HAJI SAKHAWAT ALI Vs. ALI HUSAIN AND ORS

JUDGEMENT

(1.) This is an appeal from judgment and decree of the Civil Judge of Azamgarh dated 17-8-1946, setting aside the judgment and decree of the 1st Additional Munsif of Azamgarh dated 7-1-1946. For the purposes of this appeal the facts can be very shortly stated.

(2.) The Appellant, who is admittedly the owner of a 47/48the share in a house, brought a suit for possession, or alternatively for partition, of that house. The Defendants were Respondents Nos. 1 to 9, who are admittedly in possession of the house and certain other persons who were originally co-sharers and were joined as pro forma Defendants. The suit was founded on the allegation that Respondents Nos. 1 to 9 were the transferees of a 1/48th share from certain former co-shares; and the Appellant claimed that under Section 4 of the Partition Act he was entitled to possession of the entire house upon payment to these Respondents of the value of their 1/48th share. The suit was decreed by the trial court, but the lower appellate court set aside the trial court's decree on the ground, first, that Respondents Nos. 1 to 9 were not transferees within the meaning of Section 4 of the Partition Act, and, secondly, because the house was not a dwelling house within the meaning of that section. Respondents Nos. 1 to 9, who are the only contesting; Respondents, do not now contend that the house is not a dwelling house. They rest their case on their contention that they are not transferees, and that, even if they are, Section 4 of the Partition Act has no application.

(3.) With regard to the first of these submissions the argument of learned Counsel is that these Respondents are not transferees because in a redemption suit which was filed by the Appellant there was an adjustment of claims under which two of the co-shares acknowledged the ownership by these Respondents of a 1/48th share. It is argued that this was merely an acknowledgment of a previously existing right and is not evidence of a change of ownership from one person to another which this Court laid down in Sohni v. Raj Kumar Singh Jain,1942 AllLR 809 as the test of whether a person had become a transferee within the meaning of Section 4 of the Partition Act. We think that the short answer to this contention is that in the written statement which was filed by these Respondents they have themselves said that they acquired their 1/48th share in the house in question by purchase. We are of opinion therefore that it is no longer open to these Respondents to contend that they are not transferees within the meaning of Section 4.