ABDUL KARIM Vs. HAFIJ MOHAMMAD

JUDGEMENT

(1.) THIS is a defendants' Second Appeal against the judgment and decree dated 18-8-1982 passed by Shri P. B. Kerhalkar, Additional Judge, Barwani to the Court of the District Judge, Mandleshwar in Civil Appeal No. 36-A/81, preferred against the judgment and decree dated 21-11-1980, passed in Civil Suit no. 14-A/78, by the Civil Judge, Class-II, Sendhwa, whereby the plaintiffs' suit for partition of agricultural land and for possession of the 1/4th share from the said land, has been decreed.

(2.) BRIEF facts, leading to this appeal, are as under: The common ancestor of the plaintiffs and defendants was one Rustam, who had two sons - Chand mohammad and Lal Mohammad. Chand Mohammad died in or about the year 1924. Lal Mohammad died in the year 1936. Chand Mohammad had two sons -Peer Mohammad @ Dagru and Taj Mohammad , the defandant No. 9. The defendants Nos. 1 to 8 are the descendants of Lal Mohammad. Peer Mohammad left his wife Hussainabe, the plaintiff No. 3. The rest of the plaintiffs are the descendants of Peer Mohammad, i. e. sons and daughters. Rustamji had agricultural land in the village Pipaldar, Tehsil Sendhwa situated at survey Nos. 133, 144, 147 and 148 area 31. 60 acres, of which both the sons of Rustamji, Chand mohammad and Lal Mohammad were the co-sharers. Another agricultural land of rustamji was situated in Sendhwa, which is said to have been sold to third persons by the plaintiffs. The plaintiffs applied for partition before the Tehsildar under section 178 of the M. P. Land Revenue Code, 1959 (for short "the Code") in case no. 68-A 27/76 and claimed 1/4th share in the agricultural land situated at village pipaldar. Before the Tehsildar, the question of title was raised by the defendants. Hence, the Tehsildar vide his order dated 4-10-1976 directed the parties to file a civil suit and obtain declaration, till then the proceedings u/s 178 of the Code, were ordered to be stayed. Against this order of Tehsildar, an appeal was preferred before the Sub-divisional Officer, which was also dismissed. Hence, the plaintiffs filed the suit on 2-2-1978 in the court of the Civil Judge, Class-II, Sendhwa for declaration, partition and for possession of 1/4th share from the suit land. During the pendency of the suit, Taj Mohammad died and his legal representatives were brought on record.

(3.) THE defence of the defendant - appellants in the trial court was that the family had lands in two villages - one in Pipaldar and another at Sendhwa, because of private partition between the two branches, the land situated in the village Sendhwa came in the hands of the plaintiffs and the land situated at Pipaldar came in the hands of the defendants, which is the subject-matter of the suit. The defendants became the owners of the said suit lands by virtue of the previous partition, which was held on or before the settlement year 1925-26 and since then the defendants are in possession of the land at Pipaldar as absolute owners, alternative plea of adverse possession was also raised. Second defence in the suit was that the suit for partial partition is not maintainable in relation to the land situated at pipaldar, without including the Sendhwa land. The third defence was of estoppel by conduct, i. e. one branch remained in possession of the land situated at Pipaldar and another at Sendhwa. The Sendhwa land was sold to third persons by the plaintiffs. Hence the plaintiffs are estopped and are not entitled to claim any share in the suit land.