MUSAMMAT ALLARAKHI BIBI Vs. SK SHAHJAHAN ALIAS SHAJAHAN

JUDGEMENT

(1.) The suit out of which the second appeal arises was instituted by the plaintiff-respondent for a partition of her 1/3rd share of the suit property and the short legal question, we are called upon to answer in this second appeal, is whether the alleged possession of a transferee from a co-owner of the whole property is adverse to the other co-owner.

(2.) Admittedly, the disputed property measuring 4.70 acres of land originally belonged to one Mainuddin who died leaving behind a son named. Sk. Abdul Mansur and a daughter, the plaintiff Allarakhi Bibi each inheriting 2/3rd and 1/3rd share respectively in such property. According to the plaintiff, while they were in joint possession of such property, her brother Sk. Abdul Mansur sold his 2/3rd share of such property to one Sk. Moula Bux on 9.9.43 by a registered sale deed. Again by another sale deed dated on 6,11.50, the said Moula Bux and Abdul Mansur acting as the guardian of his minor sister, the plaintiff sold the entire interest in such property to the defendant. The plaintiff being a minor was completely unaware about such illegal and unauthorised sale by her brother and claimed to be in joint possession of such property with the defendant according to their respective shares. Afterwards, such joint possession having been found to be in convenient and difficult, the plaintiff asked for partition and the same having been refused plaint filed the present suit for partition of her 1/3rd share by metes and bounds. Defendant did not dispute that the plaintiff had inherited 1/3rd share in such property from her father but claimed to have purchased such property and to be in possession of the same since such purchase in 1950 openly and adversely to the interest of the defendant. It was not seriously disputed by the defendant before both the courts below that Abdul Mansur, the brother of the plaintiff could neither act, nor transfer any valid interest in such property by a sale deed the share of his sister during the minority of the plaintiff. In other words, it was not seriously disputed that under the Mohammedan Law, Abdul Mansur as the brother could not be a legal guardian of his minor sister and the said transfer by him during such minority of his sister was a void transaction. The defendant thereby claimed to have acquired valid title to such 1'/3rd share of the plaintiff in the suit property by adverse, possession.

(3.) Both the courts below overruled such plea of defendant of acquisition of title by adverse possession, on a finding that the defendant's possession of the suit property must be deemed to be the possession on behalf of the plaintiff as well, a co-sharer or tenant in common, unless there is a clear case of ouster. Both. The courts below allowed the plaintiff's claim on further that defendant neither pleaded in his written statement nor proved such case of ouster and consequent extinguishment of plaintiff's title by such ouster.