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2021 DIGILAW 987 (MAD)

Sarammal v. Alima (Died)

2021-03-18

R.SUBRAMANIAN

body2021
JUDGMENT : 1. The defendants 50 to 58 in O.S.No.1 of 2012 are on appeal in S.A(MD)No.175 of 2021 against the preliminary decree for partition granted in the said suit and affirmed on appeal in A.S.No.19 of 2014 on the file of the Principal District Court, Dindigul. 2. The other second appeal, namely, S.A.(MD)No.176 of 2021, is against the dismissal of the suit in O.S.No.2 of 2012 filed for injunction by the defendants 1 and 55 in O.S.No.1 of 2012, contending that the defendants in the said suit, namely, the plaintiffs in O.S.No.1 of 2012 and the other descendents of Ahammed Bawa Rawthar, are attempting to interfere with their possession of the suit property. Since the first plaintiff in the suit in O.S.No.2 of 2012 died pending suit, the plaintiffs 3 to 12 were impleaded as his legal heirs. Since the fourth plaintiff in the said suit died pending suit, the plaintiffs 13 to 15 were impleaded as her legal heirs. 3. As far as the suit for partition is concerned, the case of the plaintiffs is that the suit properties originally belonged to the brothers, namely, Ahammed Bawa Rowther and Mohammed Ishak Rowthar. It is also averred that the said Mohammed Ishak Rowther sold his half share to Ahammed Bawa Rowther on 04.05.1938. Hence, Ahammed Bawa Rowther had become the absolute owner of the suit properties. The said Ahammed Bawa Rowther died, leaving behind his wife, Ayisha Bibi, six sons and three daughters, in the year 1952. Abdul Rahim, one of the sons of Ahammed Bawa Rowther, died in the year 1966 leaving behind his wife Maimoon Bibi and his children, who were shown as defendants 17 to 21 in the suit. The wife of Ahammed Bawa Rowther, Ayisha Bibi, died in 1969 and her 1/8 share again devolved on her children. It is also claimed that the eldest son of Ahammed Bawa Rowther, namely, Moahmed Hussain died in the year 1970 leaving behind his wife, the fourth defendant and his children, defendants 5 to 7. One of the daughters of Ahammed Bawa Rowther, Sahar Ban Bibi died in 1982 leaving behind the defendants 8 to 16 to succeed to her interest. The suit was laid by three sons of Ahammed Bawa Rowther claiming 53/130 shares in the suit properties. 4. One of the daughters of Ahammed Bawa Rowther, Sahar Ban Bibi died in 1982 leaving behind the defendants 8 to 16 to succeed to her interest. The suit was laid by three sons of Ahammed Bawa Rowther claiming 53/130 shares in the suit properties. 4. The suit was resisted by the first defendant contending that the suit items 1 to 3 and 7 are his properties and he being the absolute owner, they cannot be the subject matter of partition between the heirs of Ahammed Bawa Rowther. In support of his contention, he had relied upon certain encumbrances created by him and alienation by way of settlement deed in the year 1983 in favour of his son, Mohamed Iliyas, who is the first appellant. 5. The first defendant died pending suit and his legal heirs were brought on records as defendants 50 to 58. Many of the parties died pending proceedings and their legal heirs were brought on record. The suit for partition which was originally instituted in the year 1983 and the number of defendants, that was 21 at the time of inception, swelled to 83, when the suit came to be disposed of. The other legal heirs of Ahammed Bawa Rowther accepted the case of the plaintiffs. 6. At trial, the 15th plaintiff Sheik Alavudheen was examined as PW-1 and one Mohamed Ali examined as PW-2. The 55th defendant Mohamed Iliyas was examined as DW-1 and N.Sivalingan and M.Raman were examined as DW-2 and DW-3. Ex-A1 to Ex-A6 were marked on the side of the plaintiffs and Ex-B1 to Ex-B32 were marked on the side of the defendants. A Commissioner was appointed. His report and plans were marked as Ex-C1 to Ex-C4. 7. The trial Court, upon a consideration of the evidence on record, concluded that the claim of the first defendant that he is entitled to suit items 1 to 3 and 7 absolutely has not been proved. In order to buttress the said conclusion, the trial Court relied upon the contradictions in the pleadings and the evidence of the first defendant. The first defendant, in his written statement, has claimed absolute right over the suit properties. However, in the evidence, he conceded that the properties belonged to his father and they were allotted to him in a partition, that took place in the year 1956. The first defendant, in his written statement, has claimed absolute right over the suit properties. However, in the evidence, he conceded that the properties belonged to his father and they were allotted to him in a partition, that took place in the year 1956. DW-1 in the evidence had claimed that the other legal heirs of Ahammed Bawa Rowther had released their rights over the property in favour of the first defendant orally. The trial Court also disbelieved the claim of the first defendant based on the execution of certain instruments of mortgage, on the ground that it is an admitted case of the parties that the first defendant, who was always living in the village, where, the suit property is situated, was in management of the suit property and therefore, the act of the first defendant in mortgaging the property would not amount to proof of his exclusive title. On the said findings, the learned Trial Judge decreed the suit as prayed for. Aggrieved, the heirs of the first defendant, namely, defendants 50 to 58 filed an appeal in A.S.No.19 of 2014. The learned Appellate Judge, upon a re-consideration of the evidence on record, concurred with the findings of the trial Court with reference to the immovable properties, namely, item Nos.1 to 11 and dismissed the appeal. As regards suit item No.12, namely, movable properties, the learned appellate Judge found that they were not available and hence, dismissed the suit with reference to suit item No.12. Hence, the legal heirs of the first defendant, namely, defendants 50 to 58, have come up with the second appeal in S.A.(MD)No.175 of 2021. 8. The other suit in O.S.No.2 of 2012 was filed by the first defendant in O.S.No.1 of 2012 and one of his sons, Mohammed Iliyas, seeking permanent injunction restraining the defendants therein from interfering with their possession of the property. Since Abdul Salam and some of his heirs died pending suit, the other plaintiffs were impleaded, as legal representatives. 9. In view of the judgment and decree in the suit for partition recognising the rights of the plaintiffs therein, the trial Court concluded that the plaintiffs in O.S.No.2 of 2012 are not entitled to the decree for permanent injunction. The appeal against the said judgment and decree in A.S.No.36 of 2014 was also dismissed. 9. In view of the judgment and decree in the suit for partition recognising the rights of the plaintiffs therein, the trial Court concluded that the plaintiffs in O.S.No.2 of 2012 are not entitled to the decree for permanent injunction. The appeal against the said judgment and decree in A.S.No.36 of 2014 was also dismissed. Hence, the second appeal in S.A.(MD)No.176 of 2021 has been filed at the instance of the plaintiffs in O.S.No.02 of 2012. 10. I have heard Mr.D.Nallathambi, learned Counsel appearing for the appellant. 11. Mr.D.Nallathambi, learned Counsel appearing for the appellants would vehemently contend that the Courts below were not right in ignoring the documentary evidence produced to show the exclusive title of the first defendant of the suit items 1 to 3 and 7. He would also draw my attention to various documents and acts of encumbrances to contend that fact that the first defendant had exercised ownership over those properties would show that he is the absolute owner of the properties. The learned Counsel for the appellants would also fault the Courts below for having dismissed the suit for injunction on the ground that the defendants are co-owners along with the plaintiffs and therefore, there cannot be injunction against a co-owner. 12. I have considered the submissions of the learned Counsel for the appellants. 13. The plaintiffs have come to Court with the specific case that the properties belonged to Ahammed Bawa Rowther and they being the heirs of Ahammed Bawa Rowther are entitled to a share in the suit properties. This plea is resisted by the first defendant contending that the suit items 1 to 3 and 7 belonged to him, since patta has been granted to him. It is also claimed that the first defendant had executed a settlement deed in favour of one of his sons Moahmmed Iliyas on 07.12.1983 in exercise of his rights of ownership. The other defendants have substantially accepted the case of the plaintiffs. Therefore, the burden is on the first defendant, who claims exclusive title to the property, to prove his exclusive right. The evidence in this regard is totally lacking. Except certain revenue documents and certain acts of encumbrances created by the first defendant, there is no other title documents in support of the claim of the first defendant. 14. Therefore, the burden is on the first defendant, who claims exclusive title to the property, to prove his exclusive right. The evidence in this regard is totally lacking. Except certain revenue documents and certain acts of encumbrances created by the first defendant, there is no other title documents in support of the claim of the first defendant. 14. The trial Court as well as the appellate Court had taken note of the contradicting stands taken by the first defendant and his legal heirs in their pleadings and in their evidence and concluded that the case of the first defendant cannot be accepted. Both the Courts have have also pointed out the recitals in the settlement deed, dated 07.02.1983 executed by the first defendant, which recites that the properties were obtained by the first defendant from his paternal ancestors to negative his claim. The document recites “vdf;F gpJh;uh[pakhf ghj;jpag;gl;lJ”. According to the Courts below, these recitals in the document, dated 07.02.1983 executed by the first defendant would falsify the claim of the first defendant that he is the absolute owner of the property. 15. It is also the finding of the Courts below that suit item Nos.1 to 3 and 7, are covered by the sale deed, dated 04.05.1938 executed by Moahmmed Ishak Rowther in favour of his brother, Ahammed Bawa Rowther. It is not the case of the first defendant that he has been in exclusive possession and thereby, he was ousted the other defendants from the properties. Once it is found that the properties belonged to a common ancestor, one of the sharers cannot claim exclusive title, except by way of ouster. The first defendant had not pleaded ouster. In the evidence, DW-1 had deposed that other heirs had orally relinquished their rights in favour of his father. An oral relinquishment is unknown to law. Hence, the Courts below were perfectly justified in rejecting the claim of exclusive title by the first defendant and decreeing the suit for partition. 16. Insofar as the suit for injunction is concerned, the specific case of the defendants is that the first defendant, as the eldest son of Ahammed Bawa Rowther, was in management of the properties and therefore, a co-owner in possession on behalf of the other co-owners cannot seek a permanent injunction restraining the other co-owners from interfering with his possession. 16. Insofar as the suit for injunction is concerned, the specific case of the defendants is that the first defendant, as the eldest son of Ahammed Bawa Rowther, was in management of the properties and therefore, a co-owner in possession on behalf of the other co-owners cannot seek a permanent injunction restraining the other co-owners from interfering with his possession. As such, the Courts below cannot be faulted for having dismissed the suit for injunction. 17. Despite his best efforts, the learned Counsel for the appellants is unable to make out a question of law, much less a substantial question of law to enable me to entertain the appeals. The appeals, therefore, fail and accordingly dismissed without being admitted. No costs. Consequently, connected miscellaneous petition is closed.