ARAB ALI KHAN Vs. MAHMUD ALI KHAN

JUDGEMENT

(1.) This is an appeal from a judgment and decree, dated November 10, 1915, of the High Court of Judicature at Allahabad, which reversed a judgment and decree, dated April 30, 1913, of the Additional Subordinate Judge of Cawnpore.

(2.) The action out of which the appeal has arisen was an ejectment brought by Arab Ali Khan, the appellant, to recover possession of certain property, described in a list attached to the plaint. The defendants filed separate written statements in the usual course. In addition to denying the plaintiff's claim, they pleaded (1) that the transaction embodied in a certain partition deed, dated March 13, 1889, was, on the part of his grand uncle Panah Ali Khan, a benami transaction; (2) that it was never acted upon or given effect to, and was void; and (3) that the plaintiff never had possession of the property in dispute and that his claim was barred by limitation and adverse possession. Several issues were framed upon these pleadings by the Additional Subordinate Judge of Cawnpore, Of these the two following are the most material for the purposes of this appeal : (1) Whether the taksimnama, dated March 13, 1889, was an agreement by way of family settlement and was enforced; (2) the compound issue whether or not the plaintiff was in possession of the property sued for within twelve years prior to the institution of the suit, whether the defendant and his predecessors have been in adverse possession of it for more than twelve years, and whether or not the suit is barred by limitation.

(3.) On the first issue this learned judge found that- The partition deed of March 13, 1889, was an agreement for consideration and was entered into by way of a family arrangement, and that it was substantially enforced by the parties thereto, although the oral will of Ummed Ali Khan mentioned in the deed might never have existed or was never made.