MOHIDEEN KHAN Vs. SABJAN SAHIB

JUDGEMENT

(1.) The above Second Appeal is directed against the judgment and decree dated 19-7-1991 rendered in A. S. No. ,122 of 1989 by the Court of Additional District Judge. South Arcot at Cuddalore thereby varying the judgment and decree dated 7-3- 1989 rendered in O. S. No. 107 of 1986 by the Court of Subordinate Judge, Vridhachalam.

(2.) On a perusal of the materials placed on record and upon hearing the learned counsel for the appellants, it comes to be known that defendants 1 to 3 in the suit are the appellants herein and that the first respondent herein had filed the suit before the trial Court for partition and separate possession of plaintiffs 2/9th share in the suit properties and for mesne profits from the date of plaint till delivery of possession to be ascertained in the final decree proceedings and for costs. The case of the plaintiff is that himself and defendants 1 to 3 are brothers and the 4th defendant is their sister; that their father Nawazkhan died about 15 or 16 years back leaving the plaintiff and defendants as his heirs; that their mother Chanbi predeceased their father; that the suit properties belonged to their father Nawazkhan and on his death, under Muslim Law. the plaintiff and defendants 1 to 3 became entitled to each 2/9th shares while the 4th defendant became entitled to 1/9th share; that the plaintiff and defendants are in joint possession of the suit properties; that in spite of his demand since the defendants 1 to 3 are evading to effect a partition, the, plaintiff issued a notice dated 9-8- 1986. for which the defendants 1 to 3 gave a reply with false allegations; that it is false to say that their father Nawazkhan orally released his share in the suit properties to defendants 1 to 3 and that defendants 1 to 3, orally purchased the shares of Jalal Sahib and Babajan, who are brothers of their father Nawazkhan; that Jalal and Babajan received some other property and so Nawazkhan was absolutely entitled to the suit properties; that the oral sale and oral relinquishment pleaded by the defendants 1 to 3 are totally false; that the plaintiff and defendants are in joint possession of the suit properties and it is not true to say that defendants 1 to 3 have acquired title by adverse possession and ouster as claimed in the reply notice and hence the suit.

(3.) The first defendant filed a written statement which was adopted by other defendants. In the written statement, the defendants would admit the relationship between parties but would deny all other allegations of the plaint. The defendants would submit that the suit properties originally belonged to their paternal grand father Mathab Khan and on his death, the suit properties were inherited by his three sons, Nawazkhan, Jalal and Babajan, thus their father Nawazkhan became entitled to 1 /3rd share in the suit property; that their father Nawazkhan and his brothers divided the properties at a panchayat in the village more than thirty years back and were in possession and enjoyment of their respective shares; that in Item No. 1 of the suit properties, Nawazkhan and his two brothers got each 1.16 acres; that in Item No.2, Jalal got the Northern 0.33 cents and Babajan got the Southern 0.33 cents and Nawazkhan got another 0.33 cents in some other item for his share which he subsequently sold; that defendants 1 to 3 orally purchased the share of Jalal about 25 years back and later on about 23 years back, they orally purchased the share of Babajan also and since then defendants 1 to 3 are in possession and enjoyment of the properties purchased by them in their own right.