Zahuruddin and Others vs Md. Jan

U.N. Sinha, J.—This appeal has been filed by the defendants and the plaintiff has filed a cross-objection. The appeal and the cross-objection are both governed by this judgment. They arise out of a suit instituted by the plaintiff for recovery of possession and partition of the plaintiff''s share in the disputed properties. The disputed properties were described in five schedules of the plaint and the appeal is concerned with the properties mentioned in schedules 3 and 4 only. The scope of the cross-objection will be dealt with in due course.

In order to appreciate the plaintiffs case with respect to schedules 3 and 4, a part of the genealogy of the family will have to be stated. One Ahmad Ali had four daughters, namely, Bakridan, Wajan, Rashidan and Kasidan. Bakridan had a daughter named Faridan. Plaintiff is the husband of Faridan. Farjdan had a daughter named Mosst. Soghra who is defendant no. 3. Plaintiff had another brother named Zahuruddin who is defendant no. 1 and whose wife Mosst. Sabujan is defendant no. 2. Zahuruddin''s issues are defendants Nos. 4 to 7 and defendant No. 5 is the husband of Mosst Soghra defendant no. 3.

It is said that the four daughters of Ahmad Ali had executed a deed of gift dated the 13th September, 1930 to Faridan and Sabujan putting the donees in possession of the gifted property. According to the plaintiff''s case, Faridan had been given certain properties exclusively and those are included in Schedule 3 of the plaint, and schedule 4 contains the lands given to her jointly with Sabujan. On these allegations, the plaintiff claimed three fourths share in Schedule 3 properties and three-eighths share in schedule 4 properties. The substance of the contesting defendants case was as follows: The gift said to have been executed by the daughters of Ahmad Ali was accepted as valid but it was alleged that before her death Faridan has gifted away her lands to her daughter Soghra. Thus, it was contended that the plaintiff was not entitled to partition of the lands given in schedules 3 and 4 of the plaint

The court of appeal below has held that the oral gift by Faridan to Soghra relied upon by the defendants was not proved. It has been held that with respect to the gift of 1930. Faridan and Sabujan had half and half share in schedule 4 properties. It has further been held that Faridan was the owner of the properties mentioned in Schedule 3. It has been held that the plaintiff has not proved possession of the lands of schedules 3 and 4 of the plaint and he was out of possession since the death of Faridan, 16 or 17 years before the institution of the suit. The court of appeal below has further held that the defendants have failed to prove their case of adverse possession as they have not proved ouster of the other tenants-in-common.

Learned counsel for the appellants has raised two points. It is contended that under the deed of gift of the year 1930 Most Sabujan had been given three-fourths share of the gifted properties and Mosst. Faridan the remaining one fourth share It is contended that the decree given to the plaintiff with respect to the properties in dispute is more than what he is legitimately entitled. It is then argued that the family was governed by Muhammadan Law & the conclusion of the court of appeal below I hat the defendants had to prove their title by adverse possession in the sense of ouster of the other tenants-in-common is an erroneous conclusion and on the finding that the plaintiff was not in possession for more than twelve years the plaintiff''s suit should have failed

Upon the first point urged by learned counsel the deed of gift (Exhibit 1) was read out in Court and it is clear that the contention of the learned counsel is not well founded, as under this document the properties in schedule 4 were undoubtedly given to Sabujan and Faridan in equal shares Upon the second point it is well settled that as between co-owners there can be no adverse possession by one co-owner, unless there has been a denial of title and ouster to the knowledge of the other. Learned counsel for the appellants has relied upon the case of T.P.R. Palania Pillai (died) and Others Vs. Amjath Ibrahim Rowther and Another, ; and has contended that in the case of tenants-in-common this view cannot be applied. But so far as this Court is concerned the law was laid down in Dipnarain Rai and Others Vs. Pundeo Rai and Others, and it was followed in the case of Sunder Ahir and Others Vs. Mt. Phuljharia and Another, . Therefore, it is clear that in the absence of proof of ouster, the plaintiff''s title could not have been defeated in this suit In paragraph 22 of the judgment of the court of appeal below, the learned Judge proceeded on the footing that Soghra was in possession of the and left behind by her mother Faridan.

Therefore, it is difficult to hold that I the plaintiff''s title vanished by the possession of his daughter who also inherited from Faridan. In the result it must be held that there is no merit in the appeal.

So far as the cross-objection is concerned it is argued by learned counsel for respondent No. 1 that the plaintiff''s share should have been much more than what was decreed by the court of appeal below This argument is based on the fact which appears from the record that Faridan had died leaving three daughters amongst whom Soghra was one. According to the learned counsel, if Paridan had died leaving three daughters and two of them died thereafter, the share of Faridan''s husband would be three-fourths of Faridan''s properties.

There are two difficulties in the way of the learned counsel for the cross-objector. The first one is that the cross-objection does not dearly refer to the properties mentioned in schedules 3 and 4 of the plaint. The cross-objection refers to Schedules 1 (a) and 2 of the plaint. Secondly, the ground urged for enhancing the plaintiff''s share has not been specifically taken in the cross-objection.

All that the learned counsel could rely upon was the last ground which states that the judgment and decree of the court of appeal below should be modified. But, obviously, that ground relates to the objection taken in the memorandum of cross-objection with respect to schedules 1 (a) and 2 of the plaint Therefore it is not possible to accede to the contention of the learned counsel for the cross-objector to the effect that the plaintiff''s share in schedules 3 and 4 of the plaint should be enhanced The cross-objection, therefore also fails.

In the result the appeal and the cross-objection are both dismissed but under the circumstances without costs.