Legal heirs are entitled to inherit property regardless of its ancestral or self-acquired nature, and claims of adverse possession require acknowledgment of ownership by the opposing party.

JUDGMENT :

1. This appeal filed by original defendant under Section 100 of the Code of Civil Procedure is directed against the judgment and decree passed by First Appellate Court in R.C.A. No. 139/1985, reversing the judgment and decree of dismissal of suit passed in R.C.S. No. 121/1980 and in turn decreeing the suit.

2. Parties are referred to as ‘plaintiffs’ and ‘defendant’ for the sake of convenience.

3. In order to appreciate the questions involved in this appeal it would be relevant to take note of certain admitted facts which are reproduced in brief as under:

(i) Immamsaheb had three sons, Haseen, Ibrahim and Mohiuddin. Haseen died in the year 1946, Ibrahim died in the year 1948, whereas Mohiuddin died in 1947. Ibrahim and Mohiuddin jointly purchased land survey No. 36 admeasuring 26A 21G of situated at village Malkapur, Taluka Kallam under registered sale deed dated 29^th Teer 1344 Fasli i.e. in May, 1935 from Maruti for a total consideration of Rs.500/-. They entered in the possession of the suit land as owners. Both of them were having half and divided share therein. Another suit property being Municipal house No. 89 situated at Malkapur originally belonged to their father came to the share of Ibrahim, in a partition effected between Haseen, Ibrahim and Mohiuddin. Ibrahim died issue less 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 suit properties. Since the defendants refused to effect partition of the suit property, suit bearing R.C.S. No. 121/1980 was instituted. Plaintiffs apart from seeking partition, separate possession of the suit property, also asked for mesne profits and rent of the property.

(iii) Defendants by filing written statement at Exhibit 15 denied the contents of the plaint. He, however admitted genealogy and relationship between the parties. It is however not in dispute that survey No. 36 was purchased jointly by his father and Ibrahim. It is claimed that after death of Ibrahim father of defendant became owner and possessor of the entire suit land. It is claimed about for 34 years being in enjoyment of the suit land and without interference openly and continuously and that he has become owner thereof by adverse possession. In respect of the house property it is claimed that he is residing there with his name being entered in the grampanchayat record in the year 1967. It is claimed that the plaintiff’s father left Marathwada Region long back and went to settle in Warahd i.e. Vidharba region and therefore they had no concern with the suit property.

(iv) After Trial Court framed issues, on behalf of the plaintiffs plaintiff No.1 Farid entered the witness box at Exhibit 32. Plaintiffs also examined Eknath Lomte at Exhibit 35 and Sheshrao at Exhibit 36. Defendant Mohammed Shaikh deposed at Exhibit 46. He also examined Navnath Kakde Exhibit 48 and Umar Sayad at Exhibit 49.

(v) Learned Trial Court dismissed the suit on the ground that plaintiffs have failed to prove their shares in the suit property. Plaintiffs being aggrieved by the said judgment and decree preferred R.C.A. No. 139/1985. After hearing both sides First Appellate Court passed impugned judgment and decree dated 20^th August, 1994 partly allowing the appeal holding that the plaintiffs is entitled to get 1/6th share in land and 1/9th share in the house No. 89. It was further directed to conduct an enquiry into the mesne profit of the share of the plaintiffs. Record indicates that the operative part of this judgment is corrected subsequently by First Appellate Court.

4. This Court by order dated 01/08/1995 passed in Civil Application No. 4509/1994 has directed the appellant/defendant to deposit a sum of Rs.5000/- per annum.

5. By order dated 8^th March, 2024 following substantial questions of law came to be framed by this Court.

“a) Whether Section 63 and 64 of Mohammedan Law are applicable when it is established that