UMMAKULUTHUM BEEVI Vs. BALGIS BEEVI

JUDGEMENT

(1.) Plaintiffs in O.S.No.4 of 1986 on the file of the Sub Court, Tirupur are the appellants.

(2.) One V.S.Mohamed Ali Sahib, father of the first plaintiff was entitled to the properties described as items 1 and 2 in the suit schedule and 1/4 share in the third item of properties. On the death of Mohamed Oli Sahib, the properties devolved upon his wife wife Jainu Bibi, four daughters and two sons including the first plaintiff. The first plaintiff's father was a grocery merchant. He had dealings with Haji Mohamed Ibrahim Sahib. The said Haji Mohamed Ibrahim Sahib obtained a decree against the heirs of Mohamed Ali Sahib by filing the suit in O.S.No.752 of 1939 on the file of the District Munsif, Calicut and in that suit, the first plaintiff, his brother and sisters and mother were parties. It is alleged that at the intervention of Noor Mohammed Sahib, the maternal grandfather of the first plaintiff, the matter was compromised and the decree holder viz., Haji Mohamed Ibrahim agreed to receive Rs.600/= in full satisfaction of the decree. In respect of item 3, the first plaintiff's father was entitled to 1/4 share and the remaining 3/4 share belonged to V.K.M.Mohamed Ibrahim Sahib and he was in possession of the entire third item of properties. The first plaintiff's mother demanded rent for her 1/4 share from V.K.M.Mohamed Ibrahim and to deny the right of the first plaintiff's mother in claiming rent in respect of 1/4 share, the said V.K.M.Mohamed Ibrahim got an assignment of the decree passed against the first plaintiff and his brothers, sister and mother in O.S.No.752 of 1939 from Haji Mohamed Ibrahim Sahib. Thereafter, the first plaintiff's grandfather talked with the decree holder Haji Mohammed Ibrahim Sahib and there was another compromise in the shop of A.P.Nagore Meeran Rowther and it was agreed that the 1/4 share of the first plaintiff's family in item 3 should be conveyed to the assignee decree holder V.K.M.Mohamed Ibrahim in lieu of the money due to him under the decree and in addition, a sum of Rs.175/= should also be paid towards the expenses incurred and Rs.175/= was paid to the assignee decree holder V.K.M.Mohamed Ibrahim on 30.8.1942 and that amount was paid by borrowing money from Sri.T.R.Sundaram Pillai, Advocate on 20.8.1942. Therefore, as per the compromise, 1/4 share in item 3 of the suit properties was to be transferred to the assignee decree holder V.K.M.Mohamed Ibrahim and for that purpose, the first plaintiff's mother filed O.P.No.34 of 1942 in the District Court, Coimbatore to get herself appointed as guardian of her minor children. Even thereafter, the assignee decree holder was postponing the execution of the sale deed from the first plaintiff's mother under various pretext. Meanwhile, he also got the decree passed in O.S.No.752 of 1939 transferred to the District Munsif Court, Tirupur and in execution of the decree, brought the properties for sale and in that petition, the first plaintiff, his brothers and sisters were declared as majors even though they were represented by their mother and guardian. In the said E.P.No.643 of 1951, item 1 of the suit properties was sold in court auction to one Muthusamy Gounder and item 2 was sold to one Banu Sahib on 23.6.1953 and item 3 was not sold. Thereafter, V.K.M.Mohamed Ibrahim Sahib purchased item 1 of the suit properties from Muthusamy Gounder and item 1 is in the hands of the legal heirs of V.K.M.Mohamed Ibrahim Sahib and the second item is in possession of the 6th defendant. The first plaintiff, alongwith his brothers and sisters filed E.A.No.1415 of 1953 on the file of the District Munsif Court, Tirupur for setting aside the sale in E.P.No.643 of 1951 and that petition was dismissed and the appeal filed against that order in A.S.No.107 of 1954 on the file of the Sub Court, Coimbatore was also dismissed and aggrieved by the same, C.M.A.No.1955 was filed before this court and this court dismissed the appeal holding that the appeal is not maintainable and the appellants have to work out their remedies by filing a separate suit. The first plaintiff's family has 1/4 share in the third item of suit properties and V.K.M.Mohamed Ibrahim appears to have given the entire third item to his wife Balkis Bibi and thereafter, the 7th defendant and one Abu Sali claimed to be owner of third item and defendants 8 and 9 are the legal representatives of Abu Sali and Balkis Bibi, wife of V.K.M.Mohamed Ibrahim is the first defendant. On 28.3.1962 there was a partition in the family of the first plaintiff and in that partition, the suit items were allotted to the share of the first plaintiff and V.K.M.Mohamed Ibrahim and his heirs and Babu Sahib and his successors-in-interest assured the first plaintiff that they would return the second item of properties sold in court auction and believing their words, the plaintiffs did not take any further action and as the defendants did not take any steps to hand over items 1 and 2, the first plaintiff issued notice to defendants 1 to 5, 7 to 9 and the husband of the 6th defendant on 9.1.1984 and the fourth defendant sent a reply denying the plaintiff's claim. Thereafter, the first plaintiff sent notice dated 5.3.1984 through his lawyer demanding possession of items 1 and 2 in accordance with the compromise effected in 1942 and defendants 2 to 5, 7 and 8 and the husband of the sixth defendant sent reply notice containing false and untenable allegations and the defendants wanted to take advantage of long lapse of time. Therefore, the plaintiffs approached Mupthi Hasarat of Bakkia-Thus-Salihat Madras-a of Valur to settle the dispute and the Mupthi Hasarat has given his verdict favour of the plaintiff on 19.8.1984 and therefore, the suit was filed for declaration that the plaintiffs are entitled to items 1 and 2 of the schedule of properties and for recovery of possession of items 1 and 2 from defendants 1 to 6 or in the alternate for directing partition of the property in item 3 into four equal shares and allot one share to the plaintiff and for the reliefs.

(3.) The first defendant filed a statement denying the right of the plaintiffs in respect of the suit properties and contended that the plaintiffs have no title or possession of the properties as they were sold long back and the plaintiffs' right was also lost even in the year 1957 when their applications were dismissed by the High Court and therefore, the suit filed by the plaintiffs is hopelessly barred by limitation. The court auction purchasers were enjoying the properties as their own and had passed on to various persons and all of them had perfected title by their continuous possession and they also perfected title by adverse possession. The deceased V.K.M.Mohamed Ibrahim was in continuous and uninterrupted possession and enjoyment of 1/4 share in item 3 of the schedule of properties and he also perfected his title by adverse possession and he was enjoying the 1/4 share alongwith 3/4 share and he was enjoying item 3 as a full owner and the plaintiffs family never demanded any rent from him at any point of time as the plaintiffs family knew that they had no right over the suit property after getting assignment of the decree by V.K.M.Mohamed Ibrahim Sahib and there was no compromise as alleged by the plaintiffs and he never agreed to give up his right over items 1 and 2 and the payment of Rs.175/= pursuant to the mediation was also denied. The first defendant further stated that after getting assignment of the decree, Execution Petition was filed to bring the property to sale in items 1 and 2 and purchased by various persons and though the 1/4 share in item 3 was not brought to sale, the Ibrahim Rowther was in possession of third item as full owner to the knowledge of the plaintiffs and the plaintiffs never claimed any right over the same and therefore, they also lost their right and therefore, the suit for partition or for declaration will not lie.