Sheik Mohammed vs Ramzan Bi and Others

G. Rajasuria, J.—This appeal is focussed animadverting upon the judgment and decree dated 27.4.2005 passed by the learned Principal

District Judge, Villupuram in A.S. No. 90 of 2004, reversing the judgment and decree of the learned Subordinate Judge, Kallakurichi, in O.S. No.

29 of 1996 dated 8.10.2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

Bereft and niggard of unnecessary details, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:

The respondents 1 and 2 herein, namely Ramzan Bi and Baljkiz Bi, filed the suit seeking the following reliefs:

(a) To pass a decree for partition and separate possession of plaintiffs'' l/3rd share in the suit properties;

(b) to provide for ascertainment of profits from the suit properties from the date of plaint till delivery of possession in final decree proceedings; and

(b) For costs.

(extracted as such)

Challenging and refuting the averments/allegations in the plaint, D1 filed the written statement, which was adopted by D2 to D8. D9 remained ex

parte before the trial Court.

The lower Court framed the relevant issues.

Up went the trial, wherein, the first plain-tiff/Ramzan Bi examined herself as P.W.1 along with P. W.2-Meerasa Sahib and no documents were

marked. The first defendant-Sheik Mohamad examined himself as D.W.1 along with D.W.2-Raja Mohamed and Exhibits B-1 to B-17 were

marked.

Ultimately the trial Court dismissed the suit as against which the appeal was filed, whereupon the appellate Court partly decreed the suit.

Being aggrieved by and dissatisfied with the judgment and decree of the appellate Court, D1 filed the Second Appeal suggesting various

substantial questions of law.

A summation and summarization of the averments in the plaint would run thus:

(a) One Ismail Sahib happened to be the absolute owner of the fourteen items of immovable suit properties found described in the schedule of the

plaint. He died during the year 1965 leaving behind his wife Ayasha Bi, who also died seven years anterior to the filing of the suit. The couple had

the following children:

Ramzan Bi (daughter)

Balkiz Bi (daughter)

Sheik Mohamed (D1)

Meerasa

D2-Balkiz Bi, is the wife of deceased Meerasa, the son of Ismail Sahib. D3 to D6 are the children of Meerasa. D7 to D9 are the purchasers of

part of the suit properties from D1.

(b) The plaintiffs 1 and 2 jointly are entitled to one third share in the suit properties, as per Mohammedan Law.

Per contra, the defendants'' written statement would pithily and precisely run thus:

Some of the aforesaid 14 items of the suit properties happened to be the joint properties of said Ismail Sahib and his two brothers. namely Basha

and Sheik Rahman. As such, Ismail Sahib was entitled to only one third share in such items of the suit properties. The details relating to the suit

properties are thus

(emphasis supplied)

The first defendant also pleaded ouster on the ground that he has been in possession and enjoyment of some of the suit properties and that

some other third parties are there in possession of some of the suit properties, as they purchased the properties from D1''s uncle, so to say the

brothers of Ismail Sahib, the father of D1.

My learned Predecessor framed the following substantial questions of law, based on the substantial questions of law suggested by the

appellants in the Second Appeal:

Whether the lower appellate Court is correct in law in decreeing the suit for partition when the plaintiff/respondents 1 and 2 herein have not

proved their case that the suit properties were the self acquired properties of (late) Ismail Sahib?

Whether the lower appellate Court is correct in law in not considering the judgment of this Hon''ble Court 2003 (2) CTC 106?

Whether the lower appellate Court is correct in law in decreeing the suit on the basis of the evidence let in by the defendant and casting the onus

upon the defendant to prove the plaintiffs'' case?

(extracted as such)

After hearing both sides, to their knowledge, I re-formulated the following substantial questions of law:

(1) Whether the first appellate Court and the trial Court were justified in ignoring the facts that even as per the pleadings and evidence adduced on

both sides, some of the suit properties happened to be the properties which originally belonged to the three brothers namely, Ismail Sahib, Basha

and Sheik Rahman and that third persons who are not parties to the suit are in possession of some of the suit properties?

(2) Whether despite the depositions of P.W. I and D.W. 1, both the Courts below were justified in not giving a finding concerning the alleged

division in status between those three brothers, namely Ismail Sahib, Basha and Sheik Rahman?

(3) Whether the first appellate Court was justified in excluding item Nos. 5, 9 and 10 of the suit properties from the purview of partition?

(4) Whether the first appellate Court was justified in passing the decree in the absence of others, who also admittedly acquired right over part of

the suit items?

(5) Whether there is perversity or illegality in the judgment and decree of the first appellate Court?

At the outset, I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:

(i) Hero Vinoth (minor) Vs. Seshammal,

(ii) Kashmir Singh v. Harnam Singh and Another 2008 (4) Scale 300

(iii) State Bank of India and Others v. S.N. Goyal (2009) 1 LW 1

(iv Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi,

A mere poring over and perusal of those judgments would convey and portray, that the High Court while exercising power u/s 100 of CPC should

see as to whether there is any substantial question of law is involved in the matter. However, after framing such substantial question of law,

interference would be possible. Hence, it is the paramount duty of the Court to find out as to whether there is any perversity or illegality on the part

of the Courts below in deciding the issues involved in the matter.

Indubitably and indisputably, unarguably and unassailably, the following are the facts which could be deduced and discerned from the available

records.

One Ismail Sahib had two brothers, namely Basha and Sheik Rahman. The plaintiffs 1 and 2, D1, and deceased Meerasa happened to be the

children of Ismail Sahib. The plaintiffs filed the plaint assuming and presuming as though all the 14 items of the suit properties happened to be the

self acquired properties of Ismail Sahib. However, P.W. 1 himself during cross examination admitted that such was not the real position. There

emerged according to him an oral partition, the details of which he could not furnish. The perusal of the deposition of D.W.1 coupled with Exhibits

B-3 to B-10, would reveal that some of the suit properties originally belonged to the three brothers referred to supra namely, Ismail Sahib, Basha

and Sheik Rahman. There is no precise evidence to show that by metes and bounds the properties were partitioned. It is an admitted case that

other than the pares to the suit, some other third parties are in possession and enjoyment of certain portions of the suit properties. Wherefore it is

clear, the: Ismail Sahib the Propositus of the plaintiff''s 1 and 2 and Dl to D6 were entitled to one third share in some of the items of suit properties.

But there is no precise evidence to display and demonstrate that Ismail Sahib, as on the date of his death was in possession and enjoyment of his

one third share by metes and bound; in all the items of suit properties or at least some of them. Once it is found that the said Ismail Sahib was in

possession of one third share by metes and bounds, as on the date of his death, in respect of specific items of suit properties, then the question of

adding third parties who are in possession of the remaining extent of such properties concerned, would not arise. But on the other hand, if there is

no evidence to show that Ismail Sahib was in posses don of his one third share by metes and bounds as on the date of his death in respect of the

properties, then necessarily the other parties which are in possession of the remaining extent of the properties should be added as parties for

proper partition and allotment of the respective shares of the parties herein.

It is not the case of the descendants of Ismail Sahib that he himself alienated any part of the property in favour of his descendants either by

sale, Will or Hiba. This case is having a chequered career of its own, as the parties have been fighting at arms length ever since 1980.

The learned counsel for the plaintiffs also would highlight that earlier, from the trial Court judgment and decree granting relief one appeal was

filed before the District Court, Villupuram and the case was remitted back and thereafter alone the suit was dismissed, whereupon the first

appellate Court set aside the judgment and decree of the trial Court and partly decreed the suit for partition, as against which this Second Appeal

was filed.

At this juncture, I recollect the following maxims:

(1) Boni judicis est ampliare jurisdictionem - It is the part of a good judge to enlarge (or use liberally) his remedial authority or jurisdiction.

(ii) Boni judicis est ampliare justitiam - It is the duty of a good judge to enlarge or extend justice.

(iii) Boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae at sint fines litium - It is the duty of a good judge to prevent litigations,

that suit may not grow out of suit, and it concerns the welfare of a state that an end be put to litigation.

Accordingly the Court itself in matters of partition suits should pass suitable orders so as to see that the matter is settled once and for all. As

such, partition suits are entirely on a different footing than any other suit.

In my considered opinion, necessarily the trial Court, should with the help of both parties find out as to in respect of how many items of suit

properties the one third share of Ismail Sahib was enjoyed by him by metes and bounds without the involvement of third parties. If such an exercise

could be done, then straightaway decree could be passed allotting jointly one third share in favour of the plaintiffs, as D1 would be entitled to

another one third share and D2 to D6 would be entitled to remaining one third share representing the share of their deceased Propositus, Sheik

Ismail Sahib. D7 to D9 are only purchasers from D1 and they have to work out their equities in the share of D1 only. It is also quite obvious that

as per Mohammedan Law, the daughters are entitled to one share, whereas the sons are entitled to two shares. Accordingly alone, the aforesaid

shares are worked out.

The plea of ouster as pleaded by the defendants is far from satisfactory in the facts and circumstances of this case.

I recollect and call up the following decisions relating to ouster:

(1) M. Arthur Paul Ratna Raju and Others Vs. Gudese Garaline Augusta Bhushanabai and Another,

(2) Janaki Pandyan v. Ganeshwar Panda (dead) 2001(1) CTC 19 (SC)

(3) Neelaka Pillai @ Sarojiniamma v. Velu Pillai (2002) 3 MLJ 728

As such, so easily co-sharers cannot plead ouster unless there is clinching evidence to show that the claimant co-sharer was ousted from

enjoying the joint property. The question of assuming and presuming adverse possession in favour of the other co-sharers who plead ouster will not

arise at all. In this case except marking the documents Exhibits B-1 to B-17, there is nothing to show that Dl to D6 were enjoying the entire share

of Ismail Sahib to the exclusion of the plaintiffs. It is also a common or garden principle that the plaintiffs being Muslim ladies after their marriage

were expected to be in their respective husband''s houses and in such a case, the question of they having been not in possession of the suit

properties would not enure to the benefit of Dl to D6. At this juncture I would like to extract here under the concepts ''corpus possessions and

''animus posited'' as found in the famous treatise Salmond''s Jurisprudence:

...SALMOND considered that possession consisted of a corpus possessions and an animus posited. The former, he thought, comprised both the

power to use the thing possessed and the existence of grounds for the expectation that the possessor''s use will not be interfered with. The latter

consisted of an intent to appropriate to oneself the exclusive use of the thing possessed.

It is certainly true that in assessing whether possession has been acquired, lost or abandoned intention may be highly relevant....

The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or

using it - in which event he clearly has possession - we have to ask whether the facts are such that we can expect him to be able to enjoy the use of

it without interference on the part of others.

(emphasis supplied)

Accordingly if viewed, there is no shred or shard, jot or miniscule extent of evidence to convey and connote that the plaintiffs were ousted from

enjoying the suit properties. The Hon''ble Apex Court also in the aforesaid decisions unambiguously and unequivocally highlighted, that mere

enjoyment of a property for any number of years, would not enure to the benefit of the person enjoying it as though he acquired prescriptive title or

adverse possession as against the real owner, unless the animus is found established as highlighted supra. As such, the trial Court was wrong in

invoking the plea of ouster without any basis. However, the first appellate Court without taking note of the fact that as to who are all in possession

and enjoyment of the remaining two third shares, simply granted under Clause 3,1 /9th share in favour of the plaintiffs in item Nos. 4,6,11,12 and

It is not the case of the defendants themselves that in respect of the remaining 8/9th share only the defendants are in occupation and enjoyment

of those items. When such is the position, there is no knowing of the fact as to how the appellate Court which happened to be the last Court of

facts, ignoring the germane facts could simply grant such an in-executable decree.

Regarding item No:. 5, 9 and 10 are concerned, the learned counsel for the appellants would submit that the first appellate Court itself, in

confirmity with the trial Court did not grant any relief in favour of the plaintiffs herein and in such a case. this Court could exclude those items from

the purview of analysis. Whereas, the learned counsel for the respondents would submit that under Order 41 Rule 33 of CPC, once the High

Court after considering the genuineness and the sustainability and maintainability of the ratiocination and reasonableness adverted to by the lower

Court, disagrees with the approach of such Court, the question of excluding from the purview of such analysis relating to item Nos. 5,9 and 10

would be a well neigh impossibility. I could see considerable force in the submission made by the learned counsel for the respondents/plaintiffs.

At this juncture, I would like to highlight that if it could be show that the suit property item Nos. 5,9 and 10 belonged to Ismail Sahib, then

naturally the same logic as applied to other items would also be applicable. However, the learned counsel for the appellant/D1 would submit that

item No-.. 5 and 9 as well as 10 were purchased from third parties by Dl and in such a case, they are this exclusive properties. However, such a

finding is not found exemplified in the judgment of the either of the Courts below. I would life to disambiguate and clarify that if it could be shown

by the plaintiffs that those items also originally belonged to Ismail Sahib, then the plaintiffs would be entitled to 1 /9th share or l/3rd share as the

case may be in those items also. But on the other hand, if it could be shown by D1 that item Nos. 5, 9 and 10 wire purchased from third parties,

then D1 should be declared as the absolute owner of those items, as Mohammedan Law does not contemplate Benami transactions and it

discourages the same. In such a case, the trial Court has to simply from the evidence that might be adduced by either side find out as to whether

item Nos. 5, 9 and 10 originally belonged to Ismail Sahib or to the family of Ismail Sahib, comprising of himself and his two brothers and

accordingly a decision has to be taken. Simply because an exhibit emerged relating to a previous litigation initiated by D1 as against the second

plaintiff, that it does not mean that the first plaintiff also should have been precluded from making claim over the property.

At this juncture I recollect the maxim:

Res inter alios acta alteri nocere non debet - A transaction between two parties ought not to operate to the disadvantage of a third

which means that a third party to a litigation is not bound by any judgment that might emerge thereunder, except a judgment in rem.

On balance,

(i) The substantial question of law No. 1 is decided to the effect that both the Courts below were not justified in ignoring the facts that even as per

the pleadings and evidence adduced on both sides, some of the suit properties happened to be the properties which originally belonged to the three

brothers namely, Ismail Sahib, Basha

and Sheik Rahman and that third persons who are not parties to the suit are in possession of some of the suit properties.

(ii) The substantial question of law No. 2 is decided to the effect that despite the depositions of P.W. 1 and D.W.1., both the Courts below were

not justified in not giving a finding concerning the alleged division in status between those three brothers, namely Ismail Sahib, Basha and Sheik

Rahman.

(iii) The substantial question of law Nos. 3 and 4 are decided to the effect that the first appellate Court was not justified in excluding item No. 2 of

the suit property from the purview of partition without furnishing reasons, as the defendants narration in the written statement is found to be wrong

and it was not justified in passing the decree in the absence of others, who also admittedly acquired right over the suit property subject to my

observations above. However, I make it clear that if it is found that those items did not belong to Ismail Sahib and those items were purchased by

the defendant or defendants, then the same could be declared to be the absolute properties of the defendant or defendants, as the case may be.

(v) The substantial question of law No. 5 is decided to the effect that there is perversity and illegality in the judgment and decree of the first

appellate Court.

As such, the judgment of the first appellate Court should necessarily be set aside and accordingly the matter is remitted back to the trial Court

with the following findings:

The plaintiffs are entitled to one third share in the suit properties over which Ismail Sahib had l/3rd share and in respect of other items of suit

properties, the plaintiffs are entitled to l/3rd share if it could be proved that Ismail Sahib had absolute right over the entire items. In respect of items

over which Ismail Sahib had no right, the plaintiffs would not get any share. The plaintiffs have to prove that items 5,9 and 10 originally belonged to

Ismail Sahib. Regarding item Nos. 7, 8 and 13 are concerned, there is no controversy between the parties as the plaintiffs jointly are entitled to one

third share and Dl is entitled to another one third and D2 to D6 are entitled to still one third share. The trial Court shall appoint an advocate

Commissioner to find out the physical features of the suit properties after measuring the same with reference to revenue records; based on that

additional evidence should necessarily be adduced by the plaintiffs to establish as to whether Ismail Sahib was in possession and enjoyment of his

l/3rd share in items Nos. 2, 3, 4, 6, 11, 12, and 14 by metes and bounds. Regarding item No. 1 also details be gathered by the Commissioner as

above and parties should by evidence clarify the position.

The first appellate Court being the last Court of facts, in respect of item Nos. 7,8 and 13 of the suit properties virtually arrived at the

conclusion, that other than Ismail Sahib, no other person had any right and as such, proceeding on that basis, allotted one-third share in favour of

the plaintiffs.

In respect of the first item of the suit property also, the first appellate Court held that out of the extent of 3 acres 72 cents, the plaintiffs are

entitled to one third share, but it is not readily known whether the said extent of 3 acres 72 cents in the first item could be carved out from the rest

of the extent shown in the first item for partition among the co-sharers herein. In respect of item Nos. 2, 4, 6, 11, 12 and 14, the first appellate

Court allotted one-ninth share in favour of the plaintiffs virtually on the finding that the said Ismail Sahib and his two other brothers had one share

each and out of the one-third share of Ismail Sahib, the plaintiffs were allotted one-third share, which amounts to one-ninth share in the total extent

of those items, however, without giving a finding that whether the remaining extent could be segregated from the extent of one-third share which

belonged to Abdul Sahib, which has to be partitioned among the co-sharers. There is no knowing of the fact as to how in the absence of the third

parties who are in occupation of part of the item Nos. 1,2,4,6,11,12 and 14, the partition among the co-sharers herein could be effected. The

parties should satisfy the trial Court by adducing additional evidence, if at all they do have one to highlight that Ismail Sahib during his life time was

in possession and enjoyment of his share by metes and bound and if such evidence is available, then there would be no necessity for impleading the

third parties. For enabling them to adduce such evidence, the Court is expected to appoint an advocate Commissioner to visit the suit property and

measure the same with the help of a surveyor and also with reference to the revenue records and note down the physical features and submit a

report. The trial Court shall do well to see that the matter is disposed of within a period of six months from the date of receipt of a copy of ''his

order.

Both parties shall appear before the trial Court on 9.11.2012.

Accordingly, this second appeal is disposed of. However, there shall be no order as to costs.