ERSAD ALI Vs. MUHAMMAD YAKUB KHAN

JUDGEMENT

(1.) THIS appeal has been preferred by plaintiffs Nos. 13, 14, 17 and daughter of plaintiff No. 18 against concurrent judgments of the Courts below. The subject-matter of litigation is about 31 decimals of land appertaining to plots Nos. 171, 718, 721, 723 and 727. The suit was instituted in all by 18 plaintiffs including the appellants. As per the genealogy given in the plaint, one Sk. Garibulla had two sons Sk. Bhikan and Sk. Mahihulla. Plaintiffs Nos. 1 to 12 are descendants of ehikan's branch. Mahibulla according to the genealogy was married to Taffai through whom he had four daughters Kasida, Nasiman, Ajiman and Basiran. Plaintiffs Nos. 13 to 18 are descendants of these four daughters. Mahibulla had a concubine Sunai Bibi through whom he had a son Sk. Minazuddin and a daughter kariman Bibi. This daughter died without any heirs. Minazuddin died before conclusion of the current settlement leaving his widow Johuran Bibi. The five plots in suit measuring 0. 31 acre were recorded in the name of Johuran, though they were joint properties of Mahibulla and others. Johuran by two sale deeds dated 18-12-37 and 3-3-38 purported to sell the suit lands to one Sk. Doman, father of defendants Nos. 3 to 5 for a consideration of Rs. 200/ -. Defendants Nos. 3 and 4, in their turn, sold a portion of these lands in favour of defendants Nos. 1 and 2 on 3-2-53 and on 23-6-53, defendant No. 5 executed a deed of relinquishment so far as his interest was concerned in favour of defendants Nos. 1 and 2. According to plaintiffs, the lands in suit belonged to and was possessed by Mahibulla and other members of the family jointly and that johuran had no right to convey any valid title in favour of Sk. Doman and necessarily defendants Nos. 1 and 2 did not acquire any right by their subsequent purchase. They allege that they have been in possession of plot No. 717 by growing vegetables, etc. , and have all along been using plot No. 718 as of right to have access to the public road from their house on plot No. 719. The sale by Johuran is alleged to be collusive and without consideration and defendants Nos. 1 to 5 never came into possession of these lands. On these allegations plaintiffs pray for a declaration of their title to and confirmation of possession or in the alternative recovery of possession of the suit lands. In the alternative, in case Johuran is found to have any share in the properties, they pray for being allowed to repurchase the same, or declare their right of way on plot No. 718 and injunct defendants Nos. 1 to 5 restraining them from obstructing such right. The contesting defendants Nos. 1 to 5 resisted the claim alleging that the suit properties did not constitute the ancestral or joint properties of plaintiff's family; that the suit properties exclusively belonged to Sk. Minazuddin who made a gift of the same to his wife Johuran in lieu of her dower; that Johuran and after her the purchasers defendants Nos. 3 to 5 and defendants Nos. 1 and 2 have been in continuous and exclusive possession of the same in their own right; that plaintiffs were never in possession of any portion of the suit lands and that they had no right of way over the never used plot No. 718 to have access to the public road. They also deny the correctness of the genealogy.

(2.) THE trial Court on a consideration of the evidence, oral and documentary, found; (1) that the genealogy given in the plaint is partly incorrect; (2) that plaintiffs have no title to or possession of the suit lands and defendants Nos. 1 to 5 have acquired an indefeasible right therein and (3) that plaintiffs have acquired a prescriptive right of way over plot No. 718 to have access from their house to the public road for which purpose it allowed a passage of 5 feet width lying across the left boundary line of C. S. plot No. 718. On these findings, plaintiffs' suit was decreed in part only in respect of their right of way over C. S. Plot No. 718. The rest of the claim of plaintiffs was disallowed. The plaintiffs preferred an appeal against the judgment and decree of the trial Court and defendants filed cross-objection against the finding of the trial Court allowing a right of way over C. S. Plot No. 718. The lower appellate court dismissed both the appeal and cross-objection, though it reversed the finding of the trial court regarding the correctness of the genealogy by holding that the four daughters were of Mahibulla. It found that the suit properties belonged to Johuran Bibi exclusively and did not constitute joint properties of Mahibulla's family. It also concurred in the finding of the trial court that Johuran and after her, defendants have been in exclusive and continuous possession of the properties all along. The lower appellate Court relying on the report (Ex. 2) and the testimony of pleader Commissioner who had been deputed for local inspection held that plaintiffs Nos. 1 to 4 are entitled to a right of way, as decreed by the trial court as an easement of necessity and accordingly dismissed the cross-objection.

(3.) FOUR of the plaintiffs have preferred this second appeal challenging the findings regarding their title to and possession of the suit lands, while defendants have filed cross-objection against the finding that plaintiffs Nos. 1 to 4 are entitled to a right of way over plot No. 718 as an easement of necessity.