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Petitioner: ABOOBUCKER VS Respondent: SAHIBKHATOON
P
P. L. D. 1950 Sind 152
Before Thadani and Constantine. JJ.
ABOOBUCKER and others‑Appellants
Versus
SAHIBKHATOON and others‑Respondents
Regular First Appeal No. 24 of 1943, decided on 16th October 1947.
(a) Limitation Act. (IX of 1908)‑---Art. 144‑Adverse posses sion‑Hostile title‑Adverse possession not interrupted on Posses sor's subsequently becoming co‑sharer.
Possession originally adverse and continuously asserted as such under a hostile title is not interrupted by the mere fact that the adverse possessor becomes a co‑sharer with the heirs of owner.
A I R 1925 Sind 207 ; A f. R 1942 Mad. 106 ; A I R 1919 P C 44 ;AIR 1940 Mad. 102 ; A I R 1924 Cal. 118 ; A I R 1936 Lab. 994 ; 5 Bom. L R 674 ; (1820) 4 Bing 10 ; A I R 1918 Sind 13 ; 2 Sar 209 (P C).
(b) Civil Procedure Code (V of 1908)-----O. VI, r. ‑2‑Adverse posses, 'on in terms need not be given in pleading's‑Adverse possession is matter of evidence.
Where a plaintiff alleges hostile title and leads evidence of possession for the statutory period which, if accepted, would extinguish the title of a true owner, it is not necessary for him to plead in terms adverse possession, for whether such posses sion is adverse or not is a question of evidence and not a matter of pleading.
A I R 1.947 P C 15 ; A I R 1920 Cal. 800 ; 14 C 592 ; A I R 1917 Cal. 469 ; 7 Sar. 819 (P C); 12 C L J 459 6 C L J. 621 .ref to.
(c) Evidence Act (I of 1872)----S. 32 and 33‑S. 32 is not cont. rolled by S. 33.
Section 32, Evidence Act is not controlled by section 33.
32 C 6 and A I R 1941 Rang: 301 ref to:
Srikrishandas H. Lulls, for 'Appellants.
Dingomal Narainsingh, for Respondent.
JUDGMENT
THADANI, J.‑---This is an appeal from the decision of Lobo. J. in. Suit No. 294 of 1939, in which he decreed the plaintiff respon dents' suit for possession of the property in suit with cots and mesne profits from the date of suit. The property involved in the suit is Survey No. 26, Survey Sheet L. R. 7 situated in the Lawrence Quat, Karachi. Suit was instituted by one Haji Ramzan son of Mooso ' on November 24, 1939. Three weeks later, on December 18, 1939. Haji Ramzan died and his heirs and legal representatives were brought on the record. The de fendants in the suit are the heirs and legal representatives of one Saki Muhammad, son of Laloo, a paternal uncle of Haji Ranazan. Sakhi Muhammad so of Laloo died in 1931. The relation ship of the parties is shown in the following geneological table ''
JEEVAN | ______________________________|_______________________________ | | | Mithoo Laloo Wali Died 1903 Died 1900 Muhammad | | Died, 1901 : His | | widow ______|____________ | Chotan | | | Sahebi Bhag | | ____________________________________|___________________________________ | | | | | | | Ikramu Nazar Umed Nek Mohd. Mooso Sakhi Hyder Died Mohd. Died 1921 Died Mohd. before | or 1922 1906 | 1900 | | | | | | | | | ____________|_____________ Haji Defendant | | Ramzan (sons and Idal Ghulam (plaintiff) children) Hussain grand
The case of Haji Ramzan was that he was the owner of the property in suit having inherited it from his father Mooso Wali Muhammad, who died in 1906, and that he was in possession of the property in suit since 1906 and he collected and enjoyed the rents and profits of the property and paid all the Government and municipal dues.
Haji Ramzan alleged that Sakhi Mahomed died in very poor circumstances and left a large family without' adequate means for its support; out of pity for the widow of Sakhi Mahomed defendant No. (6), he permitted her to collect rents of certain huts standing on the property for maintaining herself and her children. Defendants Nos. 1 and 2 are the sons of Sakhi Mahomed by his first wife. Defendants Nos. 3 to 5 are the sons of defendant No. 6. Defendant 'No. 2 died during the pendency of the suit and his heirs and legal representatives were brought on the record as defendants No. 2 (a) to (i).
The defence to the suit was that Haji Ramzan was not the owner of the property in suit, and had no right to file the suit, that Sakhi Mahomed during his life‑time had acquired title to the property in suit by adverse possession; after his death in 1931 the defendant‑appellants became the owners.
On the pleadings, some 13 issues were framed, but the decision of the suit rests on the findings on the following two issues : (1) Was plaintiff Haji Ramzan the owner of the plot in, suit ? (2) Has the said plot remained in the possession and enjoy ment of the said plaintiff as alleged in para. 3 of the plaint ?
For a correct appreciation of the evidence in this case, it is necessary to refer to a custom of adoption prevailing, in the Marwari Silawata Community to which the parties belong. The remote ancestors of the parties were originally Hindus and resided in Jesulmere in the Rajputana State. They were converted to Islam 200 years ago, and after the conquest of Sind in 1842 some of the converts migrated to Karachi and other places in Sind', and retained many Hindu customs and usages including the custom of adoption.
At the stage it, is convenient to refer to the case of Usman v Assat A I R 1925 Sind 207, filed in 1913 in the then Court of the Judicial Commissioner of Sind, in which the 'Appellate Court finally dispelled the mistaken belief prevailing in the Marwari Silawata Community of Karachi that the custom of adoption was a valid custom. The two issues decided by the Appellate Court in Unman v. Assat A I R 1925 Sind 207 were (1) Whether there is a custom of adoption having the force of law among the Marwari $0awata Community in derogation of the ordinary rules of Muhammadan Law 'and 1(2) whether there is custom excluding women from inheritance and restricting widows to maintenance and inheritance having the force" of law among the Marwari Silawata Community in derogation of the ordinary rules of Muhammadan Law. The Appellate Court answered these issues in the negative affirming the finding of the trial Judge.
We have referred to the decision of the Appellate Court in Usman v. Assat A I R 1925 Sind 207 with a view to emphasising the fact that, until 1916 at any rate, when Hayward. A. J. C. gave a decision against the validity of the custom of adoption, the members of the Marwari Silawata Community recognised the custom of adoption as a valid custom, and permitted property inherited by an adopted son to be treated by him as his sole property.
The ancestor of the parties to the present suit was one Jeevan who died before 1900. He left three sons, Mithoo, Wall Muham mad and Laloo. Laloo died on 24th. June 1900. He left seven sons Karmu, Nazar Muhammad, Umed, Nek Muhammad, Mooso, Sakhi Muhammad and Hyder and two daughters. Karmu died during the life‑time of his father Laloo. Haji Ramzan who instituted the present suit was the son of Mooso. Wali Muhammad died in 1901, leaving a widow called Chotan Wali Muhammad left five im movable properties situated in Karachi including the property in suit, and the learned judge in his judgment at line 23 says "It is not denied that Mooso took possessions of them and looked after and managed them till his death in 1908.
After the death of Mooso in 1906, his son Haji Ramzan being the minor, Chotan the Widow of Wali Muhammad looked after and managed the property in suit until 1910 when she went on a pilgrimage to Mecca‑ In her absence. Nek Muhammad one of the sons‑of Lalu managed the properties for the benefit of the minor 1Iaji Ramzan. In 1910 Haji Ramzan was about 7 years old. Chotan died while she was abroad.
Mithoo, the third son of Jivan, died in 1903 leaving two daughters, `Sahibi and Bhaghi. It appears that in 1902, Mithoo made a Will. Before his death he had adopted Nazar Muhammad, another son. of Laloo. The adoption of Mooso by Wali 'Muhammad and the adoption of Nazar Muhammad Mithoo are referred to in an application for mutation of names made in 1929 by Umed, Sakhi Muhammad and Hyder, three sons of Laloo. It is significant that the properties mentioned in the will of Laloo are only his self acquired properties, 'and the will contains' the statement; that only four of the surviving sons of Laloo were interested therein, Karim having died during Laloo's life‑time, Nazar Muhammad having been adopted by Mithoo, and Mooso by Wali Muhammad.
Nek Muhammad, who was looking after the property in suit from 1910 did its 1921 or 1922. Sakhi Muhammad died in 1931. It is common ground that but for the adoption of Mooso by Wall 'Muhammad th of the property in suit, upon Wall Muhammad's death, would haw devolved on Mithoo add the remaining th on Chotan, Wali 'Muhammad's. widow. It is also Common ground that: but for the adoption of Mooso. by Wall Muhammad, Mooso as the natural son of, Laloo could have become a co‑sharer in the property in suit upon the death of Mithoo in 1903.
Haji Ramzan's case in the plaint was that his father Mooso was the owner of the property, and that on his death in 1906, he became the owner, that his father Mooso, until 1906, and he himself after 1906, were in possession of the property in suit in their own right and to the exclusion of all the heirs of Wali Muhammad and the brothers of Mooso. Haji Ramzan, in other wards, asserted exclusive title derived from his father Mooso and claimed to be in possession of the property An. suit until shortly before the suit, Mooso having been in possession of the property, from 1901 to 1906.
The learned trial judge has found that the possession of Mooso in 1901 of the property in suit, coupled with assertion of an hostile by virtue of his adoption, Chotan and Mithoo in 1901, and that as remain in possession of the property in suit froth asserting his hostile title, his adverse possession by reason merely of the fact that in 1903, upon the death of Mithoo, Mooso became a co-sharer of the property. The learned judge has also found that from 1906 to 1937 or 1938, Hail Ramzan after the death of Mooso asserted hostile title and remained in possession of the property through his adoptive mother Chotan from 1906 to 1910, and from 1910 until he attained majority in 1922 or 1923, he asserted hostile title to and was in possession of the property through his paternal uncle Nek Muhammad and after 1922 or 1923 Haji Ramzan was in possession of the property personally continuing to assert his hostile title. Whether Mooso's hostile title was well founded or not is for the purpose of a decision in this case wholly immaterial. The learned Judge has found that the assertion of the hostile title by Mooso from 1901‑1906 was not challenged by anybody Indeed, Mithoo in his will made in 1902, a year after. Wali Muhammad's death, did not treat any of the properties left by Wali Muhammad as his own. On the contrary, he recognised Mooso's adoption by Wali Muhammad a valid adoption ; Mithoo himself by his will in 1902 adopted Nazar Muhammad.
Mr. Lulla for the Appellants contends that assuming Mooso took possession of Wali Muhammad's properties in 1901 asserting an hostile title by virtue of the alleged adoption, nevertheless in 1903, upon the death of Mithoo, the earlier possession of Mooso was merged into possession of a to‑sharer. Now it may be conceded that if Mooso had not taken possession of the property in suit in 1901, in pursuance of the alleged adoption, his possession of the property in suit in 1903 upon the death of Mithoo, would have been the possession of a co‑sharer. But it had beep found by the learned judge, a finding with which we agree, that Mooso was in possession of the property in suit 'in 1901, asserting his hostile title. The question for consideration is whether this adverse possession of Mooso which began in 1901, became in fact not as a matter of law, a co‑sharer's possession In 1903 upon the death of Mithoo The finding of the learned trial Judge is in effect that Mooso's possession of the property in suit up to 1906 when be died wits not the possession of a co‑sharer, anal that after lie death of Mooso, the possession of Haji Ramzan continued to be adverse land not that of a co‑sharer.
Mr. Lulla, however, contends that under the personal law applicable to the parties, if adverse possession is succeeded by a co‑sharer's possession in the same property the first possession is automatically interrupted by reason of the succession and the posses sion then becomes a co‑sharer's possession. In support of this contention. Mr. Lulla has relied upon the case of T. Sriraivasa Rao v. Annandhanam Seshacharlu 198 I C 169 ; A I R 1942 Mad. 106. In the case the argument based upon proved or admitted facts was this. Long before succession had opened, the property was gifted by one Janakibai to defendant No. 1 in that suit and from the date of gift, defendant No. 1 was dealing with the property in her own right, and when Janakibai died defendant No. 1 did not take the property as her heir, but continued to hold it adversely to the estate, and as no suit had been filed within twelve years from the date of suit, she acquired title thereto by adverse possession after the lapse of twelve years. This argument was sought to be supported by the decision of the Privy Council in Varada Pillai v. Jeevaratnammal A I R 1919 P C 44 and a decision of the Madras High Court in Alagiri . Chetty v. Muthusami Chetty A I R 1940 Mad. 102 Venkataramana Rao J., however, did not accept the argument and observed.
"On the death of Janakibai the property vested in defendant No. 1 by right of inheritance. Under the Hindu Law, succession cannot remain in abeyance and whether the heir at law wills or not the property will vest in him. Before the title to the suit property was perfected by adverse possession by the defendant No. 1. the property vested in her. The legal consequence of that vesting is that adverse possession which was running against the owner came to end. Defendant No. 1 became the owner sad adverse possession could not run against herself."
Venkataramana Rao, J. then proceeded to distinguish the case of Varada Pillai v, Jeevaratnamrnal A I R 1919 P. C. 44.
We do not think the salient fact before us can be distin guished from the salient fact present in the case of Varada Pillai v. Jeevaratuammal ,A I R 1919 F C. 44 Here it is plain that during the lifatime of Mitnoo, Moosos possession was adverse not only to Mithoo but also to Chotan, the widow of Wali Muhammad. There is no reason to suppose that when on the death of Mithoo in 1903 Mooso became entitled to a share in the property, the character of his possession from 1901,‑1903 with? regard to the one fourth share of Chotan or the three‑fourths share of Mithoo was changed ; and as the possession of Mooso from 1901 was adverse to Mithoo and Chotan, the mere fact that upon the death of Mithoo, Mooso became a co‑sharer with the heirs of Mithoo and Laloo is not sufficient to interrupt the original adverse possession if, in fact, as we hold Mooso continued to assert his 'hostile title. We think the law laid down in Varada Pillai v. jeevaratnammal A I R 1919 P. C. 44, is applicable to the facts before us.
In Panraj Mohan Rai v. Bipin Behari Chakladar A I R 1924 Cal. 118, the legal position arising out of entry and assertion of hostile title was stated :n these terms
"The possession of a person who enters into possession originally as co owner can be adverse if there be an ouster of the other co‑owners. If so, the possession of a person who originally entered not as a co‑owner, but subsequently became a proprietor and continued to assert hostile title and exercise possession to the exclusion of the other co‑owners cannot be said to have ceased to be adverse."
At p. 122, the learned judge observed
" With regard to the second ground it is no doubt true that the possession of a co‑owner is not ordinarily adverse to the other co‑owners; and Bhrigu's possession after he became a co owner, would not have been adverse, were if not for the fact that lie continued to hold the land after he became a co‑owner in the assertion of the same hostile title as he had set up before he became a co‑owner."
In Ude singh v. Chittar A I R 1936 Lah. 994 ; Jai Lal, J. on appeal from the decision of a District judge who had held that the descendants of one Kishan Chand were not solely entitled to the estate of Mst. Barwalo, that they had not estab lished title by adverse possession formulated the question for his decision in these terms.
" Whether the descendants of Kishen Chand have been holding the land in dispute adversely to the descendants of Ram Saran and Bishen Chand for more than twelve years ? "
The learned judge held
Assuming that the possession of the descendants of Kishen Chand during the life‑time of Mst. Barwalo was with her per mission‑a matter` on which there is considerable doubt and which I refrain from deciding‑it is obvious that when Mst, Barwalo died in 1906 the descendants of Ram Saran, Bishen Chand and Kishen Chand respectively became entitled in equal shares to the property left by her. The descendants of Kishen Chand were already in possession of the entire property. It cannot, therefore, be asserted that from the date of the death of Mst. Barwalo they held, the property as co‑sharers on behalf of Ram. Saran and Bishen Chand. It is not even alleged, much less proved, that Ram Saran and Dishen Chand even permitted them to keep in their possession their ,respective shares. The position in 1906 was this, that though the property was in actual possession of Kishen Chand's descendants, the descendants of Ram Saran and Bishen Chand also were entitled to share in it, but it cannot be said that Kishen Cband s heirs held the property as co‑sharers on behalf of the descendants of Ram Saran and Bishen Chand. The rule, therefore, that possession of one co‑sharer must be deemed to be permissive and ‑ on behalf of the other co‑sharers, has no application to the facts of this case. The case appears to he analogous to possession by one heir of a deceased Muhammad,. who has ‑ died leaving a number, of heirs ; in such a case the possession of the heir, who is in possession of the property of the deceased, cannot be held to be in a representative capacity, but must be deemed to be in his own right anti: .the other heirs must come to Court within the prescribed time in order ‑to succeed in getting possession ‑of their shares. They cannot succeed merely by alleging that one heir who is' in, possession of. the estate, was in such possession in a representative capacity they must prove the representative nature of possession.
This, we think, is in conformity with the decision of the Privy Council in Varada Pillai v. Jeeoaratnammal A I R 1919 P. C. 44, and of the Division Bench of the Calcutta High Court in Pankaj Mohan Rai v. Bipin Behari. Chakladar A I R 1924 Cal. 118.
It was next, argued by Mr. Lulla that a mistake of law made by Chotan and Mithoo in the matter of succession to the estate of Wali Muhammad in 1901, and thereafter the same mistake of law repeated by the sons of Laloo on the death of Mithoo in 1903 would not permit possession of Mooso in 1901 to run adversely against Mithoo and Chotan in the first instance, and thereafter to run adversely against the sons of Laloo on the death of Mithoo in 1903. This argument was considered by Sir Lawrence Jenkins, C. J. in Purshotat Krishnaji v. Sagaji Malji & Co., 5 Born. L R 674. in which he observed (p. 676)
" Durgan's mortgage was voidable in the absence of justifying circumstances, and as between Godaji and the plaintiff's, it was treated as having come to an end, so that for the future Godaji held the property as mortgagee from the plaintiffs and his possession must be attributed to a right derived from them for, if has been found as a fact that Rau was aware of what was being done and acquiesced in it. Though, therefore, Godaji's possession in its inception was `not by virtue of a right derived from the plaintiffs, still, on the facts found, his possession was from 22nd June 1882, under colour of a right derived from the plaintiffs and so adverse to Rau and that to her knowledge. It may be that Godaji thus took possession under a mistake common to all 'as to Rau's rights, but. that did not make the possession any the less adverse to Rau ; Cholmondely v: K. Clinton (1820) 4 Bing 10.
Any title that Rau may have had, thus became extinguished and as against toe mortgagee Godaji, and anyone claiming under him the right to redeem the property is in the plaintiffs. The decree of the lower Appellate Court must, therefore, be confirmed with costs.
We wish to emphasise the observation of Jenkin, C. J. "for it has been as a fact that Rau was aware of what was being done and acquiesced in it," as it has a direct bearing on the facts of this case.
The learned trial judge has found as a fact that Mithoo and Chotan knew what was being done by Mooso on the death of Wali‑Muhammad and acquiesced in it and upon the death of Mithoo in 1903 the two daughters of Mithoo and the heirs of Laloo knew that Mooso in 1901 had taken possession of the property in suit asserting and hostile title and like Mithoo and Chotan acquiesced in it.
When Mr. Lulla realised the significance of the finding of Lobo, J. in this behalf, he endeavoured to argue that the evidence does not establish that Mooso ever took possession of the property in suit on the death of Wali Muhammad in 1901, that the evidence does not establish the fact that after the death of Mooso in 1906 Chotan took possession of the property and was in possession till 1910, or that from 1910 to 1922 or 1923, the property was in possession of Nek Muhammad for the benefit of Haji Ramzan, who was until 122' or 1923 a minor. Mr. Lulla attempted to argue that the evidence on the contrary shows that Sakhi Muham mad, a brother of Mooso, was in possession of the property in suit from 1901 to 1931 in his own right.
We have carefully examined the evidence in the case and have come to the conclusion that the learned judge's appreciation of the evidence is amply justified and that Mr. Lulla's contention is not supported by the evidence on the record.
With regard to the evidence which has been taken into consideration by the learned judge on the question of adverse possession by Haji Ramzan, it was contended by Mr. Lulla that as Haji Ramzan failed to establish his title, there being no plea of adverse possession raised in the plaint, no amount of evidence led in the case c3uld have been considered by the learned judge. In support .of his contention, Mr. Lulla has relied upon the decision of the Court of the Judicial Commissioner of Sind in Ramchand Gurddsmal v. Gobindram Gurdasmal A I R 1918 Sind 13. But from the judgment of Fawcet, A. J. C. it is clear that the learned Judge there was dealing with a case which has no bearing on the facts before us. Fawcet, A. J. C. referred to the case of Eshenchunder Singh v. Shamachurn Bhutto 11 M.I.A. 7 in which their Lordships of the Privy Council had observed that:
"the determination in a cause should be founded upon a case either to be found in the pleadings or involved in, or consistent with, the case thereby made".
and that:
"the state of facts, and the equities and ground of relief originally alleged and pleaded by the plaintiff, are not to be departed from".
In the case before us Haji Ramzan pleaded title which was manifestly hostile to the title of Chotan and Mithoo in the first instance and asserted that his father Mooso was in possession of the property in suit in pursuance of, the hostile title. We think that where a plaintiff alleges hostile title and leads evidence of possession for the statutory period which, if accepted, would extinguish the tile of a true owner it is not necessary for him to plead in terms adverse possession, for whether such possession is adverse or not is a question of evidence and not a matter of pleading. This view, we think, is supported by a very recent decision of their Lordships of the Privy. Council in Munnalal v. Mst. Kashitai, A I R 1947 P. C 15, in which Sir John Beaumont observed at p. 456:
"Their Lordships, however, think Cat there is no room for drawing any presumption in this case since the circumstances under which the possession was assumed are known. Jartkibai on the death of her father, took possession under a claim of ‑title derived under her father's will. She failed to satisfy the Revenue. Authorities as to her title, but they accepted the fact that she was in possession and entered her name as occupier. There is nothing to show that she ever withdrew her claim to title under the will of Bahadur and that claim was plainly adverse to the title of Balwant. lf, after the death of Bahadur, the rights of the parties had been determined in a civil. suit, it might have been held that Bahadur possessed an interest, whether as co‑sharer or occupancy tenant, which he could dispose of by will or it might have been held, as the appellant contends that it would have been that Jankibai succeeded as heir…
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