AHMAD HUSSAIN Vs. TASADDUQ HUSAIN

JUDGEMENT

(1.) THIS is a defendant's appeal arising put of a suit for partition of 2 Sehams out of 6 Sehams of property described us C and D.

(2.) THE facts of the suit giving rise to this appeal will be clear from the following pedigree:-- MURAD BUX Bahi Bux Kallu Ali Bux Mt. Hameedan Karim Bux=Mst. Karim Ullah Hameedan | Yasin In 1941 there was a partition between Ilahi Bux and Kallu sons of Murad Bux. Properties A and B were allotted to the share of Kallu and C and D were allotted to the share of Ilahi Bux, Prior to this on 6-11- 1938 Ali Bux, son of Ilahi Bux had executed a usufructuary mortgage of property C-1 which is said fro be a Khaprail in favour of Ahmad Hussain defendant No. 6. In pursuance of the said mortgage Ahmad Hussain entered into possession. THEreafter on 23-2-1943 Smt. Hameedan, sister of Ali Bux, who was admittedly a co-owner of property C. 1, executed a sale deed of her share in property C-1 and D and transferred 2 Sehams out of 6 Sehams as representing her share to the plaintiff-respondent. It is not disputed that the plaintiff was unable to obtain possession over the property C-1 under the sale deed aforesaid. THE present suit for partition was instituted by the plaintiff-respondent in 1951 on the allegation that he was entitled to 2 Sehams out of 6 Sehams in property C-1, being a transferee from Smt. Hameedan.

(3.) ON the question of adverse possession pleaded by the appellant the court below came to the conclusion that he could not prescribe a title adverse to the co-owner by virtue of a transfer. He accordingly decreed the suit.