BASHIRUDDIN Vs. JAMEELA KHATOON

JUDGEMENT

(1.) THE defendants/appellants aggrieved of the judgment and decree dated 24.2.1986 passed by Additional Judge to the Court of District Judge, Shivpuri, in Civil Appeal No. 24 -N82, which confirmed the judgment and decree dated 25.11.65 passed in Civil Suit No. 30 -N63 by the Civil Judge Class II, Karera, have preferred this second appeal, which was admitted by this Court on the following substantial question of law:

(2.) FACTS giving rise to this appeal are thus: Maulabux and Noor Mohammed were the sons of Chand Mohammed. Abdul Razzaque (plaintiff No.1) and Nazmul Haq (plaintiff No.2) are the sons of Maulabux. Bashiruddin and Ahmed Hasan (the defendants) are the sons of Noor Mohammed. Maulabux purchased the property described in para 1 of the plaint vide registered sale -deed dated 27.12.1938 for a consideration of Rs. 330/ -. The plaintiffs averred that the suit house, denoted by numbers 1 to 7 in the plaint -map, described in para 1 of the plaint, and the other denoted by numbers 8 to 11 in the plaint -map and described in para 2 of the plaint, were owned and possessed by Maulabux, and after his death, by the plaintiffs, who were keeping their household articles in two houses by putting their locks. About eight years prior to the institution of the suit, the defendants broke the locks and occupied the two suit houses unauthorisedly. The plaintiffs having come to know of breaking of the locks and their dispossession, lodged a report on 3.7.1954 (Ext. P/l) at P.S. Khaniya Dhana, and asked the defendants to restore their possession, but the defendants instead of handing over the possession, demanded partition and their shares in the property, hence, the plaintiffs had to institute the suit for declaration, possession and mesne profits. The defendants in their written -statement admitted purchase of the suit house, described in para 1 of the plaint by Maulabux, but contended that Maulabux, as the head of the family purchased the house in his name with the funds of the family. As regards other house described in para 2 of the plaint, the defendants submitted that it devolved on them from their ancestors, therefore, it was contended that the defendants are in possession of the property in their own right, and the plaintiffs, to defeat the claim of the defendants for partition, have instituted the suit. A plea of limitation was also raised.

(3.) AGGRIEVED of the judgmentand decree, the defendants preferred an appeal. During the pendency ofthe appeal, Abdul Razzaque (plaintiff No. 1) died, whose legal representatives were brought on the record. The first appellate Court after reappraisal of the evidence, concurred with the findings of the trial Court and held the story as put up by the defendants that they were in possession of the suit house since last 17 -18 years and the suit property is a joint property, which has not been partitioned, as not correct.