MULLA HAIDER HUSAIN Vs. MOHAMMAD SUBHAN KHAN

JUDGEMENT

(1.) These two appeals arise out of one and the same judgment. I will first take up S.A. No. 624 of 1938. The suit was for possession of 5 annas, 8 pies odd of zamindari property. The defence inter alia was that the suit was barred by limitation. Azim Ullah Khan was the original owner of a 7 annas share including the shares which are now in dispute. He died in 1892 and on his death mutation was effected in the name of his son, Bahadur Ali. Azim Ullah Khan also left four daughters. These were: (1) Mt. Anjam, plaintiff 3, (2) Mt. Mabi, deceased, whose daughter is Mt. Rahiman, plaintiff 5, (3) Mt. Illahi Bibi, deceased, whose son and daughter are Subhan Khan and Mt. Ghafuran, plaintiffs 1 and 2 respectively, (4) Mt. Shahzadi, deceased, whose grandson is Nawab Khan, plaintiff 4. The father of this plaintiff is dead. Although Bahadur Ali had four sisters, his name alone was mutated against the property. Bahadur Ali died in 1919, leaving a widow, three sons and two daughters. The widow was Mt. Bari Bahoo, and she survived until 1930. The three sons were Sardar Ali, deceased, Kasim Ali, plaintiff 7, and Akbar Ali Khan, defendant 2, and the two daughters were Mt. Hashmat Bibi, plaintiff 6. and Mt. Habiban, plaintiff 8. On the death of Bahadur Ali, the property was mutated in the name of Mt. Bari Bahoo.

(2.) In 1913 Mt. Bari Bahoo and her three sons executed a simple mortgage in favour of a man named Pancham Lal. In 1919, under an instrument executed by Mt. Bari Bahoo alone, which is not on the record and the exact nature of which is not disclosed Pancham Lal was put into possession of the property for a period of 15 years and his name was mutated. On 23 February 1924 Mt. Bari Bahoo and her sons Akbar Ali, defendant 2, and Sardar Ali, executed a sale deed in respect to this property in favour of defendant 1 for a consideration of Rs. 550. The suit out of which this appeal arises was instituted by the eight plaintiffs on 22nd February 1936. The suit was dismissed by the trial Court, but the lower Appellate Court has reversed that decree and has decreed the suit of some of the plaintiffs while dismissing the claim of others. The appeal before the District Judge was actually filed by four plaintiffs only, namely plaintiffs 1, 2, 3 and 5. The other plaintiffs were impleaded as pro forma respondents and during the pendency of the appeal they were transposed at their request to the array of appellants. The learned Judge has dismissed the suit as against plaintiff 3 for reasons which it is unnecessary to set out for the purposes of this appeal. He has also dismissed the suit of plaintiffs 4, 6, 7 and 8, and that part of the judgment and decree is the subject of the connected appeal (S.A. No. 685 of 1938.)

(3.) The decision of the appeal with which I am now dealing rests upon the question of limitation, this being the only point which has been argued before me. It is conceded by learned Counsel for both parties that Art. 142, Limitation Act, was applicable to this suit. In the plaint it was stated that the defendant-appellant obtained possession of the property in 1934, in which year it was vacated by the mortgagee in accordance with the terms of the instrument of 1919; and this fact was admitted by the defendant-appellant. The plaintiffs alleged that they had no knowledge of the sale deed of 1924 until the defendant took possession of the property in 1934, in which year they were dispossessed. There can, I think, be no doubt that in a suit to which Art. 142, Limitation Act, applies the onus lies on the plaintiffs having established their title, to prove that they had been in possession, whether actual or constructive, within 12 years before the institution of the suit. The authority for this is the Full Bench decision in Bhindhyachal Chand V/s. Ram Gharib Chand .