Shahida Begum& Ors. vs. Md.Yaqub& Ors.

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.228 of 2007

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• 1. Shahida Begum wife of Abdul Sattar and Daughter of Late Sk. Ibrahim
• 2. Salma Begum wife of Late Md. Sharif and Daughter of Late Sk. Ibrahim, both are Resident of Road No. 15, Zakirnagar, Mango, Town-Jamshedpur, District-East Singhbhum
• 3. Sahjahan Begum @ Shablina wife of Md. Firoz and daughter of Late Sk. Ibrahim, Resident of Quarter No. 1, Paras nagar, Phapadih, District- Raipur (M.P.), at present R/o 15, Zakirnagar, Mango, Town- Jamshedpur, Singhbhum (East Singhbhum)
• 4. Smt. Nivedita Singh wife of Subhash Singh
• 5. Subhash Singh son of Late Surendar Nath Singh, both are Resident of Western half Portion of Holding No.26, Gurudwara Basti, Rani Kudar, P.O. & P.S.- Bistupur, Town- Jamshedpur, District- East Singhbhum .... .... …. Appellants

Versus

• 1. Md. Yaqub, son of Late Sk. Ibrahim
• 2. Walida
• 3. Parveen
• 4. Sammo, they are daughter of Late Sk. Ibrahim, all are Residents of Holding No.26, Gurudwara Basti, Rani Kudar, P.O. & P.S.- Bistupur, Town- Jamshedpur, District- East Singhbhum
• 5. The State of Jharkhand represented through Deputy Commissioner, Singhbhum (East) at Jamshedpur
• 6. Tata Iron and Steel Company Limited, Jamshedpur, Head Office at 24, Homi Modi Road, Street, Fort, Bombay Business Place at Bistupur P.O. & P.S.- Bistupur, Town Jamshedpur, District-Singhbhum (East) .... .... ... Respondents

CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------

For the Appellants	: Mr. L. K. Lal,<br>Advocate
	Mr. A. K. Sahani, Advocate
For Respondent<br>Nos. 1 to 5	: Mr.<br>Shashank Shekhar, Advocate
For Respondent No.6	:<br>Mr. Rajeev Anand,<br>G.A.<br>IV
For Respondent No.7	: Mr. Manish Mishra, Advocate
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Order No.24 Dated- 08.03.2018

Heard the parties.

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2. The appellants who were the defendants in the trial court and respondents in the lower appellate court have preferred this Second Appeal being aggrieved by the judgment and decree dated 24.05.2007 passed by the 2nd Additional Sessions (sic District) Judge, Jamshedpur, in Title Appeal No.41 of 2003 whereby and where under the learned lower appellate court set aside the judgment and decree passed by the trial court in Title Suit No.83 of 1998 and declared that the plaintiffs are the owners of the property described in Schedule 'A' of the plaint to the extent of their 7/10th shares of the suit property and also declared that the defendants No.1 to 3 acquired no right in the suit property beyond their share to the extent of 3/10th share in the suit property and that the sale deed executed by the defendant Nos.1 to 3 in favour of the defendant Nos.4 and 5 being beyond the extent of their share is void, illegal and inoperative and as such the plaintiffs are entitled for recovery of Khas possession in Schedule 'A' property including Schedule 'B' property to the extent of their 7/10th share and the defendants No. 4 and 5 are the monthly tenants of the plaintiffs. The defendants were also made liable to pay the arrears of rents as claimed in Schedule 'C' of the plaint by the plaintiffs.

3. The case of the plaintiffs in brief is that the Schedule 'A' land of the plaint measuring 20 ft. x 40 ft. was allotted to Sk. Ibrahim. Sk. Ibrahim had two wives. Zannatun Nisha was his first wife and Julekha Begam was his second wife. Sk. Ibrahim had three daughters through his first wife Zannatun Nisha and two sons and three daughters through his second wife Julekha Begam. The plaintiffs are the descendants of Sk. Ibrahim through his second wife and the defendant Nos. 1 to 3 are the descendants of Sk. Ibrahim through his first wife. Schedule 'B' property of the plaint is a portion of the Schedule 'A' property of the plaint and the defendant Nos. 1 to 3 have executed the sale deed in respect of the Schedule 'B' property of the plaint, in favour of the defendant No.4 vide Sale Deed No.625 executed on 17.02.1997 for a consideration of Rs. 80,000/-. It was asserted by the plaintiffs that the said sale deed executed by the defendant Nos.1 to 3 was a fraudulent one and in the recital of the said sale deed, false averment was made by the defendant Nos.1 to 3 that there was an oral partition of the property belonging to late Sk. Ibrahim and in the said partition, the Schedule 'B' property was allotted to the defendant Nos.1 to 3, though in fact there was no partition of the properties of Sk. Ibrahim. It is the further case of the plaintiffs that Sk. Ibrahim died on 24.07.1964,

his first wife died on 08.11.1943 and his second wife died on 13.05.1995. Though initially in the plaint, the plaintiffs made the pleadings that the defendant Nos.1 to 3 were not having any right, title, interest whatsoever over the Schedule 'A' property of the plaint but later on by way of amendments of the plaint, the plaintiffs pleaded that the plaintiffs are entitled to 5/6th share of Schedule 'A' property of the plaint. It is the case of the plaintiffs that the defendant No.5 was inducted as a monthly tenant by their mother Julekha Begam in respect of Schedule 'B' property of the plaint and defendant No.5 used to pay rent to Julekha Begam regularly and after the death of Julekha Begam, the defendant No.5 paid rent to the plaintiffs till the month of October 1995. But thereafter, the defendant No.5 stopped paying any rent to the plaintiffs in respect of the Schedule 'B' premises of the plaint. The plaintiffs thereafter issued notice to the defendant no. 5 through their lawyer requesting the defendant No.5 to vacate the suit Schedule 'B' premises on or before 31.03.1997 and to pay the arrears of rent. In his reply the defendant No.5 denied ever being inducted as monthly tenant in the Schedule 'B' property of the plaint and also asserted that the said property belonged to Zannatun Nisha and her daughters being the defendant Nos.1 to 3 of the suit and the defendant Nos.1 to 3 have transferred the ownership of the said premises in favour of the defendant No.4 Nivedita Singh.

4. In their written statement the defendants admitted that the Schedule 'A' property of the plaint was acquired by Sk. Ibrahim and also admitted the relationship of the defendants and plaintiffs with Sk. Ibrahim as mentioned in the plaint. They pleaded that defendant No.5 was a monthly tenant under the defendant Nos.1 to 3 in respect of Schedule 'B' premises of the plaint. They also pleaded that there was an oral partition amongst the legal heirs of the deceased SK. Ibrahim and the Schedule 'B' property of the plaint was allotted to the defendant Nos.1 to 3 in the said partition. It was also pleaded by the defendants that the defendants nos. 4 and 5 have been in possession of the suit schedule 'B' property uninterruptedly since 1969, out of which till 17.02.1997 they were in possession through defendant nos. 1 to 3 and thereafter in their own

independent right hence the defendant no. 4 and 5 have perfected their title by way of adverse possession.

5 On the basis of the rival pleadings of the parties, the learned trial court framed the six issues.

6. After taking into consideration both the oral and documentary evidences put forth by the parties, learned trial court decided the three main issues against the plaintiffs and dismissed the suit. The plaintiffsrespondents being aggrieved by the judgment of the trial court thereafter preferred appeal in the court of the learned District Judge, East Singhbhum at Jamshedpur, which was registered as Title Appeal No. 41 of 2003. The said appeal was finally heard and disposed of by the 2nd Additional District Judge, East Singhbhum at Jamshedpur. By the impugned judgment and decree, the learned lower appellate court, in view of the grounds taken in appeal, thoroughly scrutinized and discussed the facts and evidences on record in detail and framed seven issues for determination. Out of which the issue no. (iii),(iv) and (v) were the main issues which were as follows:-

(iii) Whether any oral partition took place among the legal heirs of deceased Sk. Ibrahim and eastern half portion i.e. Schedule B premises was allotted to the defendant No. 1 to 3?

(iv) Whether the defendant No. 5 was a monthly tenant of defendant No.1 to 3 or their mother?

(v) Whether the plaintiffs are entitled to the extent of their 5/6th share in schedule 'A' property and they are entitled to get recovery of possession from the defendants to the extent of their share in schedule B premises?

The lower appellate court gave his own independent finding on each of the issues. On due appraisal of the evidences and materials on record, the lower appellate court considered the fact that the defendants have not mentioned either in their plaint or in the evidence as to what was the date of oral partition and who are the legal heirs of deceased Sk. Ibrahim amongst whom there was any oral partition and there is no explanation as to what happened to the share of the said Julekha Begum-the second wife of Sk. Ibrahim in the said partition and did not accept the plea of the

defendants that the existence of the partition wall amidst Schedule 'A' property of the plaint is a proof that the western portion of the said property was allotted to the defendant Nos.1 to 3 and the eastern portion of the said wall was allotted to the plaintiffs. The learned lower appellate court also considered that the first wife of Sk. Ibrahim died much prior to the induction of the defendant no. 5 as a tenant to the suit schedule 'B' premises and the receipt of rent of the suit schedule 'B' premises by one Feroz in respect of whom there was no pleading and the fact that the defendant Nos.1 to 3 did not enter in to the witness box to examine themselves as witnesses nor they disclosed the date of induction of the defendant no. 5 by them to the suit schedule 'B' premises and did not believe that the defendant no. 5 is a tenant under the defendant no. 1 to 3 and held that the defendant no. 5 is a tenant of the plaintiffs and set aside the judgment and decree of the trial court and allowed the appeal granting the reliefs to the plaintiffs as already indicated above.

7. It is submitted by the learned counsel for the appellants that the learned lower appellate court failed to take into consideration the fact that as even the witnesses of the plaintiffs have admitted about the existence of a partition wall separating the Schedule 'B' land from the rest of the Schedule 'A' land, hence, the lower appellate court ought to have accepted the case of the defendants that the same is a proof of oral partition between the parties to the extent which has been divided by the said partition wall and having not done so, the impugned judgment and decree passed by the learned lower appellate court is perverse. It is further submitted by the learned counsel for the appellants that the defendants nos. 4 and 5 having been in possession of the suit schedule 'B' property uninterruptedly since 1969, out of which till 17.02.1997 they were in possession through defendant nos. 1 to 3 and thereafter in their own independent right hence the learned lower appellate court ought to have held that defendant no. 4 and 5 have perfected their title by way of adverse possession. It is also submitted that the learned court below failed to properly appreciate the evidence in the record that both the parties in proof of partition constructed the partition wall and the learned lower appellate court misguided itself by committing serious error in reversing the judgment and decree of the trial court and the impugned judgment and decree is not sustainable either in law or on facts hence the same be set aside.

8. Learned counsel for the respondents on the other hand submitted that the learned lower appellate court has considered the evidence in the record in its right perspective and it was further submitted by him that the existence of a partition wall between Schedule 'B' property of the plaint and the remaining portion of Schedule 'A' property of the plaint can at best be an evidence of the partition and certainly cannot be a conclusive proof of the partition by the parties and it was further submitted by him that the defendant Nos.1 to 3 being the legal heirs of the Sk. Ibrahim, were the only the competent witness to say about the oral partition as claimed by them, as between the plaintiffs and themselves, in respect of the Schedule 'A' property of the plaint. But they having not entered into the witness box without any plausible explanation, adverse inferences are to be drawn against them. Further it is submitted that no other person who is witness to the alleged oral partition between the plaintiffs and defendant Nos.1 to 3 having been examined by the defendants, the learned court below has rightly came to a conclusion that the evidence in the record is insufficient to prove any oral partition between the plaintiffs and defendants and such finding of the lower appellate Court by no stretch of imagination can be termed as perverse. Hence, it is submitted by him that this appeal being without any merit be dismissed.

9. Having heard the parties and perusing the judgments and decrees of the learned courts below, I find that learned lower appellate court has meticulously scrutinized the evidences and considered that no date of partition has been pleaded by the defendants and no share has been allotted to the second wife of Sk. Ibrahim in the alleged partition. Learned lower appellate court has discussed the documentary and oral evidences in detail and came to the finding that there was no partition by metes and bounds between the parties and the defendant no. 5 is a tenant of the plaintiffs. The said findings of the lower appellate court are based on

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thorough discussion and due consideration of the evidences and materials on record.

10. Keeping in view the settled principle of law that the possession of one co-owner is considered in law as possession of all co-owners as the possession of a co-owner is presumed to be on the basis of joint title, so long and continuous possession by itself would not constitute adverse possession. In order to constitute adverse possession, it is not enough to show that one of them is in sole possession and enjoyment of the properties. The co-owner out of possession must be proved to have had notice of assertion of hostile possession ousting him. The Hon'ble Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, held that the possession of one co-heir is considered, in law, as possession of all the co-heirs. The relevant portion of the said judgment is as under: -

"4...But it is well settled that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the nonpossessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy, 1912 AC 230 [C]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. (Emphasis Supplied)

11. It is also a settled principle of law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse, as has been reiterated by the Hon'ble Supreme of India, in paragraph -10 of the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 as under:-

"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied).

12. Learned Counsel for the appellants could not point out any specific instance of any particular evidence being not considered. The learned Counsel for the appellants also could not point out any illegality or error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial question of law to be framed and decided by this Court in exercise of second appellate jurisdiction.

13. In view of the above discussion, I do not find any infirmity or illegality in the judgment and decree of learned lower appellate court giving rise to any substantial question of law to be framed and decided by this court in exercise of its second appellate jurisdiction. This appeal is, accordingly, dismissed, but in the circumstances without any costs.

14. The lower court record called for vide order dated 22.11.2011 be sent back forthwith.

AFR/Animesh (Anil Kumar Choudhary, J.)