MOHARRAM ALI Vs. MOHAMMAD MADHU MIA

JUDGEMENT

(1.) Plaintiffs are the appellants and this appeal has been brought by special leave to consider a question of considerable public importance. It is whether a co-sharer in ejmali property, when he has been in exclusive possession of a specific and separate share thereof, well demarcated by boundaries, is entitled to retain his possession till legal partition, by an order of injunction against another co-sharer who threatens him with dispossession. Both the trial Court and the appellate Court, on a concurrent finding, answered the question in the affirmative; but the learned Single Judge of the High Court Division in revision answered in the negative.

(2.) This arises from O. C. Suit No. 175 of 1978 in the First Court of Munsif, Bajitpur. The suit land was held in jote right by Aidhar alias Haider Sheikh and on his death his only son, Hossain Ali, inherited and possessed it. On the death of Hossain Ali his four sons and one daughter inherited it. The sons were Eksad Ali (plaintiff No. 2), Safar Ali (pro-defendant No. 2), Pasand Ali (father of defendant No. 1, Madhu) and Ahad Ali, while the daughter was Aptarunnessa (pro-defendant No. 3). Ahad Ali died without any issue but before his death he had given 96-1/2 decimals of his share to plaintiff No. 1, Maharram Ali, who is son of plaintiff No. 2 Eksad Ali, by a Heba-bil-Ewaz dated 28 January 1966; at the same time Ahad Ali gave his remaining share, 65-1/2 decimals, to defendant No.1 Madhu and his stepbrother Sadhu alias Sadaruddin. Then Safar Ali gifted his entire share to plaintiff No. 1 alone by a Heba-bil-Ewaz dated 10 November 1977, and it is this Heba, which, according to plaintiffs, enraged defendant No. 1 and triggered the trouble. Case of the plaintiffs is that by an amicable partition the co-sharers have been in exclusive possession of their respective shares for about 20 years. Plaintiffs share has been separated from shares of other co-sharers by specific boundaries and it is the plaintiffs who have been paying rent all along. After the Heba-bil-Ewaz in favour of plaintiff No. 1 on 10-11-77, defendant No. 1 gave out for the first time that Aidhar Sk. alias Haider Sk. had died leaving not only one son, Hossain Ali, but also one daughter named "Unar Ma" and that from the heirs of Unar Ma including Mohammad AH and Abdul Ali defendant No. 1 purchased their shares by three registered kabalas Exts. A and A (1) dated 13 March 1978 and kabala Ext. A (4) dated 28 April 1978. These kabalas, according to plaintiffs, are false and collusive documents executed by fictitious persons as Aider Sk. had no daughter like Unar Ma'. On the strength of these kabalas defendant No. 1 threatened the plaintiffs with dispossession from their specific shares whereupon they filed the suit for permanent injunction to restrain the defendants from disturbing their possession.

(3.) The suit was contested by defendant No. 1 alone denying the material allegations of the plaintiffs. His case, as already referred to, is that Haider Sk. left a daughter named 'Unar Ma' whose heirs transferred her share by the kabalas Exts. A, A (1) and A (4) in 1978. He denied the amicable partition or exclusive possession of the plaintiffs in any specific share of the property which, he claimed, remained 'ejmali' and as such no injunction can issue against him. The trial Court on consideration of evidence adduced by both the parties found the plaintiffs to be in exclusive possession of separate and well demarcated shares, and on that basis, decreed the suit by a judgment dated 30 June 1979. This judgment was confirmed in appeal by the Additional District Judge by judgment dated 31 January 1981 with an additional finding that Aidhar Sk. had no daughter named Unar Ma, but 'Unar Ma' the ostensible executant of the disputed kabalas, was a fictitious person invented by defendant No. 1 who could not bring any witness in support of his claim excepting himself. The learned Single Judge, however, held by the impugned judgment dated 27 May 1986, in Civil Revision No. 1484 of 1981, that since the parties were co-sharers in respect of the suit land one co-sharer could not be prevented by injunction from claiming and exercising his right over any part of the property.