ABDULLA Vs. SHAMS-UL-HAQ

JUDGEMENT

(1.) The facts which have given rise to this appeal are briefly as follows: One Sheikh Bakshu, who owned a 13 bigha 8 biswa and 10 dhur share, died after the mutiny leaving his two sons, Kadir and Amir, as his heirs, Amir left a widow, Musammat Azima, defendant No. 5, and a minor son Abdullah, plaintiff, as his heirs. Musammat Azima took possession of the whole of the estate of Amir deceased, that is of J in her own right as an heiress and of 7/8 in lieu of her dower. Later on Musammat Azima married her deceased husband s brother Kadir. So that as far as actual possession of the estate of Sheikh Bakshu was concerned, it was with Azima and Kadir. On the 7th of February, 1872, these two persons transferred half of the property which originally belonged to Sheikh Bakshu to Sheikh Rasai. One of the points for decision in this appeal would be as to what was sold under this deed and what effect the deed would have on the rights of the respective parties to this appeal.

(2.) The plaintiff s case is that what was actually sold was the half share of Amir over which Azima was in possession as mortgagee, and that Rasai and after him his representatives, defendants Nos. 1 to 4, have continued in possession as mortgagees. That the plaintiffs asked them "to return the mortgaged share on payment of a Reasonable amount," but the defendants aforesaid refused and hence this suit. Defendant No. 5, Musammat Azima, the widow of Amir, has been impleaded on the inexplicable ground that she did not join in the suit. The contesting defendants 1 to 4 pleaded that what was actually sold was the property which was owned and possessed by Kadir and Amir, implying that the mortgagee rights were not transferred as alleged by the plaintiffs. They further pleaded that Rasai, and after him they, had been in adverse possession as proprietors. They also pleaded in bar Article 134 of the first schedule of the Limitation Act, IX of 1908. We are not concerned with the other pleas raised in defence.

(3.) The Munsif of Azamgarh came to the conclusion that the deed taken as a whole clearly shows that it purported to transfer a portion of that share which was held by the vendors as absolute owners. He further held that Musammat Azima sold 14 biswas 17 dhurs which she owned as a proprietor and the remainder out of the 6 bighas 14 biswas and 5 dhurs sold under the deed of 1872 was the property of Kadir. He further found that the defendants and their predecessor in title had been in possession as absolute owners since 1872. A portion of the property in dispute had been transferred by the widow of Rasai, the vendee, by deed of gift so far back as 25th of July, J 899, and the defendants and their transferees had been claiming the absolute ownership of the land from the very beginning. In the result he dismissed the suit.