Mohd. Amirullah Khan & Ors. Vs. Mohd. Hakumullah Khan & Ors.
EmailAppeal: Civil appeal No. 3028 of 1986
(From the Judgment and Order dated 18.10.85 of the Bombay High Court in S.A No. 520 of 1979)
(From the Judgment and Order dated 18.10.85 of the Bombay High Court in S.A No. 520 of 1979)
Petitioner: Mohd. Amirullah Khan & Ors.
Respondent: Mohd. Hakumullah Khan & Ors.
Apeal: Civil appeal No. 3028 of 1986
(From the Judgment and Order dated 18.10.85 of the Bombay High Court in S.A No. 520 of 1979)
(From the Judgment and Order dated 18.10.85 of the Bombay High Court in S.A No. 520 of 1979)
Judges: B.N. KIRPAL & U.C. BANERJEE.JJ.
Date of Judgment: Mar 23, 1999
Appearances:
Mr. Ranjit Kumar, Advocate for the appellants.
Mr. Bhaskar Y Kulkarni, Advocate for the respondents.
Head Note:
SPECIFIC RELIEF
Specific Relief Act, 1963
Section 5, 34 – Suit for possession and declaration- Father purchasing houses in name of sons from third wife – One of mose sons dying, leaving behind a daughter (Def No 2) – A son from second wife also pre-deceased, leaving belied son (Def No 1)- Third wife ( mother of Durviving son) bringing both defendants to said house and permit-ting to live These in- Death of third wife after expiry of hus-band defendants averting there selver as owners suit his sons and daughters from third wife plea of defendants that son of third wife (Def No 1) was benamidar and they had a right to remain in possession- Concurrent findings By lower Courts in fovour of plaintiffs Reversed by High Court. On ground of being be Hamidar only. Held that High Court fell in error in not going into question as to in whom the title would vest. Plaintiffs user recrviving sons and daughters and they would be owners. High Court order set-aside However, Def No 2 allowed to live till her life and child-ren to vacate six months after clemise
Held:
The plaintiffs, namely, the surviving sons and daughters of Abdullah Khan would become the owners of the property in question. This being so, the High Court fell in error in reversing the concurrent judgment of the courts below which had held the plaintiffs to be the owners of the property.
The court below had found that it is the plaintiffs’ mother who had permitted the defend-ants to reside with her as a member of the family. This permis-sive occupation by the defendants could not in law convert into giving them any legal right to remain in the said property. (Paras 6, 7)
JUDGEMENT:
KIRPAL, J.
1. The appellants filled a suit for declaration and possession in respect of Municipal House No. 1995 situated at Mohalla Hatai of Paithan District, Aurangabad. There was also a prayer for perpetual injunction restraining respondents Nos. 1 and 2 from interfering in the possession of the appellants/plaintiffs.
2. Briefly stated the averment in the plaint was that the father of the plaintiffs, Abduilah Khan, had three wives. The plaintiffs are the sons and daughters from the third wife. Abdul-lah Khan had bought the two adjacent houses in the name of plain-tiff No. 1 and his brother one Nazifulla Khan. Nazifulla Khan died when Abdullah Khan was still alive. It was alleged in the plaint that thereafter Amirullah Khan, plaintiff No. 1, became the sole owner. It was further the case of the plaintiffs that defendant No. 1 was a son from the second wife of Abdullah Khan and defendant brother. The said brother who was father of defend-ant No. 2 and died at the time when Abdullah Khan was still alive and the son from the second wife Lutfulla Khan, father of defend-ant No. 1 had also died earlier than Abdullah Khan. According to the plaintiffs, their mother brought to the house defendant Nos. 1 and 2 and looked after them and permitted them to reside in the house in question.
3. The mother of the plaintiffs died in 1955. Plaintiff No. 1 was not at paithan at that time. In 1961, he got to know that the defendants were trying to assert themselves as owners of a part of the said house which had been re-numbered as 1995, the origi-nal number being 166. The plaintiffs thereupon filed a revision petition before the State Government contending that the property should be re-numbered to 166 instead of 1995. It was also prayed that the plaintiffs should be shown as owners and the defendants as occupiers. The State Government agreed to this contention and the name of the plaintiff No. 1 was thereafter that in 1968 the suit was filed. In the written statement, the main contention which had been taken by the defendants was that the plaintiff No. 1 was only a benamidar of Abdullah khan and he was not owner of the same by virtue of the sale deed in his favour.
The defendants further claimed that they had been a residing in that house since 1927 and they have a right to remain in posses-sion thereof. On the pleadings before the court, the following issues were framed:
“1. Do the plaintiffs prove that they have become the owners of the suit premises in 1920 A.D as alleged ?
2. Do the plaintiff prove the pedigree as stated in Parr 6 of the plaint ?
3. Do the plaintiff prove that the possession of the defedants on suit premises is permissive in nature ?
4. Do the plaintiff. Prove that entries of defendants in Munic-ipal record are false and concocted ?
5. Is the construction made on suit property is unauthorised and liable to be demolished ?
6. Do the defendant Nos. 1 and 2 prove that the sale deed in favour of the father of plaintiffs is Benami Transaction ?
7. Do the defendants Nos. 1 and 2 prove that sale deed in favour of the father of plaintiffs is Benami Transaction ?
8. Is the court fee paid sufficient and the suit property valued ?
9. Are the plaintiffs entitled to the possession of the suit premises and the suit is within limitation ?
10. To what relief the plaintiffs are entitled ?
11. Are the plaintiff entitled for mandatory injunction of demolition of the wall ?
12. What order an what decree ?”
4. The trial court decreed the suit. It had held that plaintiff No. 1 was merely a benamidar of his father Abdullah Khan. The court further came to the conclusion that under the law of inheritance, the children of the deceased sons of Abdullah Khan did not acquire any right in the property . It is the widow and the surviving children of Abdullah Khan who inherited the proper-ty and all of them had been impleaded parties in the said suit. Decree for declaration was passed in favour of all the plaintiffs and the suit was decreed.
5. The lower appellate court dismissed the appeal of the de-fendants , but the High Court in second appeal reversed the same. The High Court Inter alia came to the conclusion that because the case which was set up by the plaintiffs with regard to claiming the title to be derived from the sale deed was not correct as they were merely benamidar , therefore, the suit should have been dismissed . The High Court did not go into the question as to who would inherit the property after the death of Abdullah Khan.
6. In our opinion, the High Court fell in error in not going into the question as to in whom the title vested on the death of Abdullah Khan. It is not in dispute that all the legal heirs of Abdullah Khan were impleaded as parties to the suit. The surviv-ing sons and daughters were impleaded as plaintiffs. Once it is found that plaintiff No. 1 was merely a benamindar of his father Abdullah Khan, then the question would arise that on the death of Abdullah Khan who would become the owner of the property. It is disputed, and in our opinion rightly so, that the plaintiffs, namely, the surviving sons and daughters of Abdullah Khan would become the owners of the property in question. This being so, the High Court fell in error in reversing the concurrent judgment of the courts below which had held the plaintiffs to be the owners of the property.
7. The High Court had also held that the defendants were in possession for s long time and that they had acquiesced to the said possession. This itself is stated to have created a right to possess the property in favour of the defendants and to that extent the defendants could resist the suit for ejectment. we are unable to agree with this conclusion. The court below had found that it is the plaintiffs’ mother who had permitted the defend-ants to reside with her as a member of the family. This permis-sive occupation by the defendants could not in law convert into giving them any legal right to remain in the said property. the High Court had not found that by adverse possession, they had become the owners of the property. Even though the defendants do not acquire any right in the property, but considering the fact that the said defendants had been residing in the premises in question since 1927, it will be appropriate for this court to mould the relief in such a way that undue hardship is not caused to them. we would like to make it clear that the High Court while hearing the second appeal ought not to have reappreciated the evidence and reversed the findings of fact arrived at by the lower appellate court.
8. While allowing the appeal and holding the appellants/plain-tiffs to be the possession of the suit premises , we direct that the wife of defendant No. 1, who is defendant No. 2 should not be ousted from the property in question during her life time. Her children should be allowed to continue to remain there as long as she is alive and they should vacate the premises six months after her demise.
9. Parties to bear their own costs.
1. The appellants filled a suit for declaration and possession in respect of Municipal House No. 1995 situated at Mohalla Hatai of Paithan District, Aurangabad. There was also a prayer for perpetual injunction restraining respondents Nos. 1 and 2 from interfering in the possession of the appellants/plaintiffs.
2. Briefly stated the averment in the plaint was that the father of the plaintiffs, Abduilah Khan, had three wives. The plaintiffs are the sons and daughters from the third wife. Abdul-lah Khan had bought the two adjacent houses in the name of plain-tiff No. 1 and his brother one Nazifulla Khan. Nazifulla Khan died when Abdullah Khan was still alive. It was alleged in the plaint that thereafter Amirullah Khan, plaintiff No. 1, became the sole owner. It was further the case of the plaintiffs that defendant No. 1 was a son from the second wife of Abdullah Khan and defendant brother. The said brother who was father of defend-ant No. 2 and died at the time when Abdullah Khan was still alive and the son from the second wife Lutfulla Khan, father of defend-ant No. 1 had also died earlier than Abdullah Khan. According to the plaintiffs, their mother brought to the house defendant Nos. 1 and 2 and looked after them and permitted them to reside in the house in question.
3. The mother of the plaintiffs died in 1955. Plaintiff No. 1 was not at paithan at that time. In 1961, he got to know that the defendants were trying to assert themselves as owners of a part of the said house which had been re-numbered as 1995, the origi-nal number being 166. The plaintiffs thereupon filed a revision petition before the State Government contending that the property should be re-numbered to 166 instead of 1995. It was also prayed that the plaintiffs should be shown as owners and the defendants as occupiers. The State Government agreed to this contention and the name of the plaintiff No. 1 was thereafter that in 1968 the suit was filed. In the written statement, the main contention which had been taken by the defendants was that the plaintiff No. 1 was only a benamidar of Abdullah khan and he was not owner of the same by virtue of the sale deed in his favour.
The defendants further claimed that they had been a residing in that house since 1927 and they have a right to remain in posses-sion thereof. On the pleadings before the court, the following issues were framed:
“1. Do the plaintiffs prove that they have become the owners of the suit premises in 1920 A.D as alleged ?
2. Do the plaintiff prove the pedigree as stated in Parr 6 of the plaint ?
3. Do the plaintiff prove that the possession of the defedants on suit premises is permissive in nature ?
4. Do the plaintiff. Prove that entries of defendants in Munic-ipal record are false and concocted ?
5. Is the construction made on suit property is unauthorised and liable to be demolished ?
6. Do the defendant Nos. 1 and 2 prove that the sale deed in favour of the father of plaintiffs is Benami Transaction ?
7. Do the defendants Nos. 1 and 2 prove that sale deed in favour of the father of plaintiffs is Benami Transaction ?
8. Is the court fee paid sufficient and the suit property valued ?
9. Are the plaintiffs entitled to the possession of the suit premises and the suit is within limitation ?
10. To what relief the plaintiffs are entitled ?
11. Are the plaintiff entitled for mandatory injunction of demolition of the wall ?
12. What order an what decree ?”
4. The trial court decreed the suit. It had held that plaintiff No. 1 was merely a benamidar of his father Abdullah Khan. The court further came to the conclusion that under the law of inheritance, the children of the deceased sons of Abdullah Khan did not acquire any right in the property . It is the widow and the surviving children of Abdullah Khan who inherited the proper-ty and all of them had been impleaded parties in the said suit. Decree for declaration was passed in favour of all the plaintiffs and the suit was decreed.
5. The lower appellate court dismissed the appeal of the de-fendants , but the High Court in second appeal reversed the same. The High Court Inter alia came to the conclusion that because the case which was set up by the plaintiffs with regard to claiming the title to be derived from the sale deed was not correct as they were merely benamidar , therefore, the suit should have been dismissed . The High Court did not go into the question as to who would inherit the property after the death of Abdullah Khan.
6. In our opinion, the High Court fell in error in not going into the question as to in whom the title vested on the death of Abdullah Khan. It is not in dispute that all the legal heirs of Abdullah Khan were impleaded as parties to the suit. The surviv-ing sons and daughters were impleaded as plaintiffs. Once it is found that plaintiff No. 1 was merely a benamindar of his father Abdullah Khan, then the question would arise that on the death of Abdullah Khan who would become the owner of the property. It is disputed, and in our opinion rightly so, that the plaintiffs, namely, the surviving sons and daughters of Abdullah Khan would become the owners of the property in question. This being so, the High Court fell in error in reversing the concurrent judgment of the courts below which had held the plaintiffs to be the owners of the property.
7. The High Court had also held that the defendants were in possession for s long time and that they had acquiesced to the said possession. This itself is stated to have created a right to possess the property in favour of the defendants and to that extent the defendants could resist the suit for ejectment. we are unable to agree with this conclusion. The court below had found that it is the plaintiffs’ mother who had permitted the defend-ants to reside with her as a member of the family. This permis-sive occupation by the defendants could not in law convert into giving them any legal right to remain in the said property. the High Court had not found that by adverse possession, they had become the owners of the property. Even though the defendants do not acquire any right in the property, but considering the fact that the said defendants had been residing in the premises in question since 1927, it will be appropriate for this court to mould the relief in such a way that undue hardship is not caused to them. we would like to make it clear that the High Court while hearing the second appeal ought not to have reappreciated the evidence and reversed the findings of fact arrived at by the lower appellate court.
8. While allowing the appeal and holding the appellants/plain-tiffs to be the possession of the suit premises , we direct that the wife of defendant No. 1, who is defendant No. 2 should not be ousted from the property in question during her life time. Her children should be allowed to continue to remain there as long as she is alive and they should vacate the premises six months after her demise.
9. Parties to bear their own costs.
