Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:
30. 8.2013. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN A.S.No.956 of 1993 1. Ummakuluthum Beevi 2. Shamsudeen 3. Salavudeen 4. Padharutheen 5. Jograma (Cause Title accepted regarding 5th appellant as per order dated 7.7.1993 in CMP No.8033/93) 6. Minor Habibulla (Minor 6th appellant rep by next friend, guardian and mother Ummakuluthum Beevi) Appellants vs.
1. Balgis Beevi (died) 2. Mohammed Zackria 3. Mohammed Hanifa 4. Sowkath Unnissa 5. Jahira (RR2 to 5 are recorded as LRs of the deceased first respondent vide order dated 27.8.2002 made in memo SR752902002) 6. Salima Beevi 7. Brusinisha (Deceased) 8. Robanathulla Afsama 9. Minor Kanijathullah (rep by next friend, guardian and mother Robanathulla Afsama) 10. Saliheen, N.J.
11. Sumaiya 12. Basila 13. Adam Sabiyullah 14. Minor Moosina 15. Minor Hasina (Minors rep by father & next friend Saliheen) (RR10to 15 brought on record as LRs of the deceased 7th respondent vide order dated 26.10.2009 made in C.M.P.Nos.12718 to 12721 of 1995) Respondents Appeal Suit against the judgment and decree dated 25.4.1992 in O.S.No.4 of 1986 on the file of the Sub Judge, Tirupur. For appellants : Mr.K.Raghunathan For RR2to 5 : Mr.J.Antony Jesus JUDGMENT
Plaintiffs in O.S.No.4 of 1986 on the file of the Sub Court, Tirupur are the appellants.
2. One V.S.Mohamed Ali Sahib, father of the first plaintiff was entitled to the properties described as items 1 and 2 in the suit schedule and 1/4 share in the third item of properties. On the death of Mohamed Oli Sahib, the properties devolved upon his wife wife Jainu Bibi, four daughters and two sons including the first plaintiff. The first plaintiff's father was a grocery merchant. He had dealings with Haji Mohamed Ibrahim Sahib. The said Haji Mohamed Ibrahim Sahib obtained a decree against the heirs of Mohamed Ali Sahib by filing the suit in O.S.No.752 of 1939 on the file of the District Munsif, Calicut and in that suit, the first plaintiff, his brother and sisters and mother were parties. It is alleged that at the intervention of Noor Mohammed Sahib, the maternal grandfather of the first plaintiff, the matter was compromised and the decree holder viz., Haji Mohamed Ibrahim agreed to receive Rs.600/= in full satisfaction of the decree. In respect of item 3, the first plaintiff's father was entitled to 1/4 share and the remaining 3/4 share belonged to V.K.M.Mohamed Ibrahim Sahib and he was in possession of the entire third item of properties. The first plaintiff's mother demanded rent for her 1/4 share from V.K.M.Mohamed Ibrahim and to deny the right of the first plaintiff's mother in claiming rent in respect of 1/4 share, the said V.K.M.Mohamed Ibrahim got an assignment of the decree passed against the first plaintiff and his brothers, sister and mother in O.S.No.752 of 1939 from Haji Mohamed Ibrahim Sahib. Thereafter, the first plaintiff's grandfather talked with the decree holder Haji Mohammed Ibrahim Sahib and there was another compromise in the shop of A.P.Nagore Meeran Rowther and it was agreed that the 1/4 share of the first plaintiff's family in item 3 should be conveyed to the assignee decree holder V.K.M.Mohamed Ibrahim in lieu of the money due to him under the decree and in addition, a sum of Rs.175/= should also be paid towards the expenses incurred and Rs.175/= was paid to the assignee decree holder V.K.M.Mohamed Ibrahim on 30.8.1942 and that amount was paid by borrowing money from Sri.T.R.Sundaram Pillai, Advocate on 20.8.1942. Therefore, as per the compromise, 1/4 share in item 3 of the suit properties was to be transferred to the assignee decree holder V.K.M.Mohamed Ibrahim and for that purpose, the first plaintiff's mother filed O.P.No.34 of 1942 in the District Court, Coimbatore to get herself appointed as guardian of her minor children. Even thereafter, the assignee decree holder was postponing the execution of the sale deed from the first plaintiff's mother under various pretext. Meanwhile, he also got the decree passed in O.S.No.752 of 1939 transferred to the District Munsif Court, Tirupur and in execution of the decree, brought the properties for sale and in that petition, the first plaintiff, his brothers and sisters were declared as majors even though they were represented by their mother and guardian. In the said E.P.No.643 of 1951, item 1 of the suit properties was sold in court auction to one Muthusamy Gounder and item 2 was sold to one Banu Sahib on 23.6.1953 and item 3 was not sold. Thereafter, V.K.M.Mohamed Ibrahim Sahib purchased item 1 of the suit properties from Muthusamy Gounder and item 1 is in the hands of the legal heirs of V.K.M.Mohamed Ibrahim Sahib and the second item is in possession of the 6th defendant. The first plaintiff, alongwith his brothers and sisters filed E.A.No.1415 of 1953 on the file of the District Munsif Court, Tirupur for setting aside the sale in E.P.No.643 of 1951 and that petition was dismissed and the appeal filed against that order in A.S.No.107 of 1954 on the file of the Sub Court, Coimbatore was also dismissed and aggrieved by the same, C.M.A.No.1955 was filed before this court and this court dismissed the appeal holding that the appeal is not maintainable and the appellants have to work out their remedies by filing a separate suit. The first plaintiff's family has 1/4 share in the third item of suit properties and V.K.M.Mohamed Ibrahim appears to have given the entire third item to his wife Balkis Bibi and thereafter, the 7th defendant and one Abu Sali claimed to be owner of third item and defendants 8 and 9 are the legal representatives of Abu Sali and Balkis Bibi, wife of V.K.M.Mohamed Ibrahim is the first defendant. On 28.3.1962 there was a partition in the family of the first plaintiff and in that partition, the suit items were allotted to the share of the first plaintiff and V.K.M.Mohamed Ibrahim and his heirs and Babu Sahib and his successors-in-interest assured the first plaintiff that they would return the second item of properties sold in court auction and believing their words, the plaintiffs did not take any further action and as the defendants did not take any steps to hand over items 1 and 2, the first plaintiff issued notice to defendants 1 to 5, 7 to 9 and the husband of the 6th defendant on 9.1.1984 and the fourth defendant sent a reply denying the plaintiff's claim. Thereafter, the first plaintiff sent notice dated 5.3.1984 through his lawyer demanding possession of items 1 and 2 in accordance with the compromise effected in 1942 and defendants 2 to 5, 7 and 8 and the husband of the sixth defendant sent reply notice containing false and untenable allegations and the defendants wanted to take advantage of long lapse of time. Therefore, the plaintiffs approached Mupthi Hasarat of Bakkia-Thus-Salihat Madras-a of Valur to settle the dispute and the Mupthi Hasarat has given his verdict favour of the plaintiff on 19.8.1984 and therefore, the suit was filed for declaration that the plaintiffs are entitled to items 1 and 2 of the schedule of properties and for recovery of possession of items 1 and 2 from defendants 1 to 6 or in the alternate for directing partition of the property in item 3 into four equal shares and allot one share to the plaintiff and for the reliefs.
3. The first defendant filed a statement denying the right of the plaintiffs in respect of the suit properties and contended that the plaintiffs have no title or possession of the properties as they were sold long back and the plaintiffs' right was also lost even in the year 1957 when their applications were dismissed by the High Court and therefore, the suit filed by the plaintiffs is hopelessly barred by limitation. The court auction purchasers were enjoying the properties as their own and had passed on to various persons and all of them had perfected title by their continuous possession and they also perfected title by adverse possession. The deceased V.K.M.Mohamed Ibrahim was in continuous and uninterrupted possession and enjoyment of 1/4 share in item 3 of the schedule of properties and he also perfected his title by adverse possession and he was enjoying the 1/4 share alongwith 3/4 share and he was enjoying item 3 as a full owner and the plaintiffs family never demanded any rent from him at any point of time as the plaintiffs family knew that they had no right over the suit property after getting assignment of the decree by V.K.M.Mohamed Ibrahim Sahib and there was no compromise as alleged by the plaintiffs and he never agreed to give up his right over items 1 and 2 and the payment of Rs.175/= pursuant to the mediation was also denied. The first defendant further stated that after getting assignment of the decree, Execution Petition was filed to bring the property to sale in items 1 and 2 and purchased by various persons and though the 1/4 share in item 3 was not brought to sale, the Ibrahim Rowther was in possession of third item as full owner to the knowledge of the plaintiffs and the plaintiffs never claimed any right over the same and therefore, they also lost their right and therefore, the suit for partition or for declaration will not lie.
4. Defendants 2 to 5 adopted the statement of the first defendant.
5. The sixth defendant contested that he was the bona fide purchaser for value of item 2 of the plaint schedule and he purchased item 2 on 14.5.1970 and from that date onwards, he continued to be in possession of tat property to the knowledge of the plaintiff and perfected title by adverse possession.
6. The 7th defendant also contended that defendants 7 to 9 were bona fide purchasers for value of item 3 of the suit properties without notice of any defect in title and they purchased the property in the year 1972 and since then, they were in continuous possession and they also perfected title in respect of item 3 of the suit properties.
7. On the basis of the above pleadings, the following issues were framed:- ".1. Whether the compromise pleaded in the plaint was true and valid?.
2. Whether the plaintiffs are entitled to claim any right in respect of items 1 and 2?.
3. Whether the plaintiffs are entitled to the relief of recovery of possession?.
4. Whether the suit is maintainable?.
5. Whether the suit is barred by limitation?.
6. Whether the plaintiffs are entitled to alternative relief prayed for?.
7. Whether the court fee paid is correct?.
8. Whether the defendants perfected title by adverse possession?.
9. To what relief, the plaintiff is entitled?.".
8. The Trial Court tried issues 1 to 3 and 5 together and held that the plaintiffs admitted while examining the third plaintiff as PW1 that he was not aware of the compromise alleged in the plaint and the evidence of PW2 regarding compromise cannot be believed and the compromise cannot be accepted on the basis of Ex.A13. The Trial Court further held that admittedly, the plaintiffs filed E.A.No.1415 of 1953 for setting aside the sale of items 1 and 2 and it was dismissed on 15.2.1954 and aggrieved against that A.S.No.107 of 1954 before the Sub Court, Coimbatore which was also dismissed on 15.3.1955 and further appeal to this court in A.A.O.No.1955 was also dismissed on 18.7.1957 and this court also directed the plaintiffs to work out their remedy by filing separate suit and the suit was filed only in 1986 and for more than 29 years, no steps were taken and therefore, the compromise alleged to have taken place in the year 1942 was not proved and the plaintiffs cannot claim any right in respect of items 1 and 2 of the suit properties and they are not entitled to the relief of declaration and injunction and the suit is also barred by limitation and answered issues 1 to 3 and 5 against the plaintiffs and issues 6 and 8 were answered against the plaintiffs holding that the plaintiffs are not entitled to the alternative relief and the defendants also perfected title by adverse possession and in respect of item 3, V.K.M.Mohamed Ibrahim though entitled to 3/4 share in item 3, sold the entire property to his wife under Ex.A3 and thereafter, the property was purchased by defendants 7 to 9 and the plaintiffs cannot be considered as co-owners in respect of item 3 alongwith defendants 7 to 9 and plaintiffs were not in joint possession and defendants exercised hostile title to the plaintiffs and enjoyed the property for more than the statutory period and therefore, the plaintiffs are not entitled to the alternative relief and also the defendants have perfected title by adverse possession. Issue No.7 was answered against the plaintiffs holding that the plaintiffs were not enjoying possession and the court fee paid was not proper and having regard to the findings given in respect of issues 1 to 3, 6 and 8, the suit was also not maintainable and the suit was dismissed. Aggrieved by the same, the present appeal is filed.
9. Mr.Raghunathan, learned counsel for the appellants submitted that though defendants 1 to 6 might have claimed title or right in respect of items 1 and 2 on the basis of sale deeds of those properties pursuant to the court auction, in respect of item 3 is concerned, admittedly, the plaintiffs are entitled to 1/4 share and V.K.M.Mohamed Ibrahim was entitled to 3/4 share and therefore, in respect of item 3 is concerned, the plaintiffs are the co-owners alongwith defendants 7 to 9 who purchased that right from V.K.M.Mohamed Ibrahim and therefore, there cannot be any adverse possession by one co-owner against another and therefore, the court below ought to have granted alternative relief of partition in respect of item 3 and relied upon the judgment reported in MUHAMMAD KALIBA ROWTHER v. MUHAMMAD ABDULLAH ROWTHER (AIR1963MADRAS84 and K.GOPALAN (DIED) & OTHERS v. MUTHULAKSHMI (2011-3-LW789 in support of his contention. The learned counsel further submitted that even in respect of items 1 and 2 are concerned, it is the specific case of the plaintiffs that they were minors at the time of sale of those properties pursuant to the execution petition filed by the assignee decree holder V.K.M.Mohamed Ibrahim Rowther and therefore, the sales made in execution of the decree are not binding and there were attempts to settle the matter through negotiation and that was the reason for not filing the suit and once the Mupthi Hasarat gave a verdict in favour of the appellants, the suit was filed for declaration in respect of items 1 and 2 and therefore, the court below ought to have granted the decree of declaration in respect of items 1 and 2.
10. On the other hand, Mr.Antony Jesus, the learned counsel for respondents 2 to 5 submitted that the plaintiffs lost their right after their appeal in C.M.A.No.90 of 1955 was dismissed in the year 1957 and even as per the direction of this court made in that order, the plaintiffs ought to have filed the suit for recovery of the properties sold in court auction within three years from the date of the order made in C.M.A.No.90 of 1955 and therefore, the suit filed in the year 1986 was barred by limitation as per Article 59 of the Limitation Act. He further contended that in respect of item 3 also, the plaintiff cannot claim any right as they have lost their right and defendants 7 to 9 perfected title by adverse possession by their continuous possession fore more than 20 years and also relied upon the judgment of the Honourable Supreme Court in DES RAJ v. BHAGAT RAM (DEAD) BY LRs (2007 (2) CTC838.
11. On the basis of the above submissions, the following points arise for consideration in this appeal:- ".1. Whether the claim of the appellants in respect of items 1 and 2 is barred by limitation?.
2. Whether the appellants are entitled to alternative relief of partition in respect of item 3?.
3. Whether the appellants have lost their right over item 3 of the suit properties?.".
12. As stated supra, even according to the plaintiffs/appellants, one Haji K.Mohammed Ibrahim Sahib obtained a decree against the predecessor-in-title of the first plaintiff by filing the suit in O.S.No.752 of 1939. Thereafter, the decree was assigned in favour of V.K.M.Mohamed Ibrahim and he filed E.P.No.643 of 1951 for bringing items 1 and 2 for sale and item 1 was sold in court auction in favour of Muthusamy Gounder and item 2 of the suit properties was sold in favour of Banu Sahib on 23.6.1953 and item 3 of the suit properties was not sold.
13. To set aside the sale made pursuant to E.P.No.643 of 1951, the first plaintiff, alongwith his mother, brother and sisters filed E.A.No.1415 of 1953 on the file of the District Munsif, Tirupur under section 47 of the Code of Civil Procedure and that petition was dismissed and that finding was confirmed in A.S.No.107 of 1954 and in C.M.A.No.90 of 1955 by this court on 18.7.1957 as evidenced by Ex.A1. As per the judgment in C.M.A.No.90 of 1955, this court held that the appeal filed by the plaintiffs was not maintainable and the plaintiffs ought to have agitated their remedies by filing a separate suit. Nevertheless, no steps were taken by the plaintiffs to file a suit and the suit was filed only in the year 1986.
14. As per Article 59 of the Limitation Act, for setting aside of any instrument or decree, a suit has to be filed within three years from the date on which the plaintiff came to know about the passing of the decree which was to be cancelled. Therefore, even assuming that the plaintiffs were prosecuting in good faith by filing E.A.No.145 of 1953 and the same was dismissed and confirmed in C.M.A.No.90 of 1955 on 18.7.1957, the plaintiffs ought to have filed the application to set aside the sale made pursuant to the order made in E.P.No.643 of 1951 within three years from the date of judgment delivered in C.M.A.No.90 of 1955 but, the suit was filed in the year 1986. Hence, the suit was barred by limitation and that was rightly appreciated by the court below.
15. The court below rightly disbelieved the evidence of PW2 and held that there was no compromise as alleged by the plaintiffs. Further, the properties in items 1 and 2 were purchased in court auction by Muthusamy Gounder and Banu Sahib and from Muthusamy Gounder, V.K.M.Mohamed Ibrahim Sahib purchased the properties and they are in the hands of defendants 1 to 5 and the second item was purchased by the sixth defendant from Banu Sahib. Hence, the point No.1 is answered against the appellants and I hold that the suit filed by the plaintiffs in respect of items 1 and 2 was barred by limitation.
16. As regards the third item of properties is concerned, admittedly, the plaintiffs were having 1/4 share and the remaining 3/4 share belonged to V.K.M.Mohamed Ibrahim Sahib and in the court auction, item 3 of the properties was not sold. Therefore, in respect of item 3 of the properties, the plaintiffs were having 1/4 share and the remaining 3/4 share was in the hands of V.K.M.Mohammed Ibrahim Sahib. Therefore, it was contended by the learned counsel for the appellants that the plaintiffs are entitled to the relief of partition, having regard to the fact that they are co-owners in respect of third item of property, there cannot be any adverse possession against them and defendants 7 to 9, who claimed to be the owners of item 3 of the properties, in the absence of any plea of ouster, cannot claim adverse possession and the court below erred in holding that the plaintiffs lost their title in respect of item 3 of the suit properties. He also relied upon the judgment in 2007 (2) CTC838 17. It is admitted by the plaintiffs that V.K.M.Mohammed Ibrahim Sahib transferred the entire third item of suit properties in favour of his wife and as per Ex.B5 dated 6.10.1967, one of the daughters of V.K.M.Mohammed Ibrahim Sahib executed the release deed relinquishing her share in that property in favour of her mother, brother and sisters and under Ex.B4, the other legal heirs of Mohammed Ibrahim Sahib, sold the the third item of properties to one Sahul Hameed on 11.11.1967 and the said Sahul Hameed sold the third item under Ex.B7 dated 7.8.1972 in favour of one Brunin Bibi, wife of N.J.Mohideen and thereafter, the property is in the enjoyment of defendant 7 to 9. Therefore, the property was dealt with by V.K.M.Mohammed Ibrahim Sahib as the full owner and his legal heirs sold the entire third item in the year 1967 and in the year 1970 under Ex.B16, the purchaser Sahul Hameed sold a portion of item 3 to A.S.Abu Sali, son of Mohammed Sulthan and sold the remaining part of item 3 under Ex.B7 dated 7.8.1972 to Brunin Bibi, wife of N.J.Mohideen. Therefore, it is proved by defendants 7 to 9 that they are in possession of item 3 of the properties from the year 1970 onwards as the full owner.
18. Further, in the plaint, it was alleged that the first plaintiff's mother demanded rent for the 1/4 share from the aforesaid V.K.M.Mohamed Ibrahim Sahib and enraged by that, he got assignment of the decree in O.S.No.752 of 1939 and there was a compromise in the shop of A.P.Nagore Meeran Rowther wherein it was agreed that the 1/4 share of the plaintiffs family in item 3 should be conveyed to V.K.M.Mohammed Ibrahim Sahib in lieu of the money due to him under the decree and in addition, a sum of Rs.175/= should also be paid towards the expenses and that amount was also paid to V.K.M.Mohammed Ibrahim. It is further alleged that as per the compromise, the 1/4 share in third item ought to have been conveyed to V.K.M.Mohammed Ibrahim.
19. It is the case of the plaintiffs that as per the compromise, items 1 and 2 of the suit properties should be given to the plaintiffs. Therefore, even according to the plaint allegations, they agreed to give up their 1/4 share in the third item of properties and they also acted upon the compromise and also paid Rs.175/= to V.K.M.Mohammed and only thing to be done by them was the execution of the release deed in respect of their 1/4 share. Therefore, the plaintiffs also admitted that they never claimed any right in respect of the third item of properties and they claimed items 1 and 2 pursuant to the compromise.
20. Therefore, having regard to the specific allegation in the plaint and the various sale deeds in favour of defendants 7 to 9 and the property was enjoyed by defendants 7 to 9 would only lead to the conclusion that the plaintiffs were ousted from the enjoyment of the third item of properties for more than the statutory period and the property was enjoyed by V.K.M.Mohammed in his own right and he also dealt with the third item of properties as the owner and therefore, even assuming that the plaintiffs were having 1/4 share in the third item of properties, they lost their right and defendants 7 to 9 and their predecessors-in-title also ousted the plaintiffs.
21. In the judgment in 2007 (2) CTC838 the Honourable Supreme Court dealt with the aspect of ouster and adverse possession. In that judgment, the Honourable Supreme Court held as follows:- ".where long and continuous possession of the plaintiff-respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-a-vis his co-owners and they were in know thereof.
25. Mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in suit exclusively and not for and on behalf of other co-owner also is evident from the fact that the defendants-appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendants-appellants claimed themselves to be co-owners of the plaintiff. A bare perusal of the judgments of the courts below clearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownership in himself. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants. They allowed the first suit to be dismissed in the year 1977. Another suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalf of the appellants before the courts below, that a co-owner can bring about successive suits for partition as the cause of action therefor would be continuous one. But, it is equally well-settled that pendency of a suit does not stop running of 'limitation'. The very fact that the defendants despite the purported entry made in the revenue settlement record of rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly go to show that even prior to institution of the said suit the plaintiff-respondent had been in hostile possession thereof.".
22. In this case, considering the documentary evidence and the admissions of the plaintiffs in the plaint, the Trial Court rightly held that the plaintiffs were ousted and defendants 7 to 9 perfected title by adverse possession in respect of item 3 and I do not find any infirmity with the findings of the Trial Court.
23. In the judgment reported in 2011-3-LW789 I discussed the scope of adverse possession by referring to various judgments of the Honourable Supreme Court and having regard to the facts stated already, the judgment reported in 2011-3-LW789cannot be applied to the facts of the case. Similarly, the judgment reported in AIR1963MADRAS84cannot also be applied to the facts of the case. Points for consideration No.2 and 3 are also answered against the appellants. In the result, the appeal is dismissed and the judgment and decree of the Trial Court are confirmed. No costs. 30.8.2013. Index: Yes. Internet: Yes. ssk. To The Sub Judge, Tirupur. R.S.RAMANATHAN, J.
Ssk. P.D. JUDGMENT
IN A.S.No.956 of 1993 Delivered on 30.8.2013