High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 357 OF 1994WITH CIVIL APPLICATION NO. 11798 OF 20231.Mohammed s/o Mohiuddin Shaikh(Since Deceased) Through L.R’s.1A.Jamadar s/o Mohammad ShaikhAge : 65 years, Occ : Agril.,R/o. Malkapur, Tq. Kallam,Dist. Osmanabad.1B.Hajubhai Mohammad ShaikhAge : 62 years, Occ : Agril.,R/o. Malkapur, Tq. Kallam,Dist. Osmanabad.1C.Shahibaba Mohammad Shaikh(Since deceased) Through LR’s.1-C1.Rabana W/o Shahibaba ShaikhAge : 45 years, Occ : Household,1-C2.Yashin s/o Shahibaba Shaikh,Age : 28 years, Occ : Agri,1-C3.Yosin Shahibaba Shaikh,Age : 22 years, Occ : Agri,1-C4.Hina Shahibaba Shaikh,Age : 24 years, Occ : Household,1-C5.Aliyum Shahibaba Shaikh,Age : 32 years, Occ : Household,1-C1 to 1-C5 R/o Malkapur,Post Yermala, Tq. Kallam, Dist. Osmanabad. D.Khatunbee Habu Sayyed,Age : 54 years, Occ : Household,R/o. Bhatisinrpura, Tq. Kallam,Dist. Osmanabad.E.Sugrabee Dagadu Shaikh,sa357.1994.odt1 of 13 Age : 52 years, Occ : Household,R/o. Dhekri, Tq. Tuljapur,Dist. Osmanabad.F.Shakharbee Yaquoob ShaikhAge : 50 years, Occ : Household,R/o. Dhotra, Tq. Barshi,Dist. Solapur.G.Laylabbee Ramzan Sayyed,Age : 47 years, Occ : Household,R/o. Malkapur, Tq. Kallam,Dist. Osmanabad.… APPELLANTSVERSUS1.Farid s/o Haseen Shaikh(Since Deceased) Through LR’s1A.Doulatbi w/o Khajabhai PathanAge : 71 years, Occ : Household,R/o. Shabbir Compound, Boysar,Kajupada, Gamadevi Road,Kandivali (E), Mumbai – 400 101.1B.Dagdibi w/o Rajuddin SayyedAge : 66 years, Occ : Household,R/o. Datta Nagar, Khandali,Tq. Malsiras, Dist. Solapur2.Fakir s/o Hasan Shaikh(Since Deceased) Through LR’s2A.Rashid Fakir ShaikhAge : 70 years, Occu : Labour,R/o Dyes Plot, Near Noorani Masjid,Gultekdi, Pune.2B.Bande Nawaz Fakir Shaikh,Age : 65 years, Occu : Labour,R/o Dyes Plot, Near Noorani Masjid,Gultekdi, Pune.2C.Chand Fakir Shaikh,sa357.1994.odt2 of 13 Age : 60 years, Occu : Labour,R/o Dyes Plot, Near Noorani Masjid,Gultekdi, Pue.… RESPONDENTSMr. R. N. Dhorde, Senior Advocate a/w Mr. Sanjay S. Dudhane i/b Mr. V. R. Dhorde, Advocate for the appellantsMr. P. R. Katneshwarkar, Senior Advocate i/b Mr. Rahil Kazi, Advocate for the respondents CORAM : R. M. JOSHI, J.RESERVED ON :12th FEBRUARY, 2025PRONOUNCED ON :17th FEBRUARY, 2025JUDGMENT :-1.This appeal filed by original defendant under Section 100 ofthe Code of Civil Procedure is directed against the judgment and decreepassed by First Appellate Court in R.C.A. No. 139/1985, reversing thejudgment and decree of dismissal of suit passed in R.C.S. No. 121/1980and in turn decreeing the suit.2.Parties are referred to as ‘plaintiffs’ and ‘defendant’ for the sake ofconvenience.3.In order to appreciate the questions involved in this appeal itwould be relevant to take note of certain admitted facts which arereproduced in brief as under:(i)Immamsaheb had three sons, Haseen, Ibrahim andMohiuddin. Haseen died in the year 1946, Ibrahim died in the year 1948,whereas Mohiuddin died in 1947. Ibrahim and Mohiuddin jointlypurchased land survey No. 36 admeasuring 26A 21G of situated atsa357.1994.odt3 of 13 village Malkapur, Taluka Kallam under registered sale deed dated 29thTeer 1344 Fasli i.e. in May, 1935 from Maruti for a total consideration ofRs.500/-. They entered in the possession of the suit land as owners.Both of them were having half and divided share therein. Another suitproperty being Municipal house No. 89 situated at Malkapur originallybelonged to their father came to the share of Ibrahim, in a partitioneffected between Haseen, Ibrahim and Mohiuddin. Ibrahim died issueless and left plaintiffs and defendant as his legal heirs.(ii)Apart from above admitted facts, as per claim of plaintiffs,both sides inherited 1/3rd share each and became co-owners of the suitproperties. Since the defendants refused to effect partition of the suitproperty, suit bearing R.C.S. No. 121/1980 was instituted. Plaintiffs apartfrom seeking partition, separate possession of the suit property, alsoasked for mesne profits and rent of the property.(iii)Defendants by filing written statement at Exhibit 15 deniedthe contents of the plaint. He, however admitted genealogy andrelationship between the parties. It is however not in dispute that surveyNo. 36 was purchased jointly by his father and Ibrahim. It is claimed thatafter death of Ibrahim father of defendant became owner and possessorof the entire suit land. It is claimed about for 34 years being inenjoyment of the suit land and without interference openly andcontinuously and that he has become owner thereof by adversesa357.1994.odt4 of 13 possession. In respect of the house property it is claimed that he isresiding there with his name being entered in the grampanchayat recordin the year 1967. It is claimed that the plaintiff’s father left MarathwadaRegion long back and went to settle in Warahd i.e. Vidharba region andtherefore they had no concern with the suit property.(iv)After Trial Court framed issues, on behalf of the plaintiffsplaintiff No.1 Farid entered the witness box at Exhibit 32. Plaintiffs alsoexamined Eknath Lomte at Exhibit 35 and Sheshrao at Exhibit 36.Defendant Mohammed Shaikh deposed at Exhibit 46. He also examinedNavnath Kakde Exhibit 48 and Umar Sayad at Exhibit 49.(v)Learned Trial Court dismissed the suit on the ground thatplaintiffs have failed to prove their shares in the suit property. Plaintiffsbeing aggrieved by the said judgment and decree preferred R.C.A. No.139/1985. After hearing both sides First Appellate Court passedimpugned judgment and decree dated 20th August, 1994 partly allowingthe appeal holding that the plaintiffs is entitled to get 1/6th share in landand 1/9th share in the house No. 89. It was further directed to conductan enquiry into the mesne profit of the share of the plaintiffs. Recordindicates that the operative part of this judgment is correctedsubsequently by First Appellate Court.4.This Court by order dated 01/08/1995 passed in CivilApplication No. 4509/1994 has directed the appellant/defendant tosa357.1994.odt5 of 13 deposit a sum of Rs.5000/- per annum.5.By order dated 8th March, 2024 following substantialquestions of law came to be framed by this Court.“a) Whether Section 63 and 64 of Mohammedan Law are applicablewhen it is established that the disputed property is not ancestralproperty?b) Whether the learned appellate court erred in granting share inthe suit property to original plaintiffs despite that they did not haveany share in the property ?c) Whether the suit is barred by Article 144 of Limitation Act andthat whether the learned appellate court failed to consider Section708 of Mohammedan law in Chapter -14 Part-II ?”6.Learned senior counsel for the defendant/ appellant submitsthat the First Appellate Court has committed error by not appreciatingthe pleadings and evidence on record properly. It is his submission thatthe First Appellate Court ought to have passed reasoned order whilereversing the judgment and decree passed by the Trial Court. Accordingto him as held in the case of Santosh Hazari vs Purushottam Tiwari(Dead) By Lrs, AIR 2001 SUPREME COURT 965. The judgment of theFirst Appellate Court must reflect application of mind and reappreciationof evidence is done it must be discussed accordingly. By drawingattention of the Court paragraph 25 of the judgment it is submitted thatthe judgment passed by the First Appellate Court is without anyreasoning. It is his contention that the First Appellate Court had failed totake into consideration the fact that for almost 34 years, no action wastaken by the plaintiffs to stake their claim in respect of the suit propertysa357.1994.odt6 of 13 and as such it amounts to ouster of plaintiffs from the suit property andresultantly the plaintiffs would not be entitled to seek relief of partition.In support of his submission he placed reliance on the judgment in caseof Vasantha (dead) Through Legal Representative Versus RajalakshmiAlias Rajam (dead) Through Legal Representatives (2024) 5 SCC 282and Wuntakal Yalpi Chenabasavana Gowd Vs. Rao Bahadur Y.Mahabaleshwarappa and another, AIR 1994 SC 337.7.Learned senior counsel appearing on behalf of therespondents/plaintiffs submits that admittedly suit property waspurchased by Ibrahim and Mohiuddin. Mohiuddin died in 1947 andtherefore there is no substance in the contention of the defendant thatupon death of Ibrhaim in year 1948, Mohiuddin has become the soleowner of the suit property. It is his submission that in any case there isno dispute about the fact that Ibrahim had one half share in the suitproperty i.e. the land survey No. 36 and it would devolve upon his heirsand the plaintiffs and defendant being legal heirs of Ibrahim are entitledto receive the share therein. It is his submission by relying upon thejudgment of Division Bench of Jammu and Kashmir High Court in case ofAhmad Dar Versus Mt. Mukhti, AIR 1951 J & K 21 to canvass that afterthe death of Ibrahim siince several heirs are left behind by him, all ofthem shall become co-owners and property is held on behalf of all bydefendant. In such circumstances the claim of defendant of becoming ofowner of the suit property by adverse possession cannot sustain. Hesa357.1994.odt7 of 13 further argues that as rightly observed by the First Appellate Court theplea of ouster has not even been pleaded by the defendant and as suchthere was no question of applying in the said principle to the presentcase.8.At this stage it is necessary to take note of the fact that theinitially the First Appellee Court passed judgment and decree withfollowing operative part;“i)The appeal is partly allowed. The impugned Judgment anddecree is hereby set aside and instead it has been ordered anddecreed that the plaintiff 1/ appellant is entitled to get 1/6th sharein the field sy.No. 36 admeasuring 26A 21G of village Malkapur,Taluka Kallam.ii)The plaintiff is also held entitled to get 1/9th share in houseNo.89 of village Malkapur, Taluka Kallam, more particularlydescribed in clause 2 of the prayer in the plaint and also shown byred in plaint map. (This description shall form of the decree).iii)The preliminary decree for partition should be drawn up.iv)The copy of the decree be sent to the Collector for effectingthe actual partition of Sy.No. 36 of Malkapur and putting theplaintiff 1 in possession of his 1/3rd share.v)So far as the house property i.e. House No. 89 is concerned,the Commissioner be appointed for preparing as scheme forpartition of that house.vi)On receipt of the report of the commissioner and hearing theobjections, if any, raised by the parties, final decree in respect ofthe partition and separate possession of the suit house shall bepassed.vii)The enquiry into the Mesne Profits of the share of the plaintiff1 be held, from the date of suit till the date of possession ofplaintiff 1’s share in the suit property.viii)The respondent 1 to bear is own costs and pay those ofsa357.1994.odt8 of 13 appellant/ plaintiff 1 through-out.”9.Admittedly, since there was error in operative part andapplication was moved for correction thereof and accordingly the FirstAppellate Court Corrected the operative part of the judgment whichreads thus:“Order1.It is directed that in para II of the operative order ofjudgment Exh.19 and decree at Exh. 20 in RCA No. 139/85 dated20/8/94 the words and figures about share of “1/9th” in house No.89 be corrected as “1/3rd” share.2.It is also directed that in para IV of the operative order of thejudgment and decree which pertains to partition of Sy.No. 36, thewords and figures about share i.e., “1/3rd share be corrected as“1/6th” share.3.After removal of clerical mistake as aforesaid the originalRecord and Proceeding of RCA No. 139/85 along with RCS No.121/80 be submitted to the Registrar, Hon’ble High Court ofJudicature at Bombay Bench at Auarangabad.”10.In order to appreciate the submission of the leaned counselappearing or the rival parties it would be necessary to take intoconsideration the facts which are not in dispute. So far as the suitproperty survey No. 36 is concerned, admittedly the said property ispurchased by Ibrahim and Mohiuddin jointly. The house property belongto Immamsaheb i.e. father of Mohiuddin, Ibrahim and Haseen. Plaintiffsare sons of Hassen. Whereas the defendant is Mohiuddin’s son. Haseen,Mohiuddin and Ibrahim died in year 1946, 1947 and 1948 respectively.11.As far as house property is concerned, there is no dispute ofsa357.1994.odt9 of 13 the fact that it was owned by father of these three brothers and it waspartitioned between them. Since the the land survey no. 36 was jointlypurchased by Ibrahim and Mohiuddin and as Mohiuddin pre deceasedIbrahim, this Court finds no substance in the contention of the defendantthat on death of Ibrahim defendant’s father became sole owner andpossessor of the said land. In any case Ibrahim is mohammedan and thelaw of inheritance applicable to a person professing muslim religion,makes his heirs entitle to succeed to his estate. There is no disputeabout the fact that the plaintiffs and defendant are legal heirs of Ibrahimwho only can inherit the suit property. Thus conclusion that bothplaintiffs and defendant are having 1/3rd share each in the suit propertyis inevitable. It is thus clear that when defendant claims possession ofsuit land and house, it must be considered to be for an on behalf of allco-owners. In such circumstances, it becomes immaterial as to the timefor which defendant was holding the said land on behalf of all. Perusal ofthe written statement indicates that there was no specific plea of ousterraised by the defendant against the plaintiffs. In absence of any suchspecific plea is raised, it was not open for the Trial Court to consider thesame for the purpose of dismissing the suit.12.With regard to the plea of adverse possession, it is pertinentto note that in the written statement defendant has disputed theownership of plaintiffs over the suit property. Unless the ownership of theplaintiffs is accepted by defendant over the suit property, it would not besa357.1994.odt10 of 13 open for him to raise plea of acquisition of title by adverse possession. Toclaim title on plea adverse possession, acceptance of title/ownership ofother side is sine qua non. Since the same is challenged by defendant,his plea for adverse possession must fail.13.Though substantial question of law is framed as recordedabove, about the suit property being not ancestral property, inconsidered view of this Court material on record shows that suit land isself acquired property of Ibrahim, whereas house is ancestral one. As perlaw of inheritance applicable to Mohammedans, each and every propertythat remains within the ownership of an individual can be inherited by hissuccessor and irrespective of nature of property ancestral or selfacquired, it can be inherited by them. Thus, no substantial question oflaw to that extent is involved in this appeal.14.The point of limitation raised by defendant needs to bedecided on the basis of pleadings and evidence led by the parties.Plaintiffs specifically pleaded about they seeking partition of the suitproperty from the defendant on 17/03/1980 and since it was refused bythe defendant, cause of action accrued for them to file suit for partition.Plaintiff No.1 by entering into witness box has deposed about the refusalby defendant to partition the suit property. There is no contrary evidencebrought on record by the defendant. Thus, in the facts of the case, suit isnot barred by limitation.sa357.1994.odt11 of 13 15.Now coming to the issue sought to be raised by the learnedsenior counsel for defendant about the judgment of First Appellate Courtnot being reasoned one, the judgment in it’s entirety needs to be seenrather than to consider the paragraphs of the judgment in isolation. TheHon’ble Supreme Court in case of Santosh Hazari (supra) has held thatorder while reversing the judgment of Trial Court should be reasoned andnot cryptic. 16.This Court, therefore, is required to see whether thejudgment impugned passed by First Appellate Court satisfies the saidtest. Perusal of entire judgment demonstrates more than sufficiently thatthe Appellate Court after carefully considering pleadings and evidence onrecord, rendered findings of fact. In no case, the order impugned can notbe termed as cryptic one. 17.As a result of the above discussion a substantial questions oflaw framed herein above deserve to be answered in negative. Defendanthas failed to make out any case for causing interference in the impugnedjudgment and decree for want of any perversity in the findings recordedby the First Appellate Court. Hence, appeal stands dismissed. Pendingapplication, if any, stands disposed of.( R. M. JOSHI, J. )Later on18.After pronouncement of the judgment, learned senior counselsa357.1994.odt12 of 13
Legal Reasoning
for the appellants seeks continuation of order dated 21/09/2023.19.Learned senior counsel for the respondents opposes the saidrequest.20.Since the interim relief is enforce for more than one year, thesame is continued for a period of six (06) weeks from today. ( R. M. JOSHI, J. )sspsa357.1994.odt13 of 13