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ALLAHABAD HIGH COURT
PRAKASH KRISHNA, J.
Ramzan
Versus
Gafooran
F.A. 217 of 1977
Decided On : 28 September 2007
F. A. 217 Of 1977
Partition Suit - Property Dispute - Sale Deeds - Adverse Possession - Limitation Act - [PLAINTIFFS APPEAL] - [Partition Suit] - [Articles 64, 65 of the Limitation Act, 1963] - The court found that the plaintiffs were entitled to 2/3rd share in the houses detailed in schedules B and C, but their claim in respect of schedule A property was dismissed as barred by time. The defendants were claiming their title over the entire property described in Schedule A on the basis of two sale deeds executed in their favor. The court held that the possession of the contesting defendants was not of adverse possessor as they were claiming their title and possession on the basis of the sale deeds. The plea of limitation was not raised in the written statement, and the trial court's finding that the suit in respect of property described in schedule A is barred by time was held to be contrary to law. The court allowed the appeal and decreed the suit for partition of 2/3rd share of the plaintiffs in the house and land described in Schedule A property of the plaint.
Fact of the Case:
The plaintiffs filed a partition suit claiming 2/3rd share in three houses. The suit was decreed with respect to two properties and dismissed with respect to the third property. The plaintiffs appealed, arguing that the possession of the defendants did not amount to adverse possession and that the suit was not barred by time.
Finding of the Court:
The court found that the possession of the contesting defendants was not of adverse possessor as they were claiming their title and possession on the basis of the sale deeds. The plea of limitation was not raised in the written statement, and the trial court's finding that the suit in respect of property described in schedule A is barred by time was held to be contrary to law. The court allowed the appeal and decreed the suit for partition of 2/3rd share of the plaintiffs in the house and land described in Schedule A property of the plaint.
Issues: The main issues were whether the plaintiffs were entitled to 2/3rd share in the disputed property, whether the suit was barred by time, and whether the defendants had acquired title by adverse possession over the property.
Ratio Decidendi: The court held that the possession of the contesting defendants was not of adverse possessor as they were claiming their title and possession on the basis of the sale deeds. The plea of limitation was not raised in the written statement, and the trial court's finding that the suit in respect of property described in schedule A is barred by time was held to be contrary to law.
Final Decision: The court allowed the appeal and decreed the suit for partition of 2/3rd share of the plaintiffs in the house and land described in Schedule A property of the plaint.
( 2 ) THE suit was instituted on the pleas that one Khaira was a common ancestor of the plaintiffs and defendants No. 1, 8 and 9. After his death, the property was inherited by his widow Smt. Guriha. On the death of Smt. Guriha, the property was inherited by her two daughters and one son, namely, mst. Tazia Alias Zainab and Mst. Nuria and son Hussain. All these persons came in joint possession of the property left by Smt. Gurhia. Smt. Gurhia, according to the plaintiffs, had three houses described in schedules A, B, and C of the plaint. After the death of Husain (son), his widow Gafooran defendant No. 1 inherited the share of her husband.
( 3 ) THE plaintiffs are the sons of Smt. Nuria. Mst. Tazia alias Zainab had four issues out of which two issues, namely, Dadu ali alias Peer Mohd. and Chairun died is-sueless and remaining two issues, namely, mst. Mahengi and Fakir Mohd. were im-pleaded as defendants No. 8 and 9 respectively. It was further pleaded that Smt. Gafooran sold her share to one Imam Khan by means of two sale deeds and after death of Imam Khan his heirs defendants No. 2 to 7 succeeded to the property.
( 4 ) THE plaintiffs claimed 2/3rd share in the property described in schedule A. The suit was contested by the defendants by filing a separate set of written statements. The plea, as set up in the plaint, was de-nied. The defendants No. 2 to 7 who really contested the suit, pleaded that the house in suit did not belong to Khaira. They further pleaded that their father purchased the entire house described in schedule A by means of two sale deeds dated 13-12-1952 and 19-12-1959. It was further pleaded that earlier their father came in occupation of the property purchased by means of the aforesaid two sale deeds as exclusive owner and after his death, the answering defendants became the exclusive owners of the disputed property. It was further stated that they are residing in the disputed property without intervention of any body in exercise of their right of ownership.
( 5 ) ON the pleadings of the parties, following issues were framed by the Trial judge:-1. Whether the plaintiffs are co-sharers in the houses in Suit? If so the extent of their share? 2. Is the suit barred by time? 3. Is the suit barred by estoppel and acquiescence? 4. Is the suit under-valued and court fees paid is sufficient? 5. Whether defendants 1 to 7 or any of them have acquired title by adverse possession over the house in schedule A? 6. Is the suit had for non-joinder of necessary parties as alleged in para 13 of W. S. filed by defendants No. 2 to 7? 7. To what relief, if any are the plaintiffs entitled?
( 6 ) ISSUES No. 1 and 5 were decided together and it has been held that the plaintiffs are entitled to 2/3rd share in the house described in schedules B and C, but their claim in respect of schedule A property was dismissed as barred by time. It was further held that the plaintiffs have lost their share, if any, by adverse possession of defendants no. 2 to 7 who have purchased it through their father from Smt. Gafooran. Under issue No. 2 is was found that the suit is barred by time in respect of schedule A property, but was within time in respect of schedules b and C property, Issue No. 3 was decided in the light of the finding recorded under issues No. 1 and 5. Issue No. 4 was already decided earlier. Issue No. 6 was not pressed and, therefore, it was decided in
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