BAINOORIBI AND ORS Vs. KHIMIYABAI AND ORS

JUDGEMENT

(1.) This first appeal under Section 96 of the Code of Civil Procedure has been filed by the defendants 2 to 8 against the judgment and decree dated 21.12.1990 passed by learned Second Additional District Judge, Chhindwara in Civil Suit No.32-A/1989 decreeing the suit of plaintiff and holding that she is the owner of 1/3 rd share in the suit property.

(2.) In brief, the suit of the plaintiff Khimiyabai (deceased-respondent No.1) whose L.Rs are respondents 2 to 7 is that the suit property was owned by her father-in-law Sheikh Hamdu who was having three sons, namely, Sheikh Rehman, Sheikh Usman and Sheikh Ismile. Plaintiff Khimiyabai is the wife of Sheikh Rehman who was dead before the filing of the suit. Similarly, Sheikh Usman was also dead before the institution of the suit. Sheikh Ismile is the first defendant. Sons and daughters of Sheikh Usman are defendants 2 to 8 while defendants 9 to 14 are the sons and daughters of plaintiff Khimiyabai and her husband Sheikh Rehman. Deceasedplaintiff Khimiyabai is claiming 1/3 rd share in the entire suit property, the description whereof has been mentioned in para-2 of the plaint. According to her, the suit property was owned by her father-in-law Sheikh Hamdu and after his death the suit property devolved in his three sons, namely, Sheikh Rehman, Sheikh Usman and Sheikh Ismile (defendant No.1). After the death of her husband Sheikh Rehman, she became the owner of 1/3 rd share in the entire suit property and hence, she has brought the present suit for declaration of her share and for delivery of separate possession by way of partition.

(3.) The first defendant Sheikh Ismile admitted the claim of the plaintiff and similarly defendants 9 to 14 who are the sons and daughters of plaintiff and her husband Sheikh Rehman also admitted her claim by filing their separate writtenstatements. However, the sons and daughters of Sheikh Usman who were arrayed as defendants 2 to 8, although did not dispute the family tree, but, in the additional plea of their written-statement it has been pleaded that 40 to 44 years ago (written-statement was filed on 25.7.1989), the suit for partition was filed between Nokhelal and Mst. Chukharia widow of Sheikh Hamdu in which Sheikh Usman (father of defendants 3 to 8) after paying the compensation of the disputed house to Nokhelal obtained possession and became the exclusive owner of the suit property and for last 32 years they are possessing the suit property and thus they have become the owner thereof by adverse possession. According to these defendants, plaintiff is not having any right, title and interest in the suit property and therefore, it has been prayed that the suit be dismissed.