HIDAYAT ALI KHAN SAHIB Vs. KHADAR KHAN SAHEB

JUDGEMENT

(1.) This is a suit for a declaration that certain properties which were in the plaintiffs possession were their property. The properties, it is found, had been in the possession of their relation one Roshar. Ali, through whom the defendants claim, until his death when they were taken possession of by the plaintiffs. The plaint alleged that they were originally the property of one Mirja Mahommed Beg and that on the death of his widow they were inherited by the children of Imam Ali Khan, from whom the plaintiffs, Roshan Ali and the 5th defendant are descended and alleged that defendants Nos. 1 to 4, who are the descendants of Roshan Ali, were disentitled to share in the inheritance by reason of their illegitimacy, but their legitimacy is not now questioned. The defendants denied that the plaintiffs ever had any right to the suit properties and alleged that they had dispossessed the defendants after Roshan Ali s death in 1909. They alleged that part of the suit properties had belonged to Mahommed Beg who had bequeathed them to Roshan Ali, but it is not necessary to go into this question, because it appears that Mahommed Beg was only related to the wife of Imam Ali by virtue of an alleged adoption not recognized by Muhammadan Law and that, therefore, the plaintiffs are not in his line of heirs and have no claim to succeed to his property. This claim is not now pressed. The written statement, however, alleged that Imam Ali Khan owned 7125 acres in the same village which are also part of the suit lands and set up in effect that the 1st plaintiff and the father of the other plaintiffs, who as well as the defendants are heirs of Imam Ali, had abandoned these lands and left them to Roshan Ali, the father of defendants Nos. 1 to 4, in 1875. Thus whereas the plaintiffs mistakenly set up that the suit lands had all been the property of Mirja Mahommed Beg, the defendants claimed some of them on the ground that they were the property of Imam Ali and that the 1st plaintiff and the father of the other plaintiffs had abandoned their share in them. The parties joined issue issues 5 and 6) on these allegations and went to trial on them, and in these circumstances we think it is too late for the defendants to object that the plaintiffs did not in their plaint claim any of the suit properties by inheritance from Imam Ali.

(2.) It would, no doubt, have been more correct if the plaint had been amended, but it is clear that the parties went to trial on the question whether the 1st plaintiff and his brother had relinquished their claim to share in the suit lands which had belonged to their father, Imam Ali, and abandoned them to Roshan Ali, the father of defendants Nos. 1 to 4.

(3.) Exhibit M shows that in 1842 the suit village had been partitioned between Imam Ali and the widow of Mahommed Beg. Imam Ali would appear to have died about 1861 and Exhibit B of that year is an inam statement, which would appear to have been drawn up as if to be presented by Imam Ali himself but is signed by his son Roshan Ali. It shows Roshan Ali in actual enjoyment and gives the other members of his family. Exhibit C is a power-of-attornye taken by him from his sisters in respect of their shares. Exhibit 3 is the plaint in a pauper suit of 1882 in which the 1st plaintiff and the father of the other plaintiffs sued their brother, Roshan Ali, alleging that Imam Ali had died about 20 years ago and that Roshan Ali and they lived together until 1873 when Roshan Ali took possession of all the lands and had been enjoying the shares of the plaintiffs therein. In his counter-petition, Exhibit 12, which was in lieu of a written statement, Roshan Ali admitted the right of the plaintiffs in that suit to share in the property of their father, but alleged that he had been in management and incurred debts to the extent of Rs. 3,000 for the purposes of the family and that the plaintiffs were not entitled to recover their shares until this debt was paid off. Exhibit K is his deposition in which he stated that the village had been partitioned between Moosa Bi, widow of Mohammed Beg, and Imam Ali, that at the time of Imam Ali s death it was in the sole possession of Moosa Bi, that at the time of the Inam Commission in 1861 he obtained a separation of their share, that from 1863 they had divided profits and that he was willing to give the plaintiffs their share in the 71 acres if they paid their share of the debt. Exhibit 4 shows that the suit of 1882 was dismissed at settlement of issues, on the ground that the plaintiffs had no right to sue without joining the other heirs of their father, Imam Ali. The Subordinate Judge has found, and the evidence shows, that from 1882 and earlier Roshan Ali was in exclusive possession and enjoyment of 71-25 acres of the suit lands which had belonged to Imam Ali, but his own admissions above set out show that he got into possession of these lands on behalf of the whole family, and this being so, his possession enured for their benefit and he could not make it adverse to them. See Gorea v. Appuhamy (1912) A.C. 230 : 81 L.J. P.C. 151 : 105 L.T. 836. We are, therefore, unable to agree with the Subordinate Judge that the suit is barred by limitation and as regards the 71-25 acres, we reverse the decree of the lower Court and remand the case for disposal according to law. There will be no order as to the costs of this appeal.