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2013 Supreme(All) 1750
ALLAHABAD HIGH COURT
Sibghat Ullah Khan, J.
Firoz Jahan and Others -Appellant
Versus
Nazim Husain and Others -Respondent
Second Appeal No. 603 of 1979
Decided On : 10-07-2013
S/Sri S.K. Mehrotra, I.D. Shukla, Deoki Nandan, Km. Meera Bagat, Km. Vishwa Mohini, S.K. Tripathi, Smt. Nirmala, Vimal Kumar, Advocates, for Respondents.
Adverse possession to confer title must be open and hostile, and there must be pleading and evidence regarding the maturity of title by adverse possession.
Headnote:
Limitation - Property Dispute - Old Limitation Act - Article 142, Article 144 - The court discussed the ownership of the property in dispute, the validity of unregistered sale deed of 1906, and the application of adverse possession. The court held that the lower appellate court thoroughly considered the title of the parties and the non-framing of points for determination was not fatal. The court also emphasized that adverse possession to confer title must be open and hostile, and as there was no pleading or evidence regarding the maturity of title by adverse possession, the Second appeal was dismissed.
Fact of the Case:
The suit was filed for possession of a house except a part thereof consisting of a Kothari and a shop. The lower appellate court allowed the plaintiffs' suit for possession along with damages. The Second Appeal was directed against the decree passed by the lower appellate court.
Finding of the Court:
The court found that the lower appellate court thoroughly considered the title of the parties and the non-framing of points for determination was not fatal. The court also emphasized that adverse possession to confer title must be open and hostile, and as there was no pleading or evidence regarding the maturity of title by adverse possession, the Second appeal was dismissed.
Issues: The substantial questions of law included the decision of the first Appellate Court without recording findings on certain issues, failure to decide the question of limitation, misreading of documents and evidence, and the admissibility of evidence and documents.
Ratio Decidendi: The court held that the non-framing of points for determination was not fatal, and emphasized that adverse possession to confer title must be open and hostile. As there was no pleading or evidence regarding the maturity of title by adverse possession, the Second appeal was dismissed.
Final Decision: The Second appeal was dismissed.
Heard Sri Hari Om Singh, learned counsel for the appellant and Sri S.K. Mehrotra, learned counsel for the respondent.
This is defendants Second Appeal arising out of Regular Suit No.87 of 1961, Nazim Husain and another Vs. Smt. Firoz Jahan and four others. The suit was instituted for possession of a house except a part thereof consisting of a Kothari and a shop. The Kothari and the shop were stated to be in possession of another person Qazim Husain. The suit was dismissed by Additional Civil Judge Lucknow on 8.1.1965 holding the suit to be barred by Article 142 of old limitation Act. Against the said decree plaintiffs, respondents No.1 & 2 filed civil appeal no.58 of 1965 which was allowed by 4th A.D.J. Lucknow on 16.5.1979, judgment and decree passed by the trial court was set aside and plaintiffs suit for possession was decreed along with Rs.26/- as damages for use and occupation and pendente lite and future damages for use and occupation @ of Rs.7/- month. This second appeal is directed against the decree passed by the lower appellate court.
Initially lower appellate court had dismissed the appeal against which decree Second Appeal no.112 of 1967 was filed which was allowed by this court on 3.4.1974. The lower appellate court at the earlier occasion had refused to take on record some documents sought to be filed before it as additional evidence. The high Court through judgment and decree dated 3.4.1974 directed that said documents shall be taken on record as additional evidence.
It is undisputed that initially one Shanker Lal was the owner of the house in dispute who sold it to Sri Khurshid Ali on 24.2.1868 (wrongly mentioned as 24.2.1968 at several places in the judgment of the lower appellate court). Thereafter, several mortgages and transfers of mortgagee/mortgagers rights and sale deeds took place and a partition suit (No.10 of 1911) was also filed. Different co-sharers transferred their shares inter se. Ultimately both the plaintiffs through sale deed dated 25.9.1961 became owner of the entire property in dispute, however, by way of abundant precaution they also purchased a small share which might belong to Meer Humayun Jah through registered sale deed dated 19.1.1964.
In between 1868 and 1964 aforesaid transactions took place in the following years:
1. 26.2.1980
2. 18.10.1980
3. 2.3.1911 (on this date application was filed in the partition suit adding the property in dispute as part of the property in dispute in the said suit)
4. 16.8.1941
5. 21.12.1944
6. 30.11.1944
7. 15.1.1947
8. 19.1.1954
9. 3.12.1954
10. 17.9.1955
11.27.10.1960
12.14.09.1961
13.19.09.1961
14.25.09.1961
15. 19.1.1964
All the details have been given in the opening portion of the judgment of the lower appellate court.
According to the plaint case Akbar Ali father of defendant No.1 had taken the house on rent from Meer Humayun Jah. Rabia Begum alias Rabbo daughter of Kale Khan was wife of Akbar Ali. Akbar Ali and Smt. Rabia migrated to Pakistan but defendants who are daughter of Smt. Rabia and her other relations continued to illegally occupy the said house. It was also pleaded in the plaint that Rabia migrated to Pakistan after her husband and before migration surrendered her tenancy rights to Humayun Jah.
The defendants admitted that Shanker Lal was the original owner of the house, however, they asserted that Haider Ali son of transferree of Shanker Lal sold the house in dispute to Kale Khan (father of Smt. Rabia) through unregistered sale deed dated 26.7.1906 hence it was wrong to assert that his daughter Rabia was the tenant and according to the defendants after the death of Kale Khan even though his daughter Rabia migrated to Pakistan but they being descendants of Kale Khan inherited the house in dispute and had got an independent right to the house in dispute. Sri Kale Khan died in 1931 leaving behind his widow a son and two daughters including Rabia Begam. Defendants in the written statement pleaded that they had also perfected their title ri
