YUSUF MIAN Vs. GAFOOR MIAN

JUDGEMENT

(1.) This is a defendants' second appeal from the decision of the learned Additional Subordinate Judge of Motihari, dated the 7th May 1949, reversing that of the Munsiff of Bettiah, dated the 3rd of March, 1948, in a suit in ejectment.

(2.) In so far as it is necessary for the determination of this appeal, the facts may be stated as follows: One Magali Mian died in 1913 after having married thrice. By his first wife he had three daughters, plaintiffs 1 and 2, and plaintiffs 4 to 10, who are the heirs of the third daughter. By his second wife he had a daughter who figures as the third plaintiff. On Magali's death his third wife inherited his properties to the extent of a two annas share, the remaining fourteen annas being divisible amongst the several daughters aforesaid by the first two wives. Mt. Bandhui, who is the third wife of Magali Mian, came into possession of the entire estate of her husband, and, according to the plaintiffs' case, she thus came into possession partly as a co-sharer, and in respect of the rest of the estate, in lieu of her dower debt of Rs. 400. Her husband had left her 'raiyati1 interests in two 'khatas' in two villages, the total area of the estate being 4.17 acres. Mt. Bandhui died sometime in 1944, and on her death, the present suit was commenced in March, 1946, for recovery of possession in respect of the plaintiffs' share in the property. Before her death Mt. Bandhui had executed two sale-deeds on the 17th of April, 1919, namely, one in respect of 1 bigha 4 kathas ahd 12 dhurs for the sum of Rs. 260 to defendant No. 9, and the second in respect of 4 kathas and 3 dhurs in favour of the tenth defendant for the sum of Rs. 26. The defendant No. 10 is said to have built a house and constructed a well on the plot sold to him. These two transactions were in respect of 'khata' No. 448. The other 'khata', namely, 'khata' No. 64, with an area of 3 bighas 9 kathas and 8 dhurs, was sola to the dei'endant No. 8 on the 10th of October 1934, for the sum of Rs. 698. Hence at the death of Mt. Bandhui the entire estate left by her husband had passed into the hands of the transferees aforesaid. The suit was contested by the defendants 8 to 10, that is to say, the transferees, chiefly on the ground that after the death of Mt. Bandhui's husband she came into exclusive possession of the entire estate to the knowledge of the other heirs and adversely to them. They, therefore, contended that the Mt. herself, and, after the transfers in their favour, they, were in exclusive adverse possession of the estate, with the result that the plaintiffs' claim for possession was barred by limitation.

(3.) The learned Munsiff decreed the suit in part and dismissed it in respect of the rest, holding that the Mt. though she was in possession of part of the estate in lieu of her dower debt, had acquired title at least in respect of a portion of the estate by adverse possession. On appeal by the plaintiffs, in respect of the portion for which the suit had been dismissed, the lower appellate Court has passed a decree for the entire claim of the plaintiffs subject to certain directions as to the way in which the property should be held so as to protect the interest of some of the transferees who, according to the lower appellate Court, had acquired a good title to that portion of the estate which could legally come into the hands of Mt. Bandhui as one of the heiress to her husband. Hence this second appeal by defendants 8 to 10.