ABDUL GHANI Vs. KHAMHRUNNISA

JUDGEMENT

(1.) THIS regular second appeal is filed to set -aside the judgment and decree dated 27.7.1998 in O.S.No.97/1992 on the file of Addl. Civil Judge(Jr.Dn.) & JMFC, Pavagada and to set -aside the judgment and decree in R.A.No.120/1998 dated 3.8.2006 on the file of Civil Judge(Sr.Dn.), Madhugiri.

(2.) THE appellants were the defendants in O.S.No.97/1992 on the file of Civil Judge(Jr.Dn.) and JMFC, Pavagada and respondent No.1 was the plaintiff. The plaintiff filed a suit for partition and separate possession of her 1/6th share in the suit schedule properties. It is the case of the plaintiff that plaintiff and defendants are sunni muslims governed by Mohammedan Law. The suit schedule properties originally belonged to the father of the plaintiff and defendant Nos.1 and 2. The plaintiff and defendants are tenants in common and they are in common enjoyment and possession of the suit schedule properties. After the death of their father, plaintiff and defendant Nos.1 and 2 succeeded to the properties of their father Abu Sab, who died about 8 to 9 years prior to the filing of the suit. The liabilities fixed under the suit schedule properties have been discharged fully from out of the estate of the deceased. On such being the case, when the plaintiff demanded her share in the suit schedule properties from defendant Nos.1 and 2, left behind by her father, defendants assured to allot her share in her favour. But, ultimately, they declined. Therefore, the plaintiff filed a suit for partition and separate possession of her 1/6th share in the suit schedule properties. It was resisted by the defendants by filing their written statement. It was contended in the written statement that plaintiff and the defendants are enjoying the properties as tenants in common, though they have admitted that the plaintiff is their sister and that there were properties belonging to their father Abu Sab and that they are governed by Mahommedan Law, the defendants have denied that the plaintiff is entitled for share in the suit schedule properties left behind by Abu Sab. They have contended that their father died in the year 1981, they are in exclusive possession and enjoyment of the suit schedule properties. Further, they contended that there was division by way of Palupatti dated 29.6.1977, under which the suit schedule properties were fallen to the share of the defendants and that at the time of partition, plaintiff never claimed any share, if any. On the other hand, she relinquished her right and now she cannot claim any right in the suit schedule properties. It was further contended that the claim of the plaintiff is barred by law of limitation, apart from contending that they have perfected their right to the suit schedule properties by adverse possession since they are in enjoyment of suit schedule properties openly, peacefully to the knowledge of the plaintiff and all persons of the locality adverse to the interest of the plaintiff. For all these reasons, defendants sought for dismissal of the suit.

(3.) PLEADINGS gave rise to the following issues: -