586 (AP)

Mohd. Abdul Quayyum v. Mohd. Abdul Hadi

2013-07-24

L.NARASIMHA REDDY, S.V.BHATT

body2013
Judgment : LNR, J. Plaintiffs 4 and 5 and defendants 8 and 9 in O.S.No.193 of 1989 on the file of the learned Senior Civil Judge, Kothagudem are the appellants. Feeling dissatisfied with the preliminary decree, dated 18.11.1999, they filed this appeal. Originally, the suit was filed by one Mr. Abdul Khalique. During the pendency of the suit, he died and his legal representatives were brought on record as plaintiffs 2 and 3. At a later stage, defendants 2 and 4 got themselves transposed as plaintiffs 4 and 5. The suit was filed for partition and separate possession of items 1 to 5 of the plaint schedule properties. The contents of the plaint in brief are as under: One Mr. Mohd. Abdul Samad had four wives. Defendant No.1 and one Mr. Bari, father of defendants 8 and 9, are sons of Samad through his first wife. The original plaintiff is the son of Samad through his second wife. Defendants 2 to 5 are said to be the children of Samad through his 4th wife and the 3rd wife is said to have died issueless. The 1st plaintiff pleaded that the suit schedule properties viz., items 1 to 4 being the house properties at Kothagudem and item 5 comprising of two pieces of land in the neighbouring villages are the self acquisitions of Sri Abdul Samad. It was stated that after the death of Samad, the 1st defendant was administering the properties and inspite of repeated demands, he did not effect partition. The contest to the suit was only by the 1st defendant. He pleaded that item No.1 of the suit schedule properties, though purchased in the name of his brother Bari is being enjoyed by him for the past four decades and that the same is not liable to be partitioned. As regards item No.2, he pleaded that though it was owned by his father Abdul Samad, it was given in lieu of dower in the year 1957 at the time of marriage, to his wife, and his wife in turn made an oral gift thereof in his favour. He did not offer much of resistance in respect of items 3 and 4. However, he pleaded that one of the pieces of land in item No.5 viz., Ac.25.00 exclusively belongs to him. He did not offer much of resistance in respect of items 3 and 4. However, he pleaded that one of the pieces of land in item No.5 viz., Ac.25.00 exclusively belongs to him. Through its judgment, dated 18.11.1999, the trial Court passed a preliminary decree in respect of items 3 and 4 and one piece of land of Ac.17.00 in item No.5. Hence, this appeal. Learned counsel for the appellants submits that the trial Court was not at all justified in treating item No.1 as the exclusive property of the deceased-1st respondent, once it was proved that the property was purchased in the name of Mr.Bari. He contends that the only person, who could have claimed exclusive ownership over item No.1 were the legal representatives of Mr. Bari i.e., appellants 3 and 4 (defendants 8 and 9) and once they stated that they have no objection for partition of the property, the same is liable to be partitioned. Similar contentions are advanced by learned counsel for the appellants in respect of item No.2 and another bit of land in item No.5 Learned counsel for the 1st respondent, on the other hand, submits that the trial Court has taken into account, the sequence of events in respect of item No.1 for the past several decades and held that the rights of ownership were being exercised by the 1st respondent and that no exception can be taken to it. He further submits that in relation to item No.2, the trial Court has undertaken extensive discussion as to the manner in which the property was being enjoyed and there is no basis for ignoring the disposition made by late Abdul Samad in favour of the wife of the 1st respondent and the subsequent oral gift in favour of the 1st respondent by his wife. Learned counsel further submits that except furnishing a vague description of the properties in item No.5, the appellants were not sure as to what exactly is the survey number or the location, much less the manner in which the property was acquired by late Samad. The suit for partition was filed initially by one of the sons of late Abdul Samad. The trial Court framed the following issues for its consideration, on the basis of the pleadings before it: 1. Whether the plaintiffs are entitled to partition, separate possession and mesne profits as prayed for? 2. The suit for partition was filed initially by one of the sons of late Abdul Samad. The trial Court framed the following issues for its consideration, on the basis of the pleadings before it: 1. Whether the plaintiffs are entitled to partition, separate possession and mesne profits as prayed for? 2. Whether the defendant No.1 is the absolute owner of suit schedule house in items No.1 and 2 and land of Acs.25.00 in item No.5? 3. Whether the court fee paid is correct? On behalf of the plaintiffs, P.W.s1 to 9 were examined and Exs.A.1 to A.61 were filed. On behalf of the defendants, D.Ws.1 to 9 were examined and Exs.B.1 to B.59 were filed. A preliminary decree in respect of some of the items was passed. The points that arise for consideration before us in this appeal are: 1) Whether the appellants have proved that items 1 and 2 and part of item No.5 are available for partition? and 2) Whether the preliminary decree passed by the trial Court suffers from any legal or factual infirmity? Out of the five items, regarding which the partition was sought, four are properties situated in Kothagudem Town and two bits of land viz., Ac.17.00 and Ac.25.00 comprised in one item are in different villages. Here itself, it is relevant to mention that the description of the properties in item No.5 is vague and general and even the enforcement of the decree passed in relation thereto would be a stupendous task, particularly if one takes into account the requirement under Rule 3 of Order 7 C.P.C. That however is a different aspect. The composition of the family has already been indicated in the preceding paragraphs. The properties held by Abdul Samad constitute Matruka, for being divided among his legal heirs. The first item was purchased under Ex.A.50 in the name of Bari, one of the sons of Samad and father of appellants 3 and 4. According to the appellants, the property was purchased by Samad himself but the document was obtained in the name of Bari. This assertion was denied by the 1st respondent. According to him, one Mr.Mohd Saheb had a plot of big size in Kothagudem; he divided it into three parts and they were sold in favour of Abdul Bari (Ex.A.50), 1st respondent (Ex.A.57) and one Mr. Mohd. Hussain; almost simultaneously. This assertion was denied by the 1st respondent. According to him, one Mr.Mohd Saheb had a plot of big size in Kothagudem; he divided it into three parts and they were sold in favour of Abdul Bari (Ex.A.50), 1st respondent (Ex.A.57) and one Mr. Mohd. Hussain; almost simultaneously. The sale deed under which the 1st defendant purchased the plot is marked as Ex.B.57.In the course of evidence, it emerged that the plot purchased by the 1st respondent under Ex.A.57 was sold through Ex.A.58. Nowhere he has stated that he has purchased the plot from his brother, Bari. The basis for him to claim rights over the plot purchased under Ex.A.50 by Bari is that he made construction over the plot, his name is recorded in the municipal records and there exists a non-encumbrance certificate in his favour. Even if all this is true, he cannot become the owner of the property, unless he is able to establish the manner in which he acquired the rights. The mere possession and enjoyment of the property of an individual by his brother does not bring about transfer of the title nor such a plea can be accepted in a suit for partition of such a property. The trial Court was mostly impressed by the enjoyment of the property for a long period by the 1st respondent. It hardly needs any mention that whenever a property is held in joint, the enjoyment of the same by one of the joint owners would be for and on behalf of the other joint or co-owners. Though the concept of joint family is not prevalent in the persons professing Islam, the one pertaining to joint enjoyment can certainly be taken into account. If one goes by the title deeds in respect of item No.1, viz., Ex.A.50, the inescapable conclusion is that it was held by Bari. Once his legal representatives viz., appellants 3 and 4 plead that the purchase of the property in the name of their father was only for the sake of convenience and that the actual owner is their grand father i.e., Abdul Samad, the said item is available for partition. Item No.2 however stands on a different footing. It was acquired by Abdul Samad himself. However, way back in the year 1957, he executed an unregistered document giving it as dower in favour of his daughter-in-law i.e., wife of the 1st respondent. Item No.2 however stands on a different footing. It was acquired by Abdul Samad himself. However, way back in the year 1957, he executed an unregistered document giving it as dower in favour of his daughter-in-law i.e., wife of the 1st respondent. There is ample proof to establish that the property is being enjoyed by her and she in turn has orally gifted it in favour of her husband i.e., 1st respondent. It is not in dispute that the facility of making oral gifts is available to the parties and the exclusive possession of the 1st respondent over the property for almost half a century, without any protest from any of his step brothers would certainly affirm his right over the property. Therefore, we are not inclined to disturb the finding of the trial Court in relation to item No.2 Now remains one of the pieces of land covered by item No.5. We already observed that the description of the property is vague and imperfect. The appellants did not place before this Court, any record to substantiate their contention that the other piece of land was acquired by their common ancestor. No additional relief can be granted to the appellants vis-a-vis the left over property in item No.5 of the suit schedule. The trial Court has taken into account, the respective entitlement of the parties and directed partition. The only change we propose is that item No.1 also needs to be included in the list of properties that are available for partition. We accordingly allow the appeal in part, modifying the preliminary decree passed by the trial Court to the effect that item No.1 of the suit schedule shall be available for partition. The method of partition shall be the same as has been adopted in respect of other items. The miscellaneous petition filed in this appeal shall also stand disposed of. There shall be no order as to costs.