MT BIBI ZAINAB Vs. MUHAMMAD AYUB

JUDGEMENT

(1.) This appeal is by the defendants in an action brought by the plaintiff for possession of two parcels of land upon one of which stood a house which was admittedly in possession of the defendants. It is quite unnecessary to set out in detail the actual facts. It is sufficient to say that the plaintiff claimed title through a purchase from Mt. Masiman and Mt. Safihan who were daughters of one Khedan Mian by his first wife. Some question arose in the Court below as to whether they were in fact sisters, as the facts I have stated would indicate, or whether they were cousins as was the later case of the plaintiff before the learned District Judge. The learned District Judge however has come to the conclusion that they were cousins, but in the events which have happened and the facts which have been found by the learned Judge, nothing turns upon that question excepting the question relating to an argument advanced by Mr. Mahabir Prasad appearing on behalf of the defendant-appellants with which I shall in a moment deal.

(2.) The defendants claimed to have been in possession of the property by a gift from Mt. Jumratan which was made just before her death; her death took place in 1928. The alternative case made by them was that the property in dispute was not the property of Khedan Mian, the ancestor, but had been purchased by Mohammad Rafiq, who was the son of Khedan Mian through his first wife Mt. Bano. There was another case put forward by the defendants and this was that the defendants had title by adverse possession. Certain questions of fact in those circumstances came to be considered by the learned Judge in the Courts below. The learned Judge has found that the story of the gift has not been established. He has come to the conclusion that the property was not purchased by Muhammad Rafiq but that it was the property of Khedan Mian. He has also come to the conclusion that the defendants had no title by adverse possession. There were incidental questions which related to these principal questions, but it is unnecessary to refer to them.

(3.) Mr. Mahabir Prasad on behalf of the defendants-appellants contends that, in deciding the question whether the property was the property of Khedan Mian or whether it was the property of Muhammad Rafiq, the learned District Judge has failed to take into consideration one of the principal documents of title upon which the defendants relied; that was Ex. D. Ex. D purports to be a purchase by Muhammad Rafiq in the yeas 1890 for the purpose of building a house which is one of the properties, the subject-matter of this dispute. In my judgment, however, the argument is unsustainable. It is to be noticed that the case which the defendants attempted to make out in their written statement was that they had purchased the whole of the land upon which the house stood. It is true that the learned Judge in the Court below has not referred to this particular document (Ex. D) by name, but in considering the question of the title set up by the plaintiff, he has quite clearly referred to it. The circumstances were these. The defendants came to Court and adduced in evidence three documents Ex. D which referred to the land upon which the house stood, Ex. A and Ex. B which related to the other land, the subject-matter of the dispute. They were met however, by Ex. 2, the document produced by the plaintiff. Now it would appear that the defendants were unaware of the existence of this document Ex. 2. It was a document in the name of Khedan Mian, and, if once accepted by the Judge of fact, would dispose of the defendant's case entirely. The explanation which the defendants gave was that the purchase had in fact been made by Muhammad Rafiq, but in the benami name of his father, Khedan Mian. This is a case which the learned Judge in the Court below did not accept. The matter therefore stands in this way that the defendants came into Court with a document which purported to show a title to the whole of the land upon which the house stood and were met by this document (Ex. 2) which they sought to explain in the manner which I have already indicated. It is impossible, after reading the judgment of the learned Judge on this question, to hold that he did not consider Ex. D. The learned Judge in disposing of this matter makes this statement: The appellants case in the written statement was that Khedan had nothing to do with the properties and Rafiq acquired the whole of the properties in suit. But in the course of the trial the case of the appellants underwent a change. The defence witnesses gave evidence to the effect that there was an old ancestral house of Khedan, but that house fell down and Rafiq built a new house on the site by acquiring more land. This case is a new case which was never alleged in the written statement.