MD.ZAUL MIAN Vs. MD.SHAMIM

JUDGEMENT

(1.) THE defendants in TS No. 73/1983 on the file of the Subordinate Judge 2nd Court at Dhanbad are the appellants in this Letters Patent Appeal. The plaintiffs, the respondents herein, filed the suit, inter alia, for a declaration of their title over plaint. A schedule including the plaint B schedule structure and for recovery of possession on the plea that the B Schedule structure had been let out to the first defendant by their assignor Saleem Ansari in the alternative, the plaintiffs claimed recovery of possession on the strength of their title, According to the plaintiffs, the plaint. A Schedule property was obtained by one Abdul Gani on a partition between himself and his brothers. On the death of Abdul Gani. the property devolved on his four sons including Fashi Ahmad and Nabi Hussain. There was a partition among the four brothers, the sons of Abdul Gani and Schedule A property was allotted to the share of Fashi Ahmad. Fashi Ahmad sold the property to one Saleem Ansari and his brother under Annexure -7 dated 2.5.1968. There was a partition among Saleem Ansari and his brothers, and the property exclusively vested in Saleem Ansari. Saleem Ansari in turn, sold the property to the plaintiffs on 7.1.1983 and this was followed by a rectification deed dated 3.10.1983. Thus the plaintiffs had become the absolute owners of the plaint. A Schedule including the structure described as plaint B -Schedule. The structure, plaint B Schedule, was put up by Saleem Ansari and he put the same in the possession of defendant No. 1 as a tenant on a monthly rent of Rs. 250/ -. While defendant No. 1 was thus in possession as a tenant of the building, he had inducted defendant No. 2 into possession. Inspite of a notice being given of the assignment in favour of the plaintiffs, no rent has been paid by defendant No. 1 to the plaintiffs. In that situation the plaintiffs were entitled to recover possession of the plaint B - Schedule on the ground of default of rent, bonafide personal requirement and subletting by defendant No. 1 to defendant No. 2. In the alternative, the plaintiffs were entitled to recovery of possession on the strength of their title. Thus the suit was filed for recovery of possession.

(2.) THE first defendant disclaimed any right or possession over the property in question including the B -Schedule structure. He denied the letting to him by Saleem Ansari and also denied that he had sublet the building to defendant No. 2. He pleaded that he was only a worker in the workshop constructed in the B -Schedule structure by Nabi Husain, the father of defendant No. 2. Defendant no 2 was in possession. Defendant No. 2 resisted the suit. He admitted that the property had come to Ghani on a partition between himself and his brothers. He also admitted that on the death of Ghani the property devolved on his four sons including Fashi Ahmad and Nabi Hussain. But he denied that there was any partition among the four sons of Abdul Ghani. He therefore, contended that Fashi Ahmad by himself could not have sold the property. He further denied that any exclusive title was conveyed to Saleem and his brothers. He also denied the partition among Saleem and his brothers as set up in the plaint. He denied the subletting alleged. He pleaded that plaint A -Schedule belongs to the four brothers including his father Nabi Hussain who had put the construction in Schedule B property and that structure exclusively belonged to Nabi Hussain and thereafter had devolved on him. He further pleaded that the plaintiffs had no exclusive title over the property or the building. Of course he also stated that he had perfected his right over the building.

(3.) A number of witnesses were examined to speak about possession. The plaintiffs attempted to establish the subletting pleaded by them. The plaintiffs led evidence to show that the building plaint B -Schedule was constructed by Saleem subsequent to the purchase under exhibit A/7. The Trial Court, on an appreciation of the pleadings and the evidence in the case, came to the conclusion that the plaintiffs have not established the letting to defendant No. 1 as setup on the plaint and the subsequent subletting by first defendant in favour of the second defendant. In other words, the explanation for the possession of the defendants over the structure in the suit property was found to be not acceptable. The Trial Court held that on the oral evidence it was possible to hold that the structure B -Schedule was constructed by Saleem after the purchase dated 2.5.1968. Relying on paragraphs 9 and 14 of the written statement, the Trial Court inferred that defendant No. 2 had set up an exclusive title in Nabi, his father and such exclusive title could not have come into being on the admitted facts unless there had been a partition among the brothers. It thus came to the conclusion, based on the sale -deed executed by Fashi Ahmad, that the case of partition set up by the plaintiffs among the sons of Ghani is probable. The probability was sought to be strengthened by relying on the discrepancy in the oral evidence on the defence side regarding the time when the building in A -Schedule was constructed. Thus, the Trial Court upheld the case of the plaintiffs that they had title over plaint A -Schedule property and B -Schedule structure. A decree for recovery on title was, therefore, granted. On appeal by the defendants, the learned Single Judge, on a reiteration of the reason given by the Trial Court in the light of the arguments raised before him, agreed with the conclusions of the Trial Court and dismissed the appeal. The Learned Judge also read the written statement of defendant No. 2 with particular reference to paragraphs 9 and 14 thereof as containing a plea of exclusive title in Nabi. This supported the case of partition set up by the plaintiffs. The appeal was thus dismissed, confirming the decree of the Trial Court. We may notice that the learned Single Judge also did not interfere with the finding of the Trial Court that the plaintiffs have failed to establish the letting by Saleem to the first defendant, a case set up on the plaint for explaining the possession of the defendants.