SULTAN ABDUL KADIR Vs. MOHAMMAD ESUF ROWTHER

JUDGEMENT

(1.) This is an appeal from the judgment of the learned Officiating Chief Justice in S.A. No. 940 of 1921 which was in turn an appeal from the Second Additional Judge's Court of Tanjore.

(2.) The matter came before us sometime before the vacation when we heard arguments at considerable length. We, however, deferred giving judgment in view of representations that were made to us that there was a strong probability of the parties coming to terms. We were informed just before the beginning of the vacation that these negotiations had broken down and we, therefore, posted the case for fresh argument after the vacation.

(3.) The litigants are Muhammadans, the Plaintiffs Nos. 1 and 2 being the children and the 3 plaintiff the wife of one Sheik Muhammad Rowther. The defendant is the brother of Sheik Muhammad Rowther uncle of the present male plaintiff. The subject of the litigation is certain property and this has been a fruitful subject of controversy between the parties or their ancestors in the past. In O.S. No. 15 of1905 Sheik Muhammad Rowther through whom the plaintiffs claimed filed a suit against the present defendant his brother for disturbance of his possession of the suit property. The defendant pleaded that the property was not the exclusive property of the plaintiff but belonged to the whole family, the plaintiff being entitled only to a quarter share. The plaintiff put the defendant on his oath which defendant took and the suit was thereupon dismissed without trial. Ten years afterwards in O.S. No. 38 of 1915 one of the daughters of a sister of the family sued her uncles and aunt for a partition of her share. The present plaintiff was the 5 defendant in that suit and the present defendant was the 6 defendant. The plaintiff contended that he was the owner of the property as did also the 6th defendant, but the Court finding that the property belonged to the 5 defendant who is the present plaintiff, the suit was dismissed.