1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.945 OF 2006. 1. Jalim S/o Uttamsing Bhais Age : 40 years, Occ : Agri., R/o Sonak Pimpalgaon, Tq. Ambad, Dist. Jalna. 2. Kisan S/o Uttamsing Bhais Age : 51 years, Occ : Agri., R/o As above. 3. Govindsing S/o Bapusing Bhais Age : 73 years, Occ : Agri., R/o As above. Since deceased per Lrs. a) Muktabai W/o Vofindsing Bhais, Age : 65 years, Occ : Household, R/o Sonak Pimpalgaon, Tq. Ambad, Dist. Jalna. b) Karbhari S/o Govindsing Bhais Age : 42 years, Occ : Agri., R/o As above. c) Prayagbai W/o Laxmansing Parhar, Age : 38 years, Occ : Household, R/o Ghungardi-Hadgaon, Tq. Ambad, Dist.Jalna. d) Babasaheb S/o Govindsing Bhais Age : 35 years, Occ : Agri., Dist. Jalna. Legal heir’s of appellant no.3 are brought on record as per order passed by this Hon’ble Court in Civil Application St. No.18342/07 dtd.26.3.08). 2 4. Ajabsing S/o Bapusing Bhais Age : 67 years, Occ : Agri., R/o As above. 5. Shaiku S/o Babaji Kawale Since deceased per L.Rs. a) Darubai W/o Shaiku Kawale Age : 70 years, Occ : Agri., R/o Sonak Pimpalgaon, Tq. Ambad, Dist. Jalna. b) Gangabai W/o Sheshrao Pangare Age : 32 years, Occ : Agri., R/o Wadi Lasura, Tq. Ambad, Dist. Jalna. c) Ramkishan S/o Shaiku Kawale Age : 30 years, Occ : Agri., R/o Sonak Pimpalgaon, Tq. Ambad, Dist. Jalna. d) Babasaheb S/o Shaiku Kawale (Defendant no.6 died), His name be treated as deleted). 6. Babasaheb S/o Shaiku Kawale (Since deceased-His name be treated as deleted.) 7. Mathurabai W/o Uttamsingh Age : 72 years, Occ : Agri., R/o Sonak Pimpalgaon, Tq. Ambad, Dist. Jalna. 8. Sarasbai W/o Uttam Singh Since deceased, Her, L.Rs. are already on record as appellants nos.1 and 2). 9. Aruna W/o Kalyanshingh Rajput Age : 35 years, Occ : Agri., R/o Sonak Pimpalgaon, Tq. Ambad, 3 Dist. Jalna. 10. Annapurna W/o Santarsingh Age : 40 years, Occ & R/o As above. APPELLANTS VERSUS 1. Habib Abdulla S/o Habib Idrus, Age : 65 years, Occ : Agri., R/o Sonak Pimpalgaon, Tq. Ambad, Dist. Jalna. 2. Habib Bubakar Bin Ahmed, Age : 59 years, Occ : Agri., R/o Ambad, Dist.Jalna. 3. Sharifa Mariyam W/o Habib Amar, Since deceased per L.Rs.:- a) Habib Salam S/o Habib Idrus, Age : 55 years, Occ : Agri., R/o Banemiya Dargah, Eastern, Side Bukkalguda-Shahganj, Aurangabad. b) Habib Saleh S/o. Habib Idrus, Age : 50 years, Occ : Service, R/o As above. c) Shaikha Sarifa W/o Habib Abdul Age : 55 years, Occ : Agri., d) Habib Hasan S/o Bin Ahmed Names not added as per order below Ex.59 and 21. RESPONDENTS ------------------------------------------------------------------------------------------------------- Mr.Santosh Bora, Advocate for the appellants. Mr.R.M. Deshmukh, Advocate for the Respondent No.1. ------------------------------------------------------------------------------------------------------ 4 (CORAM : R.K. DESHPANDE, J.) Date of Judgment Reserved 08th October, 2009. Date of Judgment Pronouncement 14th October, 2009 -------------------------------------------------------------------------- ORAL JUDGMENT : This appeal is by the original defendants, who have lost in both the Courts below and ultimately, the Judgment and decree passed by the Civil Judge, Junior Division, Ambad in Regular Civil Suit No.98/1992 for declaration of ownership, title and possession of the suit property in favour of the plaintiffs, is maintained. The parties to this appeal shall be referred to, as per their original status as `plaintiffs and defendants’. 2. The facts leading to the case are as under:- The respondents herein are the original plaintiffs and some of them are the legal representatives of the original plaintiffs. The suit for declaration of title over the suit property and its recovery of possession from the defendants was filed by the plaintiff no.1-Habib Abdulla S/o Habib Idrus. The suit property is the land bearing gut no.183 (old survey no.100/1 and 100/2), admeasuring 8 Acres and 8 gunthas, situated at Sonak Pimpalgaon, Tah.Ambad, Dist. Jalna. The said suit land was undisputedly owned and possessed by late Habib Hasan Bin Ahmed, who died on 05.09.1964. The plaintiff Habib Abdulla is the son of one Habib 5 Idrus Mariyam, a pre-deceased son of Habib Hasan, who died in the year 1963. The case of the plaintiffs was that the deceased Habib Hasan S/o Abdulla had left two other heirs namely; Habib Ahmed S/o Habib Hasan and Mariayam Sharifa, being his son and daughter, respectively. The said Habib Ahmed S/o Habib Hasan, died in the year 1982, leaving behind him Habib Bubakar and Shekhabai as his heirs and legal representatives, being his son and widow respectively. The plaintiff no.1 alleged in his suit, which was registered as Regular civil Suit No.98/1992, that during the course of family partition of the suit land, the huge landed property had fallen to the share of the deceased-Habib Idrus S/o Habib Hasan, despite the fact that the suit lands stood in the name of deceased Habib Hasan, till the date of filing of suit. The plaintiff further alleged that Mariayam Sharifa and Habib Bubakar have surrendered their share by filing affidavits in favour of the plaintiffs and hence, they were not made parties to the suit. 3. The plaintiffs further alleged that he became the absolute owner and title holder of the suit land after the death of his father in 1963 and grand-father on 05.09.1964. He further alleged that in the summer of 1983, the defendants forcibly occupied the suit land, taking advantage of the fact that the plaintiff was residing far away from suit property. It was further alleged that the defendants claimed themselves to be the protected tenants under section 8 of the Hyderabad Tenancy Act and ultimately, the 6 said proceedings resulted against the defendants and they are the trespassers over the suit land. 4. On 12.01.1995, the plaintiff filed an application Exhibit-24 for amendment of plaint and adding Habib Bubakar S/o Habib Ahmed and Shekhabai, the son and widow of Habib Ahmed, the uncle of the plaintiff. On 18.01.1995, the Trial Court passed an order allowing the said application and permitting the aforesaid heirs of Habib Ahmed as plaintiff nos.2 and 3. The plaintiff was also filed another application Exhibit-50 for adding Sharifa Mariayam, the daughter of Habib Hasan, as plaintiff no.4 and the same was also allowed by an order dated 09.04.1998. The plaintiff amended the plaint by adding the para no.7A to the effect that in case if the plaintiff no.1 is not held entitled for the relief of possession and also declaration of title, then the plaintiff nos.2 and 4 be declared as owners and they be put in possession of the said property. Similarly, the prayer clause was also added to the effect that if the plaintiff no.1 is not declared owner of the suit land, the plaintiff nos.2 to 4 be declared as the owners of the suit property and they be put in possession of the same. 5. It seems that the aforesaid amendment was filed by the plaintiff in response to the objection raised by defendants in their written statement that after the death of Habib Hasan, Habib Ahmed, the uncle of 7 plaintiff and Mariayam Sharifa, the daughter of the deceased, were the only legal representatives of the deceased Habib Hasan. It was further the objection raised that Habib Ahmed and Mariayam Sharifa are the sons and daughters of deceased and they are the legal representatives of the deceased, have denied that the plaintiff no.1 is heir of Habib Hasan and it was the stand taken that the plaintiff is the son of Habib Idrus, who is predeceased son of Habib Hasan and has therefore no right, title and interest in the suit property. The defendants admitted that they had claimed tenancy rights over the suit land and the said proceedings resulted against the defendants. The defendants alleged that since the year 1967, Uttamsingh Bapusingh, the father of the defendants was in possession of the suit land. The defendants therefore claimed the title over the suit land by way of adverse possession. 6. The Trial Court framed the issues. The issue no.1 was whether, the plaintiffs prove that the suit land was exclusively allotted to the share of deceased Habib Idrus S/o Habib Hasan in family partition?, was answered in negative. The issue no.2 was whether, the plaintiff prove that Mariayam Sharifa, the daughter of Habib Ahmed, Shekhabai his wife and Habib Bubakar, his son have relinquished their respective shares in the suit land by executing affidavits in favour of the plaintiff no.1 and same are valid ? The said issue was also answered in negative. The third issue was 8 whether, the plaintiff prove that he is exclusive owner of the suit land or, alternatively whether plaintiff prove that they are the owners of the suit field? It was answered in affirmative. The fourth issue was whether, the plaintiff prove that father of defendant nos.1 and 2, the deceased- Uttamsingh illegally dispossessed the plaintiffs from the suit land in the summer season of the year 1983 ?, was also answered in affirmative. The claim of the defendants that they have perfected the title over the suit property by way of adverse possession, was negative. 7. The Appellate Court by its judgment and order dated 27th June, 2006 dismissed the regular civil appeal no.102/1999 filed by the defendants. The Appellate Court framed the points for determination. The point no.2 was whether, the plaintiffs prove their ownership regarding the suit property, it was answered in affirmative and the point no.1 whether, it is proved that the father of the defendant nos.1 and 2 and the defendants have perfected their title over the property by way of adverse possession, was answered in negative. Apart from this, the Appellate Court had framed other points for determination and same were decided but decision on the same is not assailed in this appeal and therefore, it is not necessary to refer to the same. 8. This Court admitted the instant appeal on 26.02.2008 and the 9 substantial questions of law as formulated in ground nos.4, 5, 6 and 13 of the memo of appeal, were framed. Shri.Santosh Bora, the learned Counsel appearing for the appellants states that all these questions of law, as are framed, are interlinked and the substantial questions of law arising in the present second appeal can be reformulated as under :- I) Whether, in view of the provisions of section 52 of the Mohammedan Law, the plaintiff no.1 was entitled to maintain the suit as was framed and filed on 13.04.1992 ? II) Whether, in absence of specific pleadings in respect of the rights, title and interest of the plaintiff nos.3 and 4, the Courts below were right in granting the decree for declaration and possession of the suit property? 8. With the assistance of the learned Counsels appearing for both the parties, I have gone through the pleadings and evidence available on record as well as the findings recorded by the Courts below. The theory of the plaintiff no.1 as was put up initially in the plaint regarding the partition of the suit property during the life time of his grand-father and allotment of lands to the share of the father of the plaintiff no.1 and further the relinquishment of shares by the plaintiff nos.2 to 4 in favour of the plaintiff no.1 has been negatived by both the Courts below and no arguments are raised to reopen the said findings on any substantial question of law. Hence, the same are treated as final. Shri.Deshmukh, the 10 learned Counsel for the plaintiffs has also conceded to the position of law that under the Mohammedan Law that the plaintiff no.1 has no birth right to get the share in the ancestral property as he is the son of predeceased son of Habib Hasan, the owner of the property in view of section 52 of the Mohammedan Law. Both the Courts below have also held that the plaintiff no.1 can not claim any right to the property as his father died earlier to the death of his grand-father, who shown to be the owner of the property. However, the claim at the instance of the plaintiff nos.2 to 4 was held to be maintainable in view of the provisions of section 61 of the Mohammedan Law. The suit has thus been decreed by the Trial Court by its judgment and decree dated 14.09.1999 holding the plaintiffs as the owners and title holders of the suit property and directing the defendants to deliver the vacant possession of the suit land to the plaintiffs. The Appellate Court by its judgment and order dated 27.06.2006 dismissed the appeal. 9. Shri.Bora, the learned Counsel for the defendants conceded to the position that the defendants have failed to establish their claim in respect of the adverse possession of the suit land. He has further conceded that the claim of the defendants as protected tenant under section 8 of the Hyderabad Tenancy and Agricultural Lands Act has also been negatived and same does not at all survive. Shri.Bora, the learned Counsel appearing for the defendants, however submitted that the plaintiffs must establish 11 their right, title and interest over the suit property and substantiate the claim for possession. According to Shri.Bora merely because the defendants are in unauthorised occupation and possession of the suit land, they can not be evicted unless the plaintiffs establish their title and right to get possession over the suit property. Shri.Bora contended that, the plaintiffs having conceded to the position that the claim of the plaintiff no. 1 would not maintainable in view of section 52 of the Mohammedan Law, the suit was liable to be dismissed, as there is no foundation in the pleadings from the claim of the plaintiff nos.2 to 4. 10. In view of the fact that the plaintiffs have conceded to the position of law as emerging from the provisions of section 52 of the Mohammedan Law, the findings of both the Courts below that the instant suit at the instance of plaintiff no.1 was not maintainable stands confirmed. On the aspects of the pleadings, if the avernments made in the plaint and reliefs claimed are read as whole, it makes out a case that the plaintiff nos.2 to 4 are entitled to relief of declaration of ownership and possession of the suit property. It is significant to note that such amendment to the plaint necessitated on account of stand taken by the defendants in their written statement at Exhibit-10. The defendants have in response to the avernments made in para no.2 of the plaint, denied the right of the plaintiff no.1 to claim ownership and possession of the suit 12 land as legal representative of deceased Habib Hasan. It is further specific stand of the defendants in their written statement that after the death of Habib Hasan on 05.09.1964, Habib Ahmed, the uncle of the plaintiff and Mariayam Sharifa, the daughter of the deceased, were the only heirs of the deceased Hasan. It was thus admitted that Habib Ahmed and Mariayam Sharifa were the heirs of the deceased Habib Hasan. It was also a specific stand taken in the written statement that Habib Ahmed died in the year 1982 leaving behind his son Habib Bubakar, wife Shekhabi and daughter Munna Sharifa, as the legal heirs of the deceased. It is further stand taken by the defendants in their written statement that Uttamsingh Bapusingh (father of defendants) is in possession of the suit land since 1967 adversely to the owner i.e. Habib Ahmed, Mariayam Sharifa, the legal representatives of Habib Hasan and the deceased-Uttamsingh get title by adverse possession against the true owner and after his demise, the defendant nos.1, 2, 7, 8, 9 and 10. 11. The defendant nos.1 to 10 submitted their additional written statement (Exhibit-34) on 14.11.1995. In the said additional written statement, the defendants took up a stand that the original owner Habib Hasan S/o Abdulla died in the year 1964 and after his death, he has the only one son Habib Ahmed who died in the year 1982. It is further stated that he has daughter by name Mariayam Sharifa w/o Habib Amar and they 13 are the only heirs of Habib Hasan. It is further stated that father of the plaintiff no.1 died during life time of Habib Hasan and hence the plaintiff no.1 had no right in property of the deceased Hasan. In view of the aforesaid stand which is taken in written statement in response to which an amendment to the plaint is made, the objection regarding the lack of pleadings in the plaint does not at all survive. The objection regarding lack of pleadings, was also not raised on earlier occasion. Hence cannot now be permitted to be raised. 12. In the result, so called substantial question of law regarding pleading, does not at all survive and the instant appeal is therefore dismissed with no order as to costs. 13. At this stage, the learned Counsel appearing for the appellant Shri.Deshpande prays for continuation of interim order dated 26.02.2008 for a period of 8 weeks from today. The Trial Court had passed the decree for delivery of possession of the suit properties to the plaintiffs, after removing superstructures, standing thereon. This order was confirmed in appeal by the Appellate Court. The instant appeal is dismissed. Shri.Deshpande, the learned Counsel appearing for the appellant states that this Court had passed an order on 26th February, 2008, subject to condition of depositing amount of Rs.5,000/-, which he states, that has 14 been deposited. He further states that the amount, as was directed by this Court from time to time, has also been deposited in this Court. The learned Counsel prays for the continuation of the interim order for a period of 8 weeks. The said request is accepted. The interim order passed by this Court, on 26.02.2008, shall continue for a period of 8 weeks from today, after expirty of which, the same shall stand, automatically vacated. (R. K. DESHPANDE ) JUDGE GAS/sa945.06(1)