ABDUL KALAM Vs. KHATOON BEGUM

JUDGEMENT

(1.) THE challenge by means of this Regular Second Appeal is to the impugned judgment of the Appellate Court dated 27.1.2011, and by which judgment, the Appellate Court allowed the appeal of the respondent/plaintiff against the judgment of the first court dated 28.2.2002. By the judgment dated 28.2.2002, the first court had dismissed the suit for possession filed by the respondent/plaintiff. THE Appellate Court, by the impugned judgment dated 27.1.2011 has passed a decree for possession with respect to the subject property being the roof of the premises no. 7191, Gali Garhiya, Quresh Nagar, Sadar Bazar, Delhi (in short the subject property?).

(2.) THE facts of the case are that the subject property was given by the Ministry of Rehabilitation in tenancy to one Sh. Alla Bux. After the death of Sh. Alla Bux, admittedly, the property came in the co-ownership/co-tenancy of his two sons, namely, Sh. Abdul Salam and Sh. Ali Hasan. Respondent/plaintiff is the widow of the son Sh. Ali Hasan and the appellant/defendant is the son of the other son Sh. Abdul Salam. THE ground floor of the property is constructed upon and the same has been divided as regards possession and enjoyment between the appellant/defendant and the respondent/plaintiff. THE parties are, therefore, undisputedly in possession and enjoyment of these respective portions. THE dispute is with respect to the terrace floor above the ground floor of the subject property. THE respondent/plaintiff filed a suit for permanent injunction on the ground that she apprehended that the appellant/defendant may dispossess her from the terrace of the property and therefore, subject suit came to be filed for permanent injunction. During the pendency of the suit, a Local Commissioner was appointed and who found that the appellant/defendant was in possession of the terrace. This finding of possession of the terrace of the appellant/defendant was simply on the ground that the goods of the appellant/defendant were found on the terrace. THE respondent/plaintiff thereafter converted the suit from the suit for injunction to a suit claiming possession of terrace, and which suit was filed under Section 6 of the Specific Relief Act, 1963 alleging that the respondent/plaintiff had been dispossessed. THE appellant/defendant contested the suit on the ground that he was always in possession of the roof and therefore, the suit for possession, much less under Section 6 of the Specific Relief Act, 1963, was not maintainable. THE relationship of the parties and the fact that each branch was a co-tenant under the Ministry of Rehabilitation was not disputed by either of the parties in the courts below.

(3.) THE first Appellate Court allowed the appeal of the respondent/plaintiff by the impugned judgment and held that a co-owner is always deemed to be in possession and therefore, it was held that the trial court erred in holding that the respondent/plaintiff was not in possession of the terrace. THE relevant observations and findings of the first Appellate Court are contained in para 8 of the impugned judgment dated 27.01.2011, which reads as under:- 8. In this case 8 issues were framed. Issues No. 1 to 6 were decided in favour of the plaintiff and against the defendant and there is no cross objection/cross appeal against finding of these issues. Hences finding on these issues are hereby affirmed. Issue No. 7 is to the following effect: - Whether the plaintiff is entitled to relief sought? OPP. Issue No. 8 was relief. Issue No. 7 was decided against the plaintiff and in favour of defendant and it was held that plaintiff failed to prove its possession within preceding 6 months from the date of dispossession and defendant was in possession of the suit property. Hence plaintiff was not entitled to any relief. THE suit property is roof of the premises in which father-in-law of the plaintiff and grand-father of defendant was tenant. THE plaintiff is admittedly wife of deceased brother of the defendant's father and Ld. Trial court has held during the course of judgment that plaintiff has locus standi to file the suit being entitled to half of the tenanted premises. Meaning thereby she was co-tenant and was in co-possession. While deciding the issue No. 7 the Ld. Trial court lost sight of the law that every co-sharer is deemed to be in possession of each piece and each inch of land and possession of one co-sharer will be deemed to be the possession on behalf of others. Admittedly, on the ground floor she was entitled to half share as tenant and roof was part of share holding. THE Ld. Trial court has dismissed the testimony and the document regarding the possession but did not consider that one co-sharer/co-tenant cannot plead his exclusive possession against the other co-sharer/co-tenant. Thus, finding of Ld. Trial court is based on the wrong assumption of law which cannot be allowed to stand. Thus, finding on this issue is hereby reversed. Same is decided in favour of the plaintiff and against the defendant and she is held to be entitled to decree of possession.