FAKEER BUX Vs. SAIRA BEGUM

JUDGEMENT

(1.) THE suit giving rise to this appeal was filed by the respondent for possession of a house and past, pendente lite and future mesne profits at the rate of Rs. 10 per mensem. The trial Court decreed it in toto. The lower appellate Court confirmed the decree for possession upholding the plaintiff's title, but remand ed the case to the trial Court for deciding the question of mesne profits afresh after framing a specific issue thereon. The de fendant filed an appeal in this Court, registered as F.A.F.O. 237 of 1965, under Sec tion 104 read with Order 43, Rule 1 of the Code of Civil Procedure. The appeal came up before Verma, J. (as he then was) for final hearing. He considered the points of law involved in the case to be of suffi cient importance meriting decision by a Division Bench and ordered accordingly.

(2.) THEREAFTER the appeal was heard by Oak, C. J. and Mukerji, J. Before them a preliminary objection was raised by the respondent as to the maintainability of appeal under the provisions under which it had been filed. This objection was up held by the Bench, but at the request of the appellant, permission and time was granted to convert the appeal into a regu lar second appeal under Section 100 of the Code. Necessary steps in that behalf having been taken by the appellant, the appeal was registered as Second Appeal No. 1623 of 1971, and has thereafter been heard by this Bench.

(3.) THE house admittedly was ori ginally owned by one Tirhoo, who died some forty or fifty years before the suit leaving behind a widow, Smt. Binda and a daughter, Smt. Dhanki. The widow in herited the house and on her death it de volved on Smt. Dhanki. The latter had at first been married to a Hindu but sub sequently she married a Muslim after re nouncing Hindu religion and embracing Islam. She inherited the property after her conversion. The defendant, Fakir Bux is Smt. Dhanki's son by her Muslim hus band. He was born in the house and had been living therein with his mother since then. These in brief are the material facts, either admitted or proved, which are no longer assailable. The pleas of the defendant that he has been in adverse possession of the house for more than twelve years before the institution of the suit and that it is therefore barred by limi tation have been negatived. The appel lant has not shown that those findings suffer from any error of law. Eventually, the appellant's possession was merely as a licencee of his mother. It is in the con text of these facts and circumstances that the appeal has to be decided.