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2018 DIGILAW 3334 (MAD)

Abdul Raheeb (Died) v. S. M. Basheer (Died)

2018-09-27

C.V.KARTHIKEYAN

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JUDGMENT C.V. KARTHIKEYAN, J. 1. The second appeal had been filed challenging the judgment and decree in A.S.No.231 of 1992, dated 30.08.1995 on the file of the I Additional Subordinate Court, Trichy, which judgment confirmed the judgment and decree in O.S.No.1795 of 1984 by the Principal District Munsif, Trichy. 2. O.S.No.1795 of 1984 had been filed seeking a judgment and decree for partition and separate possession and future mesne profits. It had been filed by Abdul Raheeb against two defendants, S.M.Basheer and Rabia Bibi. 3. In the plaint, it had been stated that the suit property in O.D.No.11, Begum Pallivasal Street, T.S.No.440 originally belonged to Mohammed Nazeeruddeen. He had two sons, Abdul Sattar and Abdul Latheef. The plaintiff, Abdul Raheeb, is the son of Abdul Latheef. The second defendant, Rabia Bivi, is the only daughter of Abdul Sattar. Both Abdul Sattar and Abdul Latheef have died. By document, dated 31.01.1935, the suit property was divided into two portions by the original owner, Mohammed Nazeeruddeen. The eastern side portion was allotted to Abdul Sattar and the western side portion was allotted to Abdul Latheef. It had been stated in the plaint that the document was acted upon. 4. The eastern portion is the property under dispute. In that portion, the plaintiff claimed one half share on the death of Abdul Sattar. He stated that the other one half share should be allotted to the second defendant, Rabia Bivi. It is claimed that the first defendant was in possession of the said portion. He is said to be a relative of second defendant. It had been further stated in the document dated 31.01.1935, that, if any alienation is to be done over the property, a first offer should be made to the other brother. The suit had been filed seeking partition and separate possession of the eastern portion of the said property. 5. The first defendant in his written statement stated that the entire property was given on lease to Mohammed Nazeeruddeen and he had constructed a building. It had been stated that he also had a daughter Zainab Bivi Ammal. It was also stated that apart from the plaintiff, the wife of Abdul Latheef, by name, Kaathoon Bivi and daughter Sumera Begum also had a share in the property. It had been stated that the suit is bad for non-joinder of necessary parties. It had been stated that he also had a daughter Zainab Bivi Ammal. It was also stated that apart from the plaintiff, the wife of Abdul Latheef, by name, Kaathoon Bivi and daughter Sumera Begum also had a share in the property. It had been stated that the suit is bad for non-joinder of necessary parties. It had been stated that the eastern portion had been allotted to the father of the second defendant and the plaintiff cannot claim any share in that portion. The second defendant had let out the portion to the first defendant on lease. This was to the knowledge of the plaintiff. It had been stated that by long possession, possessory title had also accrued to the first defendant. It had been stated that the first defendant had also purchased the property and had spent substantial amount for maintenance of the property. It had been further stated that the suit should be dismissed. 6. On the basis of above pleadings, the learned Principal District Munsif, Trichy framed the following issues for trial: "(1)Whether the first defendant had taken possession of the suit property under an mortgage deed, dated 04.08.1958, from the second defendant and thereafter had purchased the properties? (2)Whether the plaintiff and the second defendant are in possession of the property jointly? (3)Whether the continuous possession of the first defendant with the knowledge of the plaintiff has perfected title of the first defendant? (4)Whether proper Court fee has been paid in the suit? (5)Whether the suit is bad for non-joinder of necessary parties? (6)Whether the plaintiff is entitled for partition? (7)Whether the plaintiff is entitled for future mesne profits? (8)Whether the principle of preemption can be enforced against the second defendant?" 7. The plaintiff was examined as PW-1 and the second defendant was examined as DW-1. The plaintiff marked as Ex-A1, the document dated 30.01.1935, executed by Mohammed Nazeeruddeen. The defendants marked Ex-B1 to Ex-B10. These included the Othi deed dated 04.08.1959 as Ex-B1. The gift deed, dated 30.01.1935, which had also been marked as Ex-A1, was again marked as Ex-B2. The sale deed executed by the second defendant in favour of the first defendant, dated 24.07.1978 was marked as Ex-B4. The patta and the tax receipts was marked as Ex-B6-Ex-B10. 8. These included the Othi deed dated 04.08.1959 as Ex-B1. The gift deed, dated 30.01.1935, which had also been marked as Ex-A1, was again marked as Ex-B2. The sale deed executed by the second defendant in favour of the first defendant, dated 24.07.1978 was marked as Ex-B4. The patta and the tax receipts was marked as Ex-B6-Ex-B10. 8. On consideration of the oral and documentary evidence, the learned Principal District Munsif, held that the plaintiff had no right to claim for partition of the eastern portion, which had already allotted by Mohammed Nazeeruddeen to Abdul Sattar, the father of the second defendant. It had been further found that the first and second defendants were in continuous possession and consequently held that the plaintiff cannot seek partition and separate possession of the same. 9. The plaintiff then filed A.S.No.231 of 1992, which came up for consideration before the I Additional Subordinate Court, Trichy. By judgment and decree dated 30.08.1993, the learned I Additional Subordinate Judge, Trichy, re-examined the evidence on available and framed points for consideration. The learned I Additional Subordinate Judge found on facts that the suit property had been divided into eastern and western portion and separated portions had been taken possession by the two sons of Mohammed Nazeeruddeen and stated that the plaintiff was not entitled to seek partition of other one half share, which had already been allotted to Abdul Sattar. Consequently, the appeal was dismissed and the judgment and decree of the trial Court in O.S.No.1795 of 1984, dated 29.07.1991 was confirmed. 10. The plaintiff filed the present second appeal challenging the concurrent judgment and decree of the trial Court and the first appellate Court. 11. The second appeal was admitted on the following substantial questions of law: "(1)Whether the Courts below are correct in coming to the conclusion in applying the theory of adverse possession to the co-owner/co-sharers in a partition suit? (2)Whether the first defendant can claim adverse possession in the absence of evidence of by the second defendant from whom the first defendant has purchased the suit property?" 12. Pending appeal, the appellant died and his legal representatives have been brought on record as appellants 2-4. The first respondent also died and his legal representatives were brought on record as respondents 3-5. The third respondent also died. However, her legal representatives were already on record as respondents 4 and 5. Pending appeal, the appellant died and his legal representatives have been brought on record as appellants 2-4. The first respondent also died and his legal representatives were brought on record as respondents 3-5. The third respondent also died. However, her legal representatives were already on record as respondents 4 and 5. The parties shall be referred as plaintiffs and defendants for the sake of convenience. 13. Heard arguments advanced by Mr.R.Devaraj, learned Counsel for the appellants and Mr.S.Prakash, learned Counsel for the fifth respondent. There was no representation for the 2nd and 4th respondents. 14. The suit schedule property namely the eastern portion of O.D.No.11, N.D.No.4-A, in T.S.No.440 measuring 12 feet East-West and 25 feet North-South in old Ward No.4, Trichy originally belonged along with the western portion of the same property to Mohammed Nazeerddeen. It is further contended by the defendants that the land belonged to Begum Mosque, Trichy and had been leased out to Mohammed Nazeerddeen who put up a construction. He executed Ex-A1, gift deed. By this gift deed, he allotted the western side of the entire property to his son Abdul Lateef and the eastern portion to his another son Abdul Sattar. The plaintiff is the son of Abdul Lateef. The second defendant Rabia Bivi is the daughter of Abdul Sattar. The plaintiff was in possession of the western portion and the second defendant was in possession of the eastern portion. 15. It would be informative to examine the following genealogy table: 16. A perusal of the above genealogy table shows that Mohammed Nazeeruddeen had a daughter, Zainab Bivi and the plaintiff had a sister, Sumera Beggum. At the time of institution of the suit, the mother and sister of the plaintiff were also alive. The plaintiff claims one half share in the eastern portion, which was originally allotted to Abdul Sattar. This portion had thereafter devolved to his daughter, Rabia Bivi, the second defendant. The plaintiff claims a share in that portion also. He had not impleaded his mother and sister as parties to the suit. He had also not spoken about the daughter of Mohammed Nazurudeen, Zainab Bivi. By Ex-B3, dated 02.08.1958, Rameeza Bivi, mother of the second defendant had executed a release deed in favour of the second defendant. By Ex-B1, dated 04.08.1958, the second defendant executed a mortgage deed in favour of the first defendant. He had also not spoken about the daughter of Mohammed Nazurudeen, Zainab Bivi. By Ex-B3, dated 02.08.1958, Rameeza Bivi, mother of the second defendant had executed a release deed in favour of the second defendant. By Ex-B1, dated 04.08.1958, the second defendant executed a mortgage deed in favour of the first defendant. The first defendant has been in possession of the eastern portion from that date onwards. Thereafter, on 24.07.1978, by Ex-B4, the second defendant has sold the property to the first defendant. It is thus seen that several transactions had taken place over the eastern portion of the suit property. The plaintiff had not questioned. At the time of institution of the suit, the first defendant was in possession as owner by virtue of sale deed in his favour, Ex-B4. 17. These documents have not been pleaded by the plaintiff in the suit. He had suppressed all these facts. It is to be noted that the suit was filed on 24.10.1984. At that time, by Ex-B4, the eastern side had been sold to the first defendant by the second defendant. The document also reflects that the second defendant exercised not only the possessory title, but also ownership title over the eastern portion, which is the subject matter of the suit. It is the claim of the first defendant that he has been in possession to the knowledge of the plaintiff, even before 1958, when Ex-B1, mortgage deed was executed. 18. The second appeal had been admitted on the questions of law that whether adverse possession can be claimed by the first defendant as against the plaintiff and in the absence of evidence by the second defendant, from whom the first defendant had purchased the suit property. 19. A perusal of the records reveal that the second defendant had been very freely dealing with the property, which had never been questioned by the plaintiff. Her mother executed a release deed in her favour by Ex-B3, dated 02.08.1958. It had been the consistent stand by the first defendant that he came into possession atleast from 04.08.1958 under Ex-B1, the mortgage deed. Consequently, his possession had been adverse to the interest of the plaintiff. He also further perfected his title by purchasing the said property from the second defendant by Ex-B4, dated 24.07.1978. It had been the consistent stand by the first defendant that he came into possession atleast from 04.08.1958 under Ex-B1, the mortgage deed. Consequently, his possession had been adverse to the interest of the plaintiff. He also further perfected his title by purchasing the said property from the second defendant by Ex-B4, dated 24.07.1978. In the teeth of those documents, I hold that both the trial Court and the first appellate Court have rightly concluded that the plaintiff is not entitled to partition and separate possession and negatived his claim. The plaintiff is guilty of suppression of material facts. The original owner Mohammed Nazeeruddeen had executed a document, Ex-A1, which had also been marked as Ex-B2 and the property had been divided into two portions. Thereafter, the plaintiff cannot seek a share in the other portion allotted to his father's brother. 20. For all the reasons stated above, the second appeal is dismissed with costs. The judgment and decree of the learned I Additional Subordinate Judge, Trichy, in A.S.No.231 of 1992, dated 30.08.1993 confirming the judgment and decree of the learned Principal District Munsif, Trichy, in O.S.No.1795 of 1984, dated 29.07.1991 is upheld.