KH ALI MOHD KHAN Vs. ABDUL RAHIM MIR

JUDGEMENT

(1.) The plaintiff sued to recover a house specified in the plaint. The house in dispute has been acquired by defendants 1 to 3 by sale deed dated 5-11-1962 from defendants 4 to 8. The plaintiff's case is that the house has come down into the family of the plaintiff and defendants 4 to 8, from their common ancestor, Rustam Sheikh. He alleged that Rustam Sheikh had died survived by two sons and one daughter, namely Ahmad Sheikh and Ramzan Sheikh & Mst. Zoona Dedi. The plaintiff claims to be the son of Mst. Zoona Dedi, Defendants 4 to 8 are the grandsons of Ahmed Sheikh through his only son, Abdullah Sheikh. The plaintiff asserted that Ramzan Sheikh had died issueless. But at the trial it was found that he was survived by his son. Gh. Qadir Sheikh, who was impleaded as defendant No. 9. The plaintiff claimed 2/5th share on the basis of title: 1/3rd share on the basis of right of prior purchase. The suit was opposed by defendants 1 to 8. They denied that the house had come down into the family from the common ancestor. Their case was that it was the exclusive property of the defendants 4 to 8 to whom it had come down from their grandmother who had constructed the same in the Samvat year 1965 (1896 AD) after obtaining proper permission from the Municipality in the name of her husband, Ahmad Sheikh. Their further case was that Ahmad Sheikh and, after him, his successors in the line below, including defendants 4 to 8, have been in long and continuous possession and enjoyment of the house right from the time it was constructed and, that. the plaintiff had no right or title in the house nor was he ever in possession or enjoyment thereof. The trial court held that the house was the exclusive property of ' the defendants 4 to 8 to whom it had come down from their grand-parents and that the plaintiff had no right, title or interest in it. The court further held that the house had been in a long and continuous possession of defendants 4 to 8 and their father and grandfather namely Abdullah Sheikh and Ahmad Sheikh respectively. The court also held that the plaintiff had no preferential right to purchase the house as he had not proved himself to be the co-sharer. On these findings, the trial court dismissed the suit. On appeal, the learned Addl. District Judge held that the house had come down into the family from their common ancestor and was joint between the plaintiff and defendants 4 to 8 and that the plaintiff was entitled to 1/5th share. He further held that, being a cosharer, the plaintiff was entitled to a right of prior purchase in respect oi other four shares which he could acquire against the proportionate price of Rs. 1600/-. He passed a decree accordingly. Against this decision, the defendants have come up in appeal to this court.

(2.) At the outset, I must confess that I had a great difficulty in following the judgment of the lower appellate court. By a process of reasoning, which appears to be peculiar, the court has come to the conclusion that the disputed house had come down into the family from the common ancestor and was joint between the plaintiff and defendants 4 to 9 and that a finding to the contrary of the trial court was erroneous. The trial court considered the evidence and then summed up the position in these words:--

(3.) The lower appellate court proceeded on the assumption that the property was joint between the parties and argued that, "the case being as between the co-sharers, it was necessary for the defendants to plead specifically that they were in adverse possession and their continued possession was such that it amounted to the ouster of a cosharer". On this premises, the court proceeded to examine the various circumstances appearing in the evidence and relied upon by the trial court and negatived them one by one and ultimately concluded that the house was joint between the plaintiff and defendants 4 to 9. The court first dealt with the permission for construction which was obtained by Ahmad Sheikh from the Municipality, Srinagar in the samvat year 1965 for the construction of the house and said that the related application was not shown to have been submitted by Ahmed Sheikh nor a mention, made therein that the site belonged to him and that, in any case, it was not proved that his wife had really rebuilt the house after having obtained the permission. The court proceeded to observe: "After all Ahmad Sheikh had to show whether he had got the land and who was the owner of the house which he repaired."