ABDUL HAQ Vs. MOHDHASHIM

JUDGEMENT

(1.) This is a defendant's appeal arising: out of a suit for possession of a house situate on a plot of land No. 146 of the abadi of mauza Chail. The plaintiffs case was that he was one of the zamindara of the plot in suit; that originally the house stood on it and it belonged to. Mt. Latifan and to one Jamal; that these persons abandoned the house and left the village. The house consequently reverted to the zamindars as Chail village is an agricultural village. It was further alleged in the plaint that the defendants possession over the house after-its purchase from Ali Abbas was illegal and without any right. In the alternative, the relief sought was for possession, over the site of the house after its demolition and removal of the materials thereof. The plain, tiff claimed to be one of the cosharers in. the plot in question which is situate, in patti Ikram Ullah in Mahal Fazila Bibi by reason of a deed of exchange dated 6 July 1934 obtained by the plaintiff from one Mohammad Arkan. The defendants contested the suit on various grounds. Their case was that plot No. 146 originally stood in patti Abdul Ghani (now patti Ikram Ullah) and that the entire abadi of patti Abdul Ghani which belonged to Abdul Ghani was partitioned among his five sons including two named Mohammad Ghaus and Mohammad Jan in the year 1905 and that the disputed land was allotted to Mohammad Ghaus. Mohammad Jan or his son Mohammad Arkan had no concern whatsoever with this plot of land. On 20 January 1917 in execution of a decree against Mohammad Ghaus some property of Mohammad Ghaus, including the disputed abadi plot No. 146, was sold to Mohammad Baqar : vide sale certificate Ex. A dated 12th, December 1918. On the death of Mohammad Baqar his widow Mt. Salamunnissa became owner of the plot in question.

(2.) On the plot in suit one Jahangir, a Riyaya in the village, had a house. Jhangir died leaving two sons, Roshan and Abdul. Roshan died leaving a son Jamal and Abdul died leaving a son Ali Raza and a daughter Mt. Latifan. Ali Raza also died leaving a daughter Mt. Soghra. The house of Jahangir came to be owned by these three persons, namely, Mt. Latifan, Mt. Soghra and Jamal, and these three persons sold their shares in it to Ali Abbas in the months of April a June, 1932. Thus Ali Abbas became owner of the house which stood on the abadi plot No. 146. On 18 November 1936, Ali Abbas sold the house in question to the two defendants Abdul Haq and Sirajul Haq who are own brothers. The defendants thereafter rebuilt the house on this site after obtaining the permission from Mt. Salamunnissa who was the sole zamindar of the site No. 146. In view of these facts, it was contended by the defendants that the plaintiff was not a co-sharer in plot No. 146 as he claimed; that the village Chail was not an agricultural village and there was a custom in the village under which the occupiers of houses in it had a right to transfer their houses along f with their sites; and that the suit was barred by estoppel. The Court of first I instance came to these findings: (1) Mohammad Arkan had no interest in plot No. 146 and he had no right to effect an exchange with the plaintiff. Consequently the plaintiff was not a zamindar in plot No. 146 in Patti Ikram Ullah, (2) That the village was an agricultural one and that there was no customary right in the village under which the occupiers of houses could transfer their houses along with the sites. The defendants by reason of their purchase, therefore, became owners of the materials Only; (3) Lastly, it was held that the plaintiff was estopped from bringing the present suit.

(3.) In view of these findings the suit was dismissed with costs. On appeal the learned Civil Judge found that the abadi of the village remained joint and that no private partition was established. He further found that the plaintiff on obtaining the transfer from Mohammad Arkan became a cosharer in patti Ikram Ullah and he could consequently maintain the suit. He affirmed the finding of the Court of first instance to the effect that the defendants as transferees of the house in question could not legally remain in possession thereof. The plaintiff's claim was not barred by estoppel. In view of these findings, the appeal was allowed and the suit for possession of the site was decreed and the defendants were directed to remove the materials of the house within six months. The defendants came up in second appeal to this Court. The appeal came on for hearing before a learned single Judge and it was strongly contended before him that the findings of the lower appellate Court both on the question of the private partition of the abadi as well as on the question of plaintiff's right to sue were legally incorrect. It was strongly contended that the partition chitthas which constituted the most valuable documents in proof of private partition had been wrongly excluded as in. admissible by the lower appellate Court. After hearing the matter at some length it appears that the learned Judge arrived at the conclusion that the partition chitthas had been wrongly excluded from the evidence and that the question of the. partition of the abadi as well as the question of plaintiff's title to sue had not been properly tried by the lower appellate Court and he remitted three issues to the dower appellate Court for findings. Parties were given a chance to adduce fresh evidence if they so desired. This was on 23 September 1941. In pursuance of this order the lower appellate Court submitted its findings on the three issues remitted. Parties filed objections to these findings under Order 41, Rule 26, Civil P.C. When the matter came up finally for disposal before the learned Judge he passed an order on 26th, October 1942; referring the case to a Bench of two Judges.