Ghulam Mustafa vs Bibi Zinat Fatma and Others <BR> Bibi Asma Khatoon Vs Sk. Ehsanullah and Others

Radha Mohan Prasad, J.—ln both the appeals the judgment and decree dated 25th June, 1977 passed in Title Suit No. 89 of 1970/188 of 1974 by the 3rd Additional Subordinate Judge, Arrah District Bhojpur is under challenge.

The Appellant in F.A. No. 785 of 1977 was Defendant No. 4 and Appellant In F.A. No. 791 of 1977 was Defendant No. 3 in the court below. The suit filed by the Plaintiffs-Respondent 1st set has been decreed against the contesting Defendants and a separate Takhta has been directed to be prepared for Rs. 5/3 pies share of the Plaintiffs over holdings No. 898 and 899 i.e. double storied kita house and for Rs. 3/2/2/1/2 karats share of the Plaintiffs over Holdings No. 900 and'' 901 i.e. single storied house. The same rakhtas have been directed to be prepared in favour of Defendant No. 2 and a separate Takhta of Rs. 9/7/7 Krat over Holding No. 900 and 901 has been directed to be prepared in the name of Defendant No. 3 and a separata Takhta of Rs. -5/6/ pies over Holdings No. 898 and 899 has been directed to be carved out in favour of Defendant No. 4.

According to the Plaintiffs case, the aforementioned houses in Arrah Town stand over Survey Plot No. 5382 of Khata No. 669 in Mohalla Milki. The said holdings are ancestral house of the Plaintiffs and Defendant 1st set whereas, according to the case of Defendant No. 2, the suit property originally belonged to Md. Ibrahim and on his demise was inherited by his two sons Mouivi Mohammad and Abdul Quadir and daughter Bibi Azama. Moulvi Mohammad''s widow Bibi Hazra and Bibi Azamat''s son Md. Noman sold their share in the suit house to All Hussain on 07.09.1951 (Ext. B-l) and Ali Hussain gifted it as Dain Mehar dated 09.11.1964 (Ext. C-l) to Defendant No. 3 who has been coming in possession.

Further case of the Plaintiff is that in execution of a money decree of one Harkhen Kumar Jain against Taiyba and Md. Amin, the house on Survey Plot No. 5382 was sold which was purchased by Gulam Mustafa (Defendant No. 4), who dispossessed the mortgagee Fazlur Rahman, but the said mortgagee filed Title Suit No. 9/25 of 1951-53 which was decreed on 30.11.1966 declaring that the house standing on Survey Plot No. 5382 was not sold in the execution case and that Gulam Mustafa had not acquired any right, and title on the said house. It is alleged that in a collusive certificate proceeding against himself Gulam Mustafa has got a sale proclamation issued in respect of the houses on Survey Plots No. 5362 and 5382 in favour of Defendant No. 5 and when the present Defendants No. 1 and 2 filed objection to the said sale it was held that their interest was not affected rather the interest of Gulam Mustafa was sold. Since Defendants No. 4 and 5 are purchaser in respect of portion of house on Survey Plot No. 5382, it was felt inconvenient to remain in joint possession and hence the present suit for partition was filed by the Plaintiff claiming share of 2 1/2 annas.

According to the case of Defendant No. 4, inter alia, it was contended that the suit house is not the ancestral property of the Plaintiffs and Defendant 1st set. S. P. No. 5382 originally belonged to Abdul Quadir whose heirs had executed mortgage bond in respect of the suit house to Fazulur Rahman on 28.6.45 and the mortgagee came in possession thereof. Defendant No. 4 claimed to have purchased the suit house and got D.P. over it in Execution Case No. 2099 of 1967 In the court of Execution Munsif, Arrah and Plaintiff No. 1 had given him its vacant possession. According to him, excess money deposited by him in the aforesaid execution, case was withdrawn by. Defendant No. 1 in his own capacity as well as. Mokhtar Am of the remaining heirs of Abdul Quadir. It was denied by him that the certificate case was collusive. According to him, the said certificate case was instituted against him because of default in payment of rent in which Defendant No. 5 had purchased the suit house and got D.P. over it in certificate sale. Later, Defendant No. 5 executed a deed of gift dated 23.9.1988 in favour of his mother Bibi Rahmat and the donee came in possession thereof. Again after the death of his mother, Defendant No. 1 succeeded in his property and came in possession thereof. The certificate sale and D.P. is said to be valid and genuine and binding upon these parties. It was thus contended that there is ho unity of title and possession over the suit property; rather Defendant No. 4 is the exclusive owner of the entire suit property.

The trial court on consideration of the evidences found that there was no document to show that the suit property originally belonged to Ibrahim on the other hand, C.S. Khatian (Ext. Q-11) shows that Khata No. 669, containing S.P. No. 5382, area 146 was recorded in the name of Mouivi Abdul Quadir son of Abu Mohammad Ibrahim. The trial court has not found any reliable evidence on the record to rebut the presumption of the original entry of the said Khata in the name of Mohammad Quadir. The sale certificate of Case No. 46 of 1920 (Ext. J-1) was relied upon by the Defendant 1st set to show that the suit property belonged to Moulvi Mohammad son of Md. Ibrahim also. The trial court on consideration that plot number or holding number was not mentioned in the sale certificate and the boundary mentioned therein also did not correspond with the boundary in the plaint held that it does not show that Moulvi Mohammad has any interest in the property.

The trial court has also considered about the claim of Mohammad Noman and Bibi Hazara with reference to the draft of the plaint (Ext-H-1) which has been filed by Md. Noman claiming partition and certified copy of the suit register (Ext. K-1)showing that the suit was dismissed for default, and held that the claim of Mohammad Noman on that basis is not proved that he had got any right, title and interest over the suit house. The trial court has, therefore, held that the admission of the Plaintiff (P.W. 6) that the house originally belonged to Ibrahim and that Ali Hussain had purchased the share of Bibi Hazara and Noman over the suit house, cannot be used against the main contesting Defendant Mohammad Mustafa (Defendant No. 4) but it shall be used against the interest of the Plaintiffs themselves only.

Learned Counsel for the Appellant in F.A. No. 785/77 has not been able to assail the said finding of the trial court. On merit of the claim of Defendant No. 4 Appellant in First Appeal No. 785/77 for having purchased the entire suit house in Execution Case No. 2099/47, reliance was placed on the certified copy of the sale certificate (Ext. M-ll) and the writ of D.P. in Execution Case No. 2088/47 (Ext. J-ll). Defendants 1st set filed certified copy of the judgment of Title Suit No. 9 of 1951 of the court of 2nd Additional Munsif, Arrah dated 30.11.1956 ( Ext. H-l) and its First Appeal judgment in T.S. No. 1057 (Ext. H-1/2) to show that under the aforesaid execution sale and D, P. only the interest of Mohammad Amin and Most. Taiba Khatoon has been held to have been purchased by Mohammad Mustafa and, further, that some other house and the suit house was held to have been purchased by him.

Title Suit No. 9/51 was filed by the mortgagee Fazlur Rahman against Gulam Mustafa and ten others for declaration that Gulam Mustafa had not purchased the house which was mortgaged by Taiba Khatoon and others to him. The trial court has held that Rehan bond conveyed only the interest of Mohammad Amin and Taiba Khatoon and the interest of the minor heirs of Mohammad Quadir was not legally alienated. It was also held that Mustafa has not purchased the house which was mortgaged to Fazlur Rahman. Considering both these, findings which was confirmed in First Appeal as also Second Appeal No. 522/58 which was dismissed in terms of the compromise according to which Appellant Gulam Mustafa was paying Rs. 15/-per month to Fazlur Rahman, the trial Court held that the findings in Title Suit No. 9/51 will act as estoppels against Gulam Mustafa in the present suit. The trial court has also considered the said judgment vis-a-vis the interest of Gulam Mustafa which the learned Counsel for the Appellant in First Appeal No. 785/77 has completely failed to assail. The finding that the right, title and interest of Md. Mustafa that the property which he had purchased in the aforesaid auction sale was not adversely affected by the aforesaid previous judgment and the certified copy of the sale certificate and the writ of D.P. show that he had purchased the second storied house along with courtyard could not be assailed.

The another point which has been considered by the trial court is as to whether Mohammad Mustafa had purchased and could have legally purchased the entire 16 annas share of all the heirs of Mohammad Quadir over the said second storied house or only the interest of Mohammad Amin and Taiba Khatoon. On consideration of the position in law, the trial court has held that Mohammad Mustafa (Defendant No. 4) could not have legally purchased the share of the minor children of Mohammad Quadir over the second storied house in which no infirmity has been brought to my notice by the learned Counsel for the Appellant.

In the circumstances, I find that the trial court has rightly held that the share of Bibi Taiba Khatoon and that of Mohammad Amin together comes to Rs. 5/6 pies and the share of the Plaintiffs and Defendants No. 1 and 2 remained intact over the said property and, further, rightly held that the auction purchase and the D.P. beyond the aforesaid interest of Mohammad Mustafa are illegal and beyond jurisdiction and cannot defeat the right, title and interest of other co-sharers. The trial court in paragraph 10 of the impugned judgment has also considered the evidences of both parties in support of their claim regarding possession over the suit house.

It was contended by the learned Counsel for the Appellant in First Appeal No. 791 of 1977 that there was neither any pleading by Defendant No. 4 nor any issue framed by the trial court that the Defendant No. 4 has perfected his title by adverse possession and hence, according to him, the question of adverse possession has wrongly been considered by the trial court as it is well settled that anyone claiming title by adverse possession has to plead and prove the same. It was further contended that there is clear finding in paragraph 11 of the trial court judgment that even according to the case of Defendant No. 4 his possession was Interrupted by the auction purchase by Defendant No. 5 and that he re-entered into possession after the death of his mother.

I fail to appreciate the said submission of the learned Counsel for the Appellant in First Appeal No. 791/77, The trial court has not recorded any finding In favour of Defendant No. 4, rather on consideration of the evidence in detail In paragraph 11, the trial court has held that there is no question of ouster and perfection of Defendant No. 4 by adverse possession. Mr. Hussain, learned Counsel appearing for the Appellant in First Appeal No. 785/77, however, tried to assail this finding of the trial court on the basis of the evidences of D.Ws. 7 to 15 who have supported the case of Defendant No. 4 that he has been coming in exclusive possession of the entire suit property. D.Ws. 12, 13 and 14 claimed to be tenant of Defendant No. 4 but since no documentary evidence to prove the said fact has been brought on the record, the trial court has rightly declined to accept the said evidence.

Defendant No. 4 also placed reliance on some documentary evidences which has also been considered by the trial court in paragraph 11 of the impugned judgment and the said evidences cannot be of any help to him as even according to his own case, his possession was interrupted by the auction purchase of the suit properties by Defendant No. 5 who re-entered into possession of the suit properties after the death of his mother. Nothing was brought on the record to show the date of death of his mother. As such, the trial court has drawn inference that it must be after the alleged sale deed executed by her on 11.03.1970 (Ext. D-ll/1), and the present suit was filed in the year 1970 and, therefore it has rightly been held that there is no question of ouster and perfection of title of Defendant No. 4 by adverse possession. No infirmity has been brought to my notice with respect to the finding recorded by the trial court in regard to single storied house, in view of the admission of the Plaintiffs that the husband of Defendant No. 3 had validly purchased the share of Bibi Hazra and Noman over the said house.

In the aforementioned circumstances, I do not find any infirmity in the impugned-judgment and both the appeals are, accordingly, dismissed, but without costs.