Jagat Narayan, C.J.
1. These two cross appeals against the judgment and decree of the learned Senior Civil Judge, Ajmer, arise out of a suit for partition between two sects (Thoks) of Khadims (servitors) of the renowned saint Khawaja Moinudin Chisty whose tomb at Ajmer generally known as Durgah Khawaja Sahib, Ajmer, has for centuries past been a place of pilgrimage for devout Muslims. Sheikh Hajrat Syed Mohd. Yadgar Sahib and Hajrat Syed Fakhruddin Sahib were the two original disciples or Khawaja Moinudin Chisty. The descendants of Sheikh Hajarat Mohd. Yadgar Sahib constitute one sect (Thok) of Khadmis and are khown as Sheikhzada Khadims. Similarly, the descendants of Hajrat Syed Fakhrudin Sahib constitute another sect (Thok) of Khadims and are khown as Syedzada Khadims.
2. The present suit was brought on 6.7.53 by five persons representing the entire sect of Sheikhzada Khadims against the Anjuman Moinia Fakhria Chistia Khawaja Syedzadas, a corporate body of the Syedzada Khadims registered in the year 1942 under the Societies Registration Act, 1860, hereinafter called as the Anjuman. The plaintiffs being the descendants of one of the two original disciples claimed half share in certain offerings and presents made by the pilgrims visiting the Durgah Khawaj Sahib, Ajmer. They further claimed half share in certain movable and immovable properties as also in the income from these properties, which, according to them, were jointly owned by the parties. The plaintiffs alleged that prior to 1942 members of both the sects (Thoks) of Khadims were managing the joint property 'Anjuman Fakhria Chistia' an unregistered body representing both sects. The details of the various properties in which the plaintiffs claimed half share were given in Schedule A and B attached to the plaint. They run as under.
Schedule A
(Movable and immovable properties)
1. Income of the nazer made at the rozas of Hajrat Sahibzadi Sahib Hajrat Sahibzada Sahib the brother-in-law of Keswat Khawaja Sahib and Bibi Sahiba inside Durgah Sharif Ajmer (The Theka of the above income is given before Urs).
2. Income of the nazer of both the degs (large and small). The Theka is given during Urs for the income of the nazer which occurs in Urs and Pushkar fairs.
3. Income of the Haquq of Panchayat from the Durgah Sharif for both degs Rs. 25/- and Rs. 12/8/- respectively when it is cooked.
4. Income of the land before Chhatri Darwaja, half of the eastern gate and an underground kotha facing north bounded
East - Way
West - Durgah Sharif
North - Durgah Sharif
South - Half of the dalan belonging to Fazal Hussain
5. Income of the nazer made by European gentlemen and the Theks is given for one year
6. Income of the rent of nohra facing south and west including houses and shops and the rights thereof situated at Cavendispura, Ajmer, detailed below-
East - Public Way
West - Public Way and the New Majestic Talkies
South - Public Way
North - Public Way and Petrol Pump
7. Income of nazar made by His Excellency the Nizam of Hyderabad
8. Income of the rent of houses situated near Tripolia gate, detailed below:
East - Public Way
West - Public Way and houses of Noor Mohd.
South - Public Way
9. Income of 1/4th share of Deg on behalf of His Excellency the, Nizarh of Hyderabad.
Income of the rent of the houses of Imambara situated in Khadim Mohalla and detailed below:
East - House of Abdul Shakur
West - Public Way
South - Do
North - Houses of Abdul Shakur and Public Way.
10. Income of Dester Jami Khadiman which is realised from Durgah Sharif.
11. Income of nazer made by Rulers (Walin Mulka).
12. Income of sweet-meet during Urs Khawaja Sahib each Thursday, every 14th Urs, Qufab Sahib and Chasti Sharif
13. Goods belonging to Panchayat
Schedule B
List of immovable properties.
1. Land situated before Chhatri Darwaja, half of the Dalan in front of the eastern gate and an underground Kotha facing north bounded-
East - Way
West - Durgah Sharif
North - Do
South - Half of the dalan belonging to Fazal Hussain.
2. Nohra facing south and west including houses and shops and the rights thereof situated at Cavendispura Ajmer and detailed below:
East - Public Way
West - Public Way and the New Majestic Talkie
South - Public way
North - Public way and petrol pump
3. Mouses situated near Tripolia Gate, and detailed below:
East - Public Way
West - Public Way and houses of Noor Mohd.
South - City Wall
North - Public Way
4. Houses of Immambara situated in Khadim Mohalla and detailed below:
East - House of Abdul Ghafur
West - Public Way
South - Do
North - Houses of Abdul Shakur and Public Way,
List of movable property.
5. Goods belonging to Panchayat.
3. An examination of the two Schedules would reveal that Item No. 4 of Schedule A related to property No. 1 of Schedule B, Item No. 6 of Schedule A related to property No. 2 of Schedule B, Item No. 8 of Schedule A related to property No. 3 of Schedule B, the second part of Item No. 9 of Schedule B and Item No. 13 of Schedule A was same as Item No. 5 of Schedule B.
4. The learned Senior Civil Judge, Ajmer, in whose court the suit was instituted, issued a public notice under Order 1, Rule 8 CPC of the institution of the suit by the plaintiffs in the representative character. In pursuance of the notice, certain sheikhzada Khadims desired to be impleaded as parties in the suit and they were impleaded as defendants. They are defendants Nos. 2 to 10
5. The suit was contested by the defendant No. 1 Anjuman alone. la its written statement, Anjuman admitted that the plaintiffs were the Sheikh zeda Khadims and the Anjuman was a registered body of the Syedzada Khadims. The Anjuman denied the claim of the plaintiffs in respect of Items Nos. 2, 4, 6, 8 second part of Item No. 9 (income from the rent of the houses of Imambara) of Schedule A as also Items Nos. 1 to 4 Schedule B and pleaded its exclusive title over them. As regards Item No 7 of Schedule A, it was pleaded that the nazer made by His Excellency the Nizam of Hyderabad was distributed per head amongst all the khadims, whether Sheikhzadas, or Syedzadas who were present at the moment. As regards Item No. 11 of Schedule A, it was stated that the nazer made by the rulers were received by the Vakils of the respective rulers. The Anjuman admitted that Items Nos. 1, 8, 5 and first part of Item No. 9 of Schedule A belonged jointly to the Sheikhzada Khadims. & Syedzadas Khadims It was, however, stated that the amount realised from these items were exclusively set apart for the Urs of the ancestors of the Sheikhzada Khadims as well as the Syedzada Khadims, namely, Hazrat Sheikh Mohd. Yadgar Sahib and Hazarat Syet Fakhruddin Sahib on 25th Razat every year and in giving nazars to officials and in maintaining Haquqs (rights of Khadims in general). The claim of the plaintiffs in respect of Item No. 18 of Schedule A and Item No. 5 Schedule A, which are the same, was denied by the Anjuman. No reply was given in respect of Items Nos. 10 and 12 of Schedule A in the written statement.
6. The learned Senior Civil Judge after evidence accepted the defence version relating to immovable properties described in Schedule B & the income arising therefrom mentioned in Items Nos. 4, 6, 8 and the latter portion of Iterm No. 9 of Schedule A and held that the said immovable properties as also the income from those properties belonged exclusively to the Syedzada Khadims and the plaintiffs had no share in them. The defence version was also accepted in respect of Items NDS 7 and 11 of Schedule A. It was held that the income of the nazirs made by His Excellency the Nizam of Hyderabad was taken by the Khadims who were present at the time when the nazar was made and was distributed per capital to all Khadims and was, therefore importable. Similarly, it was held that the income of nazars mads by the rulers was received by those Khadims who were the Vakils of the respective rulers. As regards items Nos. 10 and 12 of Schedule A, the learned Senior Civil Judge observed that these items had been impliedly admitted by the defendant Anjuman as no reply was given in the written statement. The learned Senior Civil Judge further held that the plaintiffs failed to establish their claim in respect of movable property mentioned in Item No. 13 of Schedule A & Item No. 6 of Schedule B. As regards Item No. 2 of Schedule A relating to the income of the offering made by the pilgrims to the two Degs (large and small), the learned Senior Civil Judge accepted the plaintiff's claim and it was held that the plaintiffs and the Syedzada Khadims were entitled to receive the income of the Degs in equal shares. On the above findings, the learned Senior Civil Judge passed the decree, the relevant portion of which runs as as under:
It is, therefore, preliminarily decreed that the plaintiffs have half share in Items Nos. 1, 2, 3, 5, 10, 12 and first part of Item No. 9 of Schedule A of the plaint, which are described more fully at the end of the judgment and they are entitled to get it partitioned. Looking to the nature of these items, it is not possible to get them divided by metes and bounds. It is, therefore, no use appointing any commissioner for this purpose. It would be better if certain period is fixed for which each of the parties would be entitled to realise income of these items, and it is, therefore, decreed that the plaintiffs Sheikhjadas and defendants Syedjadas shall be realising income of Items Nos. 1, 2, 3, 5, 10, 12 and first part of Item No. 9 during the alternate Hizri years. The next Hizri year 1380 is to commence after about three months. This decree shall be enforceable from that year. The plaintiffs shall be entitled to realise the same in the year 1381 and and thereafter also these parties shall be realising the incomes regarding these items in the alternative years. The rest of the plaintiff's claim is dismissed.
7. The defendant Anjuman as well as the plaintiffs are dissatisfied with the above decree and have, therefore, appealed to this Court. Before dealing with the appeals, we would like to dispose of the two applications which were filed in this Court on 20.8.69 and 18.2.70. The first application was filed on behalf of the Anjuman and tin other application was filed by the five Syedzada Khadims of Ajmer. The main contention raised in both the application was that the Anjuman which was a registered society under the Societies Registration Act did not represent the entire sect (Thok) of the Syedzada Khadims and though it might be managing the property on behalf of the Syedzada Khadims, that did not give it ownership rights in the property in dispute. It was, therefore, prayed that the plaintiff be directed to implead the entire sect of the Syedzada Khadims as parties to the suit by taking proceedings under Order 1, Rule 8. CPC and the case be remanded for de novo trial after the proper parties were brought on the record. Both these applications were opposed on behalf of the plaintiffs.
8. Having heard the learned Counsel for the parties, we are of the opinion that both these applications deserve to be rejected.
9. The Anjuman in its reply to paras Nos. 1 aid 2 of the plaint admitted that it was a registered body solely of the Syedzada Khadims who were the descendants of Hazrat Syed Fakhruddin Sahib. The pleadings of the parties thus clearly reveal that the Anjuman represented all the Syedzada Khadims, that is, the descendants of Hazrat Syed Fakhruddin Sahib. We may further point out that the entire proceeding before the lower court proceeded it on the footing that the Anjuman represented the entire sect of the Syedzad Khadims. At no time before the lower court, it was pleaded or argued that Anjuman did not represent all the Syedzada Khadims. Not only that, no such ground was even raised in the memorandum of appeal filed by the Anjuman. Whether the Anjuman represented some of them only involves a question of fact which cannot be decided upon the material placed before the Court. In the circumstances, we see no justification at this stage in accepting the prayer of the Anjuman to implead all the Syedzadas Khadims as parties to the suit. We accordingly reject both the applications.
10. We now take up the appeal filed by the defendant Anjuman. In the memorandum of appeal, various grounds were raised challenging the decree passed by the lower court. Mr. M.B.L. Bhargava while arguing the appeal on behalf of the Anjuman, restricted his arguments only to one Item, namely, Item No. 2 of Schedule A which relates to the income of the two Degs (large and small). He argued that the learned Senior Civil Judge committed gross error in holding that the income of the two Degs belonged jointly to the parties. According to him, there existed over-whelming documentary evidence which conclusively established the exclusive right of the Syedzadas Khadims to receive the income of the Degs. On a careful examination of the evidence on the record, we are satisfied that the finding arrived at by the lower court is correct. In this connection, we need not refer to all the documents produced by the plaintiffs In our opinion, three important documents Exs. 5, 24 and 10 sufficiently establish the plaintiff's claim to the income of the Degs. The first two documents, namely, Exs. 5 and 24 are written statements filed in the Civil original suit Mo. 84 of 1919. That suit was filed by the Babarchians (cooks) against some of the Syedzada Khadims. The Babarchians in the suit claimed their exclusive right to the entire income of the two Degs. The Syedzada Khadims who were parties to that suit opposed the claim of the Babarchians in the two written statements Ex. 3. 5 and 24. The relevant portion of para No. 6 of the said written statement runs as under:
That we the defendants do not realise the Deg amount in personal capacity but all the Khudam of Durgah Khawaja Sahib realise it jointly.
The next important document is Ex. 10. It is the statement of one Syed Atlaf Hussain Khadim who was examined on 10.5.25. as defendant's witness in Suit No. 84 of 1919. The relevant portion of that statement reads as under-
I have seen pices, corries and rupees being thrown on chaddars of Degs.... I have been seeing this for 25 years. This income is taken by the Khadims since 1908.... Before 1908 there was no regular committee of Khadims and the offerings were taken there and then & were distributed by the Khadims present among themselves.... The committee of the Khadims came in existance 1908.... These monies are not divided between the Khadims either Syedzadas or Sheikhzadas but were spent only in panchayati works, that is, litigation or Moharram or Urs of Khadims etc.
The term 'all the Khudam of Durgah Kawaja Sahib 'used in Ex. 5 and Ex. 24 unmistakably means the whole body of Khadims composed of both the sects, namely, the Sheikhzadas and the Syedzadas. There is thus no doubt that some of the Syedzadas who were defendants in Suit No. 84 of 1919 unequivocally admitted that the income of the Degs was jointly owned by the Sheikzada Khadims end the Syedzada Khadims. Similarly, it follows from Ex. 10 that prior to 1908 the income of, Degs used to-be distributed among all the Khadirrs whether Sbeikbzadas or Syedzadas who were present at the time of the distribution of the income and after 1908 the income of Degs was spent in panchayati works, that is, for the benefit of both the sects of Khadims. In our opinion, the admissions in the documents referred to above are clear, acknowledgement of the fact that the income of the two Degs belonged jointly to the Sheikhzadas and Syedzadas. The admissions are without any qualification and as they were made by the persons who were jointly interested in the income of the two Degs along with other Syed Kada Khadims, they were receivable in evidence not only against the decelerates but also against the other Syedzada Khadims under Section 18 of the Evidence Act, the relevant portion of which runs as under:
Section 18 - xx xx xx xxStatements made by-
(1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested,
XX XX XX XX XXare admissions, if they are made during the continuance of the interest of the persons making the statements.
Under this section the admission of one party may be given in evidence against another when the party against whom the admission is sought to be used has a joint interest with the party making the admission in the subject-matter or the thing to which the admission relates. This rule is based upon the legal principle that persons seized jointly are seized of the whole, the admission of the either is the admission of the other and may be produced in evidence against that other. See Ambar Ali v. Lutfe Ali I.L.R. 45 Cal. 159. These admissions though not conclusive are valuable pieces of evidence as the rule is what a party admits to be true unless the contrary is established. It was not shown by the Anjuman why the Syedzada Khadims who were defendants in Suit No. 84 of 1919 made a false statement against their own interest. We further find no evidence or circumstance on the record which rebuts the admissions contained in the documents referred to above.
11. Learned Counsel for the Anjuman laid stress on the compromise deeds Ex. A/16 and Ex. A/17 entered into between the Syedzada Khadims and Babarchians wherein it was mentioned that the income of the two Dees except on anna pieces, pies and coiries put by the pilgrims in the two Degs shall belong exclusively to the Syedzada Khadims. He further referred to Ex. A/8 to Ex. A/14 in order to show that the Syedzada Khadims had been receiving income of the two Degs for the last many years without any protest by the Sheikhzada Khadims. The learned Counsel then argued that these documents were sufficient to negative the plaintiff's claim in respect of the two Degs.
12. Now, out of the two compromise-deeds, one relates to suit No. 84 of 1919, and the other relates to another similar suit between the same parties filed, subsequent to suit No. 84 of 1.919. Both these compromise-deeds are dated 11.7.29. Their contents are almost identical. The relevant portion of the two compromise-deeds runs as under:
In the case of the aforesaid title the parties themselves have arrived at the following compromise that whatever amount comprising of currency notes, rupee coins, eight anna, four anna, two anna and one anna pieces, pice, pies and kodies shall be put by the pilgrims in each of the two Degs viz. small and big of the Dargah Sharif, in the time of Urs Sharif and Pushkar fair and throughout the year, one anna pieces, pice, pies and kodies shall be taken by the cooks from generation to generation while the currency nots, rupee coins, eight anna, four anna and two anna pieces, whatever they may be, shall be taken by all Shabijadgans known as Khadam Sahiban sons of Ola Hajrat Khawaja Sayeed Fakhruddin, i.e. they shall be taking them from generation to generation....
It may be noticed that none of the Sheikhzada Khadims was a party either to the two compromise deeds or to the two suits filed by the Babarchians. The Syedzada Khadims alone were parties to both the compromise-deeds. There is also nothing to suggest that the contents of the compromise-deeds were ever made known to the Sheikhzada Khadims or any one of them. The recitals in the compromise-deeds that the Syedzada Khadims alone would be entitled to receive the income of the two Degs being a self-serving statement or an admission the Syedzada Khadims in their own favour has no evidentiary value. Under Section 21 of the Evidence Act, an admission when it is in favour of the party seeking to use it is inadmissible in evidence unless it falls within the Exceptions mentioned in the section. It is not the case of the defendant that the admission contained in the compromise-deeds is not admissible and cannot be used in favour of the Syedzada Khadims.
13. The next document is Ex. A 1. It is a public notice dated 30. 11.29. It was issued by the Secretary of the Anjuman Fakhria Chistia inviting bids at the pubic auction for giving contract of the income of each of the two Degs for one year. The important fact mentioned therein is that the contract 'will be given by the managing committee of the Fakhria Chistia.' We fail to understand how this document advances the defendant's case. There is over whelming oral and documentary evidence to show that prior to the formation of the Anjuman in the year 1942, the joint property of both the sects of Khadims was managed by the unregistered committee known as Anjuman Fakhria Chistia, the members of which were not only the Syedzada Khadims, but also the Sheikhzada Khadims. If the public notice was issued on behalf of the joint body of the two sects it reasonably leads to the inference that both sects were interested in giving contract of the income of the two Degs.
14. Ex. A.9 to Ex. A 14 are again the public notices for giving contract of the income of the two Degs. They relate to the period 1933 to 1942. Ex. A 15 is the list of the bidders at the auction held on 17.4.41 forgiving contract of the income of the two Degs. No doubt all these documents contain a specific recital to the effect that the income of the two Degs is the property of the Syedzadas, but that again is an admission in favour of the Syedzadas which is inadmissible in evidence under sec 21 of the Evidence Act. The utmost that may be inferred from all these documents is that during the period from 1933 to 1942 the Syedzadas not only realised their own share in the income of the two Degs but they also realised the share of the Sheikhzadas and appropriated the same to their own use. But by simply realising and appropriating to their own use the share of others for a long time, the Syedzadas acquired no title to the same so as to extinguish the right of the Sheikhzadas. In Jalandhar Thakur v. Jharuladas A.I.R. 1914 P.C. 72, the respondent Jharuladas began appropriating for himself without any right 3i annas share of the daily Surplus income from the offerings made to a Hindu temple. Ten years after Jharuladas had begun to do so the Shebait of the temple, Bhaiji Thakur, the predecessor of the appellant Jalandhar Thakur, sued respondent Jharuladas for a declaration that he was entitled to 3 annas share of the said income. Their lordships of the Privy Council observed:
By adversely taking and appropriating to his own use share of the surplus daily income from the offerings Jharula Das acquired no title and no right to a share of that income. On each occasion upon which Jharuladas received arid wrongfully appropriated to his own use a share of the income to which the shebait was entitled, Jharuladas committed a fresh actionable, wrong in respect of which a suit could be brought against him by the shebit.
We, therefore, agree with the decision of the learned Senior Civil Judge in respect of Item No. 2 of Schedule A. As no other point was pressed before use the appeal filed by the defendant Anjumah deserves to be dismissed.
15. We now turn to the plaintiff's appeal. Learned Counsel for the plaintiffs confined his arguments only to the findings of the lower court relating to the immovable properties described in Schedule B at Items Nos. 1 to 4 and their corresponding income claimed under Items Nos. 4, 6, 8 and the second part of Items No. 9 of Schedule A The learned Senior Civil Judge held that the plaintiffs had no share in the immovable properties described in Schedule B and consequently, they were neither entitled to a decree for partition of the immovable properties nor they were entitled to half share in the income of those properties. It is not in dispute that the plaintiff's right to claim half share in the income of the immovable properties would arise only if the properties were held to be joint properties of the parties. We would, therefore, like to deal with each item of immovable property separately in order to find out whether the plaintiff have succeeded in proving their joint title to it.
Item No. 1 of Schedule B
This property is situated at Chhatri Darwaja, Ajmer. The plaintiffs produced no document to show that this property was the joint property of the parties. The oral evidence which consists of the statements of the two witnesses is neither satisfactory nor dependable. PW 1 Mohd. Abdul Qadir admitted that the construction on the property was not made in his presence. He also showed his ignorance as to when the construction was made Similarly, PW 2 Siraj Mohd. stated that he had hot come across any documentary evidence to show how the property situated at Chatri Darwaja became the property of Jami-a-Khadims, that is, both the sects of Khadims. He further admitted that the joint income arising from the immovable properties was never divided in past between the two sects of Khadims that is all the oral evidence on behalf of the plaintiffs.
16. On the defendants side, DW 1 Syed Fakruddin stated that the Syedzadas were the exclusive owners of the property situate Chhatri Darwaja and they used it for keeping their tajias. He further stated that originally the land of the Chhatri Darwaja property belonged to Mahalwala Syedzada Khadims who allowed the Syedzada Khadims to construct a building on it. DW 2 Abdul Latif also stated that the Chhatri Darwaja property was constructed by the Syedzadas. Similar are the statements of DW 3 Mohd. Ibrahim and DW Mohd. Hussain. Besides the oral evidence, the defendants Anjuman also produced several documents in support of their exclusive possession to the said property. We need not refer to those documents as we are satisfied that the plaintiffs have miserably failed to prove that the property in question was the joint property of the parties. The learned Senior Civil Judge, in our opinion, rightly held that the plaintiffs had no share in this property.
Item No. 2 of Schedule B-
17. This property is situated, at Cavendispura, Ajmer. Admittedly, this property was received in exchange of another property where, at present, Town Hall of Ajmer is to be found. The contention of the plaintiffs was that the property over which the Town Hall now stands was formerly the joint property of both the sects of Khadims and, therefore, the property in question' which was given by the Municipality, Ajmer, in exchange of that property also become the joint property of both the sects of Khadims. In support of their contention, the plaintiffs relied upon Ex. 18 and Ex. 19, tea and twenty years' settlement records respectively. Ex. 18 pertains to the year 1872 and Ex. 19 to the year 1884. Both these documents relate to the property acquired by the Municipality, Ajmer, and oh which the Town Hall now stands. They do not relate to the property in question. These documents, therefore, in hay way, prove the plaintiffs fight to title to the property in dispute. In order to establish their joint ownership, the plaintiffs were required to prove that the property in question was given to both the sects of Khadims in lieu of the property acquired. The learned Counsel for the plaintiffs drew our attention to Ex. A38 which is a resolution dated 9.1.1899 passed by the General Committee of the Municipality, Ajmer. By this resolution, the General Committee approved the suggestions of the Executive Committee. One of the suggestions of the Executive Committee, was that 'the District Magistrate be asked to move the Local Government to accord early sanction to the alienation of the triangular piece of land situated 6ri the west of the Cavendishpura Road in favour of the Khadims, Amra carpenter and certain Fakhirs in lieu of the nohra and shops etc. to be taken up for the proposed construction (Town Hall), the Khadims having verbally agreed to accept the exchange.' It would thus appear that by the time the resolution was passed the Local Government had not even accorded sanction for alienation of the land situated at Cavendishpur. In the circumstances, the mere suggestion of the Executive Committee for alienation of the Executive Committee in favour of the Khadims would not lead to the inference that the property situated on Cavendishpura Road was, in fact, alienated in favour of the Khadims of both the sects. On the contrary, the notice Ex. A/29 dated 25.16.1899 issued by the Municipal Committee, Ajmer, shows that the Syedzadas alone were asked to take delivery of the property in dispute because the property in lieu of which the property in question was given was deemed to be the property of the Syedzadas alone. It further appears from Ex. A/4 that in the year 1911 at the time of the attestation of the Khewat and jamabandhi slips, the representatives of the Syedzada Khadims clamed that the settlement record in respect of the Cavendishpura property should stand in the name of the Syedzada Kriadims. Aaiirbux and one other representing the sect of the Sheikhzada Khadim objected to the claim put-forward by the Syedzada Khadims. After recording evidence of the parties, the Assistant Settlement Officer, Ajmer, by his judgment dated 4.4.1911 (Ex. A/4) decided to record the land in the name of all the Syedzadas and disallowed the objections of the Sheikhzadas. The correctness of the aforesaid judgment was never challenged by the Sheikhzadas at any time. The defendant Anjuman further produced rent-notes Ex. A/31 to Ex. A/36 and a mortgage-deed Ex. A/37. They are all registered documents and they went to show that the Syedzadas had been dealing with this property since 1900 as its exclusive owners. Having regard to the evidence on the record, we are of the opinion that the learned Senior Civil Judge rightly held that plaintiffs had no share in this property.
Item 3 of schedule B
18. This item relates to the property situated at Tripolia Gate, Ajmer. The earliest document on which reliance was pieced on behalf of the plaintiffs is Ex. 15. It is an agreement dated 10.10.844 by which the property in question was let out to one Hussain Shah for ten years. Hussain Shah therein agreed to vacate the propeity after the expiry of the period often years provided he was paid in a (sic) sum all the expenses incurred by him on improvements. It was also mentioned therein that the property belonged to Jarni-a-Khudam, that is, the whole body of the Khadims. In the year 1916 a civil suit (No. 44 of 1916) was filed for pofsession of the propeity by certain Syedzada Khadims of Ajmer against the grandson of Hussain Shah & others. The full text of the plaint filed in that suit is found incorporated in the decide-sheet dated 19.4.1918 (Ex.6). The suit was based on the agreement dated 17.8.1911. In para No. 1 of the plaint of the said suit, it was admitted by the Syedzada Khadims that the property belonged to Jami-a-Khudam, that is, the whole body of the Khadims The text of the plaint contained in the decree-sheet (Ex. 6) is admissible under Section 35 of the Evidence Act, and the admission contained there in being self harming is admissible in evidence under Section 21 of the Evidence Act against all the Syedzadas as the plaint was filed in respect of the property in question in a representative capacity on behalf of the whole sect of the Syedzada Khadims. The admissions are not doubt rebut table, but this admission has not been rebutted by any evidence or circumstance. The Anjuman no where explained why the Syedzadas Khadims made a false statement against their own interest. The unrebutted admission, therefore, proves joint ownership of the parties.
19. It was argued on behalf of the defendant Anjuman that the Sheikhzadas had admitted exclusive ownership of the Syedzadas in respect of this property in Exs. A/56 and A/52. He further argued that Exs A/42, A/43. A/44, A/45, A/47, A/48, A/49, A/51 and A/53 went to sow that the Syedzadas alone had been realising the rents and profits of the property since 1921 and further that they had all along been asserting their exclusive ownership. The learned advocate then concluded that all these documents were sufficient to prove that the plaintiffs had no share in the property. We, however, feel it extremely difficult to agree with the learned advocate in holding that the plaintiffs had no share in the property or that long exclusive enjoyment by the Syedzadas extinguished the right of the Sheikhzadas to claim their share in the property.
20. Ex. A/56 is a resolution dated 5.7.1913 of the Committee Anjuman Fakhria Chistia (a joint body of the Syedzadas and Sheikzadas). This resolution was signed, besides the Syedzadas, by one Lal Mohammed, who represented the Sheikhzada Khadims in the Committee. It was on account of the signature of Lal Mohd. that it was argued on behalf of the defendant Anjuman that the resolution contained the admission of the plaintiffs and it was, therefore, binding on them In our opinion, that admission lost its value because it was superseded or stood rebutted by the subsequent admission made by the Syedzadas in the plaint of the civil suit No. 44 of 1916 wherein, as already stated above, they admitted the property to be joint one and belonging to all the Khadims.
21. The next resolution relied upon is Ex. A/52 dated 25.2.1921. Though this resolution was made subsequent to the filing of suit No. 44 of 1916, it is of no assistance to the defendant Anjuman as it does not bear the signature of any Sheikhzada Khadim.
22. Out of the other documents relied upon, Exs. A/43 and A/44 are public notices issued by the Syedzada Khadims for inviting bids at the auction to let out the property. The remaining documents are all rent-notes executed in favour of the Syedzada Khadims. It is true that the rent-notes as well as the public notices contain a recital to the effect that the property belonged to the Syedzidas but they are all inadmissible in evidence being admission of the Syedzidas in their own favour. The rent-notes, no doubt, go to show that the Syedzadis have been realising the income of the property since 1921 but mere realisation of the rent by the Syedzadas cannot deprive the Sheikhzadas of their share in the joint property. It is well settled that the mere non-receipt by one co owner of a share in the profits of land in physical possession of another co owner will not be sufficient to establish title by adverse possession in the absence of positive indications that the co-owner in physical possession was setting up an adverse title to the knowledge of the other co-owner. In the present case, prior to 1942 it was the joint committee of the Syedzadas and the Sheikhzadas, namely, Anjuman Fakhria Chistia, which realised the rents of the property. If the members of that committee who were mostly Syedzada Khadims secretly mentioned in the rent-notes or public notices that the property belonged exclusively to the Syedzadas, such assertion cannot rob the Sheikhzadas, unaware of that assertion, of their share in the property. Soon after the formation of the Aniuman which was constituted exclusively of the Syedzadas Khadims, the Sheikhzadas in the year 1944 instituted a suit against the Syedzada Khadims for the rendition of account in respect of the income realised by them (Syedzadas) from the joint common properties. We may also point out that the defendant Anjuman did not specifically plead adverse possession in its written statement and we are not inclined to permit the defendant Anjuman to raise the plea of adverse possession for the first time at this stage. In these circumstances, we are of the opinion that the plaintiffs have succeeded in proving their joint ownership in the property and in that case it is not disputed that the plaintiffs have got half-share in it.
Item No. 4 of Schedule B
23. This item relates to the property known as Imambara situated in Khadim Mohalla, Ajmer. On behalf of the plaintiffs, no document has been produced to show that this property was the joint property of the parties. Learned Counsel for the plaintiffs placed reliance on the written statement (Ex. 20) which was filed by the Anjuman in Suit No 73 of 1944 brought by the Sheikhzada Khadims against the Anjuman for rendition of accounts in respect of the income of the joint properties. In the plaint filed by Sheikhzadas, this Imambara property was shown at Item No. 9 in the Schedule attached to that plaint. In para No. 3 of the written statement filed by the Anjuman in that suit, it was mentioned at one place that Item No. 9 was the exclusive property of the Syedzadas and the Sheikhzadas had no right or interest whatsoever in the same. But in the same para at a later stage, it was stated that Item No. 9 belonged jointly to the Sheikhzadas and the Syedzadas. A careful perusal of the written statement (Ex. 20), as a whole, goes to show that the Anjuman denied the plaintiffs joint title to the Imambara property. The plaintiffs, therefore, cannot derive any benefit from the written statement (Ex 20) The defendant Anjuman produced Ex. A/56 which is a resolution of the Committee, namely, Anjuman Fakhria Chistia, wherein it was mentioned that the Imambara property belonged exclusively to the Syedzidas. As already referred to above, this resolution was signed by Lal Mohd who represented the Sheikhzadas in the said Committee, Since the admission of Lal Mohd contained in Ex. A/56 has not been rebutted by any evidence or circumstance, the plaintiffs are bound by it. The learned Senior Civil Judge, was, therefore, right in holding that the plaintiffs failed to prove their joint ownership to the property.
24. That disposes of the plaintiffs' appeal as no other point was pressed before us.
25. Before parting with the case, we may point out that the learned Senior Civil Judge was not justified in ordering that the plaintiffs Sheikhzidas and the defendant Anjuman shall realise pint income of the common properties every alternate year. None of the parties is happy about this arrangement, as it might create difficulties in actual working. We also find no justification for passing such a decree.
26 .In the result we dismiss the defendant's appeal but accept the plaintiff's appeal in part and modify the decree passed by the lower court in the following manner:
1. A preliminary decree for partition is passed in favour of the plaintiffs and against the defendant Anjuman to the effect that the plaintiffs have got half share in the immovable property described at Item No. 3 of Schedule B attached to the plaint. The trial court shall appoint a a commissioner in order to effect partition by metes and bounds.
2. A declaratory decree, is passed in favour of the plaintiffs and against the defendant Anjuman that the plaintiffs shall be entitled to half share of the income, the details of which are contained in Items Nos. 1, 2, 3, 5, 8, 10, 12 and the first part of Item No. 9 of Schedule A attached to the plaint.
3. The rest of the plaintiffs' suit is dismissed.
27. Having regard to the circumstances of the case, we leave the parties to bear their own costs throughout.