Letters Patent Appeal No.1224 of 1998 ****** Against the judgment dated 25.06.1998 passed in First Appeal No.785 of 1977 by a learned Single Judge. ****** Ghulam Mustafa Son of Md. Sulaiman, Resident of Milki Mohalla, P.O. & P.S. Arrah, District Bhojpur. . . . . (Defendant no.4-Appellant) .... .... Appellant. Versus 1. Bibi Zinat Fatma 2. Bibi Rahmat Fatma. Both daughters of Late Shah Amanullah, Resident of Village- Chotki Makhdoompur, P.O. Chauki Hassan, P.S. Brahsa, District- Saran. . . . (Plaintiff-Respondent) . . . . Respondent 1st Set. 3. Bibi Farhat Jahan Begum D/o Sayed Zeyauddin Haider, wife of Sayed Jamiluddin Haider, resident of Mohalla Korha, P.S. Makhdumpur, District- Gaya. 4. Bibi Asma Khatoon, W/o Md. Ali Hussain, Resident of Milki Mohalla, P.O. & P.S. Arrah, District- Bhojpur. . . . . (Defendant 1st Set-Respondent). . . Respondent 2nd set. 5. Bibi Shah Jahan W/o Late Abdul Rashid, Resident of Chawk Masjid, P.O. & P.S. Arrah, District- Bhojpur. 6. Husna Khatoon, Wife of Md. Israil. 7. Rabiya Khatoon Wife of Md. Mustafa. Both residents of Lal Kothi, At & P.S. Danapur, District- Patna. . . . (Defendant 2nd Set- Respondent). . . . Respondent 3rd Set. ================================================== For the Appellant : Mr. A. B. Ojha, Mr. Bharat Bhuyshan, Advs. For the Respondent nos. 1 to 4 : Mr. Anil Singh, Advocate. ================================================== P R E S E N T THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON’BLE MR. JUSTICE SAMARENDRA PRATAP SINGH ------------------ S. P. Singh, J. The instant appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred against the judgment dated 25.06.1998, passed by learned Single Judge in First Appeal No. 785 of 1977, heard analogous with First Appeal No.791 of 1977, affirming the judgment and decree, dated 25.06.1977, passed by Shri Jugal Kishore Prasad, 3rd Additional Sub-Judge, Arrah, in Title Suit no. 89 of 1970 / 188 of 1974, whereby the suit has been decreed against the contesting defendants. 2 2. The plaintiffs, who are respondents 1st set, filed Title suit no. 89 of 1970 claiming the following reliefs: (i) That it be declared that the plaintiffs are entitled to a share of 2 ½ annas and half in the house described in S.P. No. 5382 and are entitled to get allotment of their share in both the house carved out separately. (ii) That the share of the plaintiff in the house in suit be separately allotted by deputation of a commissioner. (iii) Any other relief or reliefs to which the plaintiff may be entitled in the eye of law be granted to them. (iv) That decree for the cost of the suit be passed in favour of the plaintiff. 3. The appellant in this appeal is defendant no.4 in the suit. Respondent no.3 and her father are defendant nos. 1 and 2, and respondent no.4, Bibi Asma Khatoon, is defendant no.3. The husband of respondent no.5, namely, late Abdul Rashid, was defendant no.5 in the suit. 4. The plaintiff’s case in short is that the suit houses over plot no.5382, bearing khata no. 669, in Milki Mohalla in the township of Arrah were ancestral properties of the plaintiffs and defendants 1st set. The properties belonged to one Moulvi Abdul Quadir through whom the plaintiffs are claiming. Abdul Quadir died leaving behind his wife, Taiba Khatoon, three daughters namely Bibi Zakia, Bibi Rashida and Bibi Jamila and one lone son, namely Md. Amin. The plaintiffs nos. 1, 2 and 3 are husband and daughters of Bibi Rashida respectively. Defendant nos. 1 and 2 in the suit are husband and daughter of Bibi Jakia, another daughter of Abdul Quadir. Taiba Khatoon, wife of late Abdul Quadir and Md. Amin made two transactions. One was in form of hand note executed in favour of H.K. Jain in respect of a double-storeyed building bearing holding no.898 and 899, and the 3 other one in form of mortgage, made in favour of Fazlur Rahman in respect of the single-storeyed house bearing holding no. 900 and 901. Defendant no.4, who purchased a double-storeyed house in auction sale for realization of amount mentioned in hand-note, dispossessed Fazlur Rahman, who filed Title Suit no. 9/25 of 1951/53. They pleaded that the single-storeyed building bearing holding no.900 and 901, on plot no. 5382, was neither auction-sold, nor the same was purchased by defendant no.4, who is the appellant in this Court. The suit was decreed in favour of Fazlur Rahman, holding that the house bearing holding no.900 and 901 was not sold in auction-sale, and defendant no.4 did not acquire any right over the same. 5. The appeal against decree obtained by Fazlur Rahman was dismissed. A Second Appeal was carried to this Court, which was withdrawn by the appellant in terms of compromise petition, wherein he was permitted to pay rent at the rate of Rs. 15/- per month. 6. The case of defendant no.2 is that the suit property belonged to Md. Ibrahim, father of Abdur Quadir. Md. Ibrahim, who had two sons, namely, Moulvi Mohammad and Abdul Quadir, and daughter Bibi Azam, who had only one son namely, Md. Noman. It is the case of defendant no.2 that Bibi Hazra, wife of Moulvi Mohammad and Md. Noman, son of Bibi Azam, sold their shares to Ali Hussain, husband of defendant no.3 (Bibi Ashama Khatoon) on 07.09.1951 vide Ext.-B-1. Ali Hussain gifted the purchased property to his wife as Dain Mehar on 09.11.1964 vide Ext.C-1. The case of appellant (defendant no.4) too is that the suit property belonged to Abdul Quadir exclusively, and not to his father, and purchased the entire suit premises in auction sale in execution case no. 2099 of 1947. He submits that the mortgage made by Taiba Khatoon in favour of Fazlur Rahman was also on behalf of her minor children. 4 7. On consideration of materials on record, both the trial court and appellate court came to a finding that property belonged to one Abdul Quadir and not to his father Md. Ibrahim, as claimed by defendant no.2. It has been the case of both the plaintiff and the appellant that the suit properties belonged to Abdul Quadir, and not to his father. The two courts also came to the finding that the two transactions made by Taiba Khatoon and her son, Md. Amin, was in respect of separate portions of the premises standing on plot no. 5382. The trial court also came to the finding that defendant no.4 purchased only the premises in respect of which hand- note was executed in favour of H.K. Jain and not in respect to the single-storeyed house, which was mortgaged. 8. Mr. Awadh Bihari Ojha, learned counsel appearing for the appellant, submits that the entire suit premises was purchased by defendant no.4. He submits that Taiba Khatoon, wife of Abdul Quadir, executed hand-note in favour of H.K. Jain on behalf of her minor children as well. He further submits that the suit premises was purchased by defendant no.4 in auction sale and he had admittedly dispossessed Fazlur Rahman. He submits that he with-drew Second Appeal no. 522 of 1958, on 07.02.1967, in view of compromise petition. He submits that he had deposited extra amount in execution case, which was withdrawn by defendant no.1 in his own capacity as well as Mukhtar Aam of the remaining heirs of Abdul Quadir. He next submits that on account of default in payment of rent, a certificate case proceeding was initiated in which the suit premises was put on sale, and was purchased by defendant no.5. He submits that he is not hand in gloves with defendant no.5, and the certificate case was not collusive, as claimed by the plaintiffs. 9. We have heard the learned counsel for the appellant as well as learned counsel appearing for the respondents and perused the record. It would appear 5 from the pleadings and documents on record that two houses existed on survey plot no.5382, of khata no.669, in Muaza Milki Mohalla in the township of Ara. One of the houses was single-storeyed bearing holding no.900 and 901, and the other house was double-storeyed, bearing holding no.898 and 899. The hand-note was executed in favour of H. K. Jain in respect of double-storeyed house, pertaining to holding no.898 and 899. As money promised in the hand-note was not paid back by Bibi Taiba Khatoon and her son Md. Amin, a money suit was filed by H. K. Jain, which was decreed. Subsequently in Execution case no.2099 of 1947, the property under the hand note was auctioned, which was purchased by defendant no.4. It is relevant to record that the house that was mortgaged by Bibi Taiba Khatoon and her son, Md. Amin, was distinct and different than the premises in respect of which hand-note was executed. The mortgaged premises was a single-storeyed building, bearing a separate holding nos. 900 and 901. It is thus apparent that defendant no.4 purchased the double-storeyed house standing on holding no.898 and 899, and not any portion of single-storeyed house, bearing holding no.900 and 901. Defendant no.4 cannot as such stake claim in respect of single-storeyed house, mortgaged in favour of Fazlur Rahman, standing on holding no.900 and 901. 10. Whether the appellant purchased the entire double-storeyed building bearing holding no. 898 and 899, or only the share of Bibi Taiba Khatoon and her son Md. Amin, would be the next issue. It is not in dispute that the hand-note was executed by Taiba Khatoon and her son, Md. Amin, and not by any of the three daughters. It is not the case of the appellant here, who was defendant no.4 in the suit, that the hand-note executed by Taiba Khatoon and her son Md. Amin specifically, stated that the same was being executed on her behalf and that of her minor daughters. In absence of any such assertion, defendant no.4 acquired the 6 interest and share of Taiba Khatoon and her son, Md. Amin, and not of any of the three minor daughters from whom the plaintiffs and defendant nos. 1 and 2 are claiming as their legal heirs. 11. Admittedly the plaintiffs (Respondents 1st set), and defendant nos. 1 and 2, are heirs from two daughters of Taiba Khatoon. Furthermore, Taiba Khatoon could not have executed deed or interest of her minor daughters or the son. A mother under Mohamadan Law is not a guardian of her minor children. We uphold the finding of the learned trial court that defendant no.4 could have only purchased the shares of Taiba Khatoon and Md. Amin, who had executed hand- note in respect of double-storeyed house alone, bearing holding no.898 and 899. The trial court and the appellate court thus rightly apportioned 5/6 pies in favour of defendant no.4 in respect of double-storeyed building bearing holding no. 898 and 899. Defendant no.4 would not be getting any share in the single-storeyed house, standing on holding no.900 and 901. The plaintiffs, being the heirs of late Abdul Quadir, would be entitled to the extent of her share in the single-storeyed house standing on holding no.900 and 901. It is relevant to state here that the plaintiff in the plaint stated that the suit premises belonged to Abdul Quadir. However, in the evidence, one of the plaintiffs (P.W.6) admitted that the house originally belonged to Md. Ibrahim, who had two sons and a daughter, Bibi Azama, defendant no.2. Abdul Quadir, the husband of Bibi Jakia, was one of the two sons of late Md. Ibrahim. Defendant no.2 stated that Bibi Hazra, after death of her husband Moulvi Mohammad, and one Md. Noman, son of Bibi Azama, sold their share to Ali Hussain, who in turn gifted the same as Dain Mehar to his wife Bibi Azama, who is defendant no.3 in the suit. The admission of the plaintiff may benefit Ali Hussain or Bibi Azama (defendant no.3), who purchased the share of Bibi Hazra and Md. Noman, but it would not help defendant no.4 in any manner, 7 as he purchased a different property in auction sale. He would be entitled only to the share of Taiba Khatoon and her son, Md. Amin, who executed the hand-note in respect of only double-storeyed house standing on holding no.898 and 899. The admission of the plaintiff can be used against the interest of the plaintiffs themselves vis-à-vis defendant no.3. The trial court, in the circumstances, rightly granted 9/7 pies to the share of defendant no.3 in holding no.900 and 901 consisting of single-storeyed house. Besides this, the mortgagee Fazlur Rahman, on being dispossessed by the appellant filed Title Suit no.9/25 of 1951/53, which was decreed on 30.11.1956, with a clear finding that the house, which was mortgaged to him was not auction-sold in Execution of money decree filed by H.K. Jain for non-payment of money by Taiba Khatoon and her son Md. Amin, as promised in the hand note. The trial court held that the boundaries of the suit house (double-storeyed standing on holding nos. 898 and 899), which was auction-sold and purchased by defendant no.4 and suit house (single-storeyed standing on holding no.900 and 901), which was mortgaged to Fazlur Rahman had separate and distinct boundaries. The appellant has put much emphasis on the compromise decree filed in Second Appeal No.522 of 1958 preferred by him. It is submitted that the second appeal, which was decreed on 07.02.1967 in terms of compromise petition, would nullify the decree passed in Title suit no.9/25 of 1951/53 preferred by the mortgagee Fazlur Rahman, which was upheld in appeal. The terms of compromise in no way would be of any help to the appellant so far as his claim to a larger share is concerned. The appellant in the compromise affidavit accepted to continue to pay Rs.15/- per month in accordance with the order of the High Court and also prayed for dismissal of second appeal, thus accepting the judgment passed by the trial court and the appellant court. Furthermore, the question of plea of adverse possession raised by the appellant 8 has no force because he had initially claimed to be in possession, as a title holder on the basis of his auction purchase. It is well settled that the claim of title and adverse possession cannot go together. Furthermore, there is no pleading regarding adverse possession in written statement rather he himself admitted that his possession has been interrupted by defendant no.5 Adbul Rashid, who purchased the suit premises and came in possession pursuant to a decree. 12. The shares apportioned by the learned trial court, and affirmed by the learned appellate court, do not suffer from any illegality. The appellant, as per the compromise petition in Second Appeal No. 522 of 1958, would be only entitled to continue as a tenant in the double-storeyed house standing on plot no.5382, as per his acceptance to continue to pay Rs.15/- per month. The judgment of the two courts are modified to that extent indicated above. (S. P. Singh, J.) I Agree S. K. Katriar, J. (S. K. Katriar, J.) Patna High Court, Dated, 20th May, 2011. Uday/NAFR