APCH160000732017
IN THE COURT OF THE XI ADDITIONAL DISTRICT JUDGE::
PILER.
Present: A.Mahesh, XI Additional District Judge, Piler.
Friday, the 08th day of May, 2026
A.S No.05 of 2017
(Appeal filed under Order XLI Rule 1 of The Code of Civil Procedure)
Between: 1)Smt.Beebijan 2)K.Ahmed Ali 3)Smt.S.Fahmida 4)K.Shoukath Ali 5)K.Ghousunni
6)S.Nayeem Taj..Appellants/plaintiffs
And
1)K.Azeemunnisa 2)S.Usman Pyaru 3)S.Fathima Be 4)S.Sahira Begum 5)S.Javahira Begum 6)S.Hajira 7)S.Ashwaq Ahmed 8)S.Ahmed 9)S.Irshad Ahmed
10)S.Fayaz Ahmed..Respondents/defendants
(Respondents no. 3 to 10 are legal representatives of deceased 2nd defendant) ( Appeal against the Judgment and Decree in O.S No.171 of 1997 dated 10-09- 2009 on the file of the Court of the Junior Civil Judge's Court, Vayalpad)
Between:
1)Kolkar Ghouse Mohiddin (died) 2)Smt.Beebijan 3)K.Khader Be (died) 4)K.Ahmed Ali 5)Smt.S.Fahmida 6)K.Shoukath Ali 7)K.Ghousunni 8)S.Nayeem Taj … Plaintiffs
And
1)K.Azeemunnisa 2)S.Shafi Ahmed 3)S.Usman Pyaru… Defendants
This Appeal came for the final hearing before me in the presence of Sri.P.Chand Basha, learned Advocate for the Appellants/ plaintiffs and of Sri.G.Shiva Kumar Reddy, learned Advocate for Respondents/defendants, and the matter having stood over to this day for consideration, this court delivered the following:
J UD G M E N T
This unsuccessful Appellants/ Plaintiffs (hereinafter referred to as the Plaintiffs for short) filed this Appeal assailing the impugned decree and judgment dated 10-09-2009 of the learned Junior Civil Judge court, Vayalpad (for short ‘trial court’), made in O.S No.171 of 1997.
2. This Court of first appeal is the last Court of fact. Hence, it is necessary to refer to the pleadings of both the sides. In this appeal suit, the parties are being referred to as ‘the plaintiffs’ and ‘the defendants’ as arrayed
before the trial court for convenience and clarity.
3. The plaint averments in brief, are as follows: The plaintiff aver that the suit property originally belonged to one K. Mohiddin saheb who died in the year 1941, and he had two sons namely Rahiman saheb and Bashu saheb and a daughter by name Maju Be, and Rahiman saheb predeceased his father in the year 1937 leaving behind him his son Sarvar saheb, who is the husband of
Azeemunnisa, the 1st defendant. The plaintiff aver that after the death of
Mohideen saheb in the year 1941, Bashu saheb succeeded to the property by giving cash to Maju Bee towards her share, and the said Maju Bee was married to Abdul Razack who died in the year 1955, and as Maju Bee’s husband Abdul
Razack died while the children were young, Bashu brought his sister to his house and was looking after her children and brought them up and got them educated and married, and after the marriage Maju Bee and her son were residing at Khandriga. Bashu saheb died in the year 1977, and after the death of
Bashu saheb in the year 1977 the plaintiff along with his sister Beebijan succeeded to the properties.
The plaintiff further aver that as the 1st plaintiff constructed a house and he shifted his family to the newly constructed house, and then the 2nd defendant and the 1st defendant’s husband requested the 1st plaintiff to permit them to reside in the suit property so as to enable them to educate their children at
Gurramkonda, and out of affection towards the husband of the 1st defendant and paternal aunt’s children the 1st plaintiff allowed defendants 1 and 2 to reside in the plaint schedule property, and hence their possession is permissive.
The plaintiff further avers that the 1st plaintiff is not literate, and he knows only how to sign, and taking advantage of the illiteracy of the 1st plaintiff and absence of his son, the defendants seem to have created some documents and were proclaiming that they have got right over the suit property, and the 1st plaintiff has been requesting the defendants 1 and 2 to vacate the suit property and deliver possession of the same, and they have been promising to vacate but ultimately failed to do so, and hence the 1st plaintiff got issued a legal notice to the defendants, and in the notice the advocate under the mistaken impression has stated that the 1st defendant has got 1/2 share in the suit property though actually she is not entitled.
The plaintiff further avers that the defendants after the receipt of the notice got issued a reply notice that the 1st defendant succeeded to the property of Mohideen saheb through her father-in-law Rahiman saheb. He further avers that, as Rahiman saheb having predeceased his father, his children are not entitled for any share, and hence the 1st defendant succeeding to the 1/2 share does not arise, and it is also stated in the reply notice that Bashu saheb has sold his share to Abdul Gaffar saheb on 21.9.1939, but the sale deed reveals that one
Khasim saheb has executed the sale deed not Bashu saheb, and he has never been called as Khasim saheb, and he has no alias name, and therefore by misuse of the said documents Gaffar saheb does not derive any right over the suit property and consequently the defendants will not derive any right. And hence the plaintiffs have filed the suit for declaration of right and title.
4. The averments in the written statement of the defendants, in brief, are as follows: The defendant contends that the suit is not maintainable, and he further contends that, it is true that the suit property originally belonged to Kolkar
Mohideen Saheb @ Pedda Mohideen Saheb, but the averments that Kolkar
Mohideen Saheb died in the year 1941 are absolutely false, and he died in the year 1930, and the said Kolkar Mohideen Saheb had two sons, namely (1)
Rahiman Saheb and (2) Khasim Saheb @ Bashu Saheb i.e. the father of the plaintiffs 1 and 2, and after the demise of Kolkar Mohideen Saheb @ Pedda
Mohideen Saheb, his grandson namely Sarvar Saheb s/o Rahiman Saheb and
Khasim Saheb @ Bashu Saheb had succeeded to his 1/2 share each in the suit property and they were enjoying the same, and Mazu Bee i.e. the mother of the 2nd defendant did not take any share in the suit property. The defendant further contend that, the allegations that Kolkar Rahiman Saheb died in the year 1937 are absolutely false, but he died in the year 1925 leaving behind him his son
Sarvar Saheb i.e. the husband of the 1st defendant.
The defendant contends that the averments that after the death of
Mohideen Saheb, Bashu Saheb succeeded to the property by giving cash to
Maju Bee and that her share, and that Abdul Razak i.e. the husband of Mazu
Bee died in the year 1955 are not correct, but he died in the year 1954, and the other avermetns that after the demise of Abdul Razak, Bashu Saheb brought his sister Mazu Bee and her children to his house and brought them up and got them educated and married are false, and Bashu Saheb never looked after the welfare of either Mazu Bee or her children, and it is Abdul Gaffar who had looked after the welfare of Mazu Bee and her children. The defendants further contend that, the averments that after the marriage Mazu Bee and her children were residing in Kandriga village are not correct, but it is true that Basha Saheb died in the year 1977. The defendant contend that, during the lifetime of the plaintiffs’ father, Kolkar Khasim Saheb @ Bashu Saheb, had sold away his 1/2 share in the suit properties to the 3rd defendant’s father under the registered sale deed dated 21.9.1939 for a valid consideration of Rs.25/- and put him in possession of the same on the same day, and since then, the 3rd defendant’s father Abdul Gaffar Saheb had been enjoying the above said 1/2 share in the suit property till his death and afterwards the 3rd defendant had succeeded to the same and he has been enjoying the said property without any interruption.
The defendant further contends that the averments that the 1st plaintiff got constructed a house and he shifted his family to the newly constructed house are false, and the 1st plaintiff had illegally constructed a house in the second defendant’s site which is situated at a distance of 50 yards to the south of the suit property, and prior to that, the 1st plaintiff was residing in a round hut situated on the adjacent west to the said newly constructed building., and the site occupied by the round hut and newly constructed house also belongs to the 2nd defendant and the 1st plaintiff has no manner of right in it. The defendant further contend that, the averments that the 2nd defendant and 1st defendant’s husband requested the 1st plaintiff to permit them to reside in the suit property so as to enable them to educate their children at Gurramkonda, and out of affection towards the husband of the 1st defendant and paternal aunt children, the 1st plaintiff allowed the defendants 1 and 2 to reside in the suit property are all false.
The defendant contends that the averments, that the 1st plaintiff is not literate, and that the 1st plaintiff has been requesting the defendants 1 and 2 to vacate the suit property are false, but the 1st plaintiff got issued a legal notice
dated 13.5.97 with false and frivolous allegations, for which the defendants got
issued a reply notice dated 17.5.97 with all true facts. The defendant further contend that, after the demise of Kolkar Mohideen Saheb @ Pedda Mohideen
Saheb, Kolkar Sarvar Saheb had succeeded to the remaining half share in the suit property and he had been enjoying the same, and after the demise of Kolkar
Sarvar Saheb, his wife Hazee Munnisa i.e. the 1st defendant succeeded to the above said 1/2 share in the suit property and she had been enjoying the same, and hence the plaintiff No.1 has categorically and clearly admitted in his notice that 1/2 share in the suit property is in actual possession and enjoyment of the 1st defendant. The defendant further contend that, on 27-3-1997, the 1st defendant had executed the registered Gift deed in favour of the 2nd defendant in respect of her 1/2 share in the suit property and he was delivered possession on the same day, and since then, the 2nd defendant has been enjoying the above said 1/2 share in the suit property openly, continuously without any interruption.
The defendant further contends that, the averments that the 1st defendant succeeded to the property of Mohideen Saheb through her father-in-law
Rahiman Saheb and Rahiman Saheb pre-deceased his father and so his children are not entitled for any share are absolutely false, and the 1st defendant had succeeded to the 1/2 share through her husband Kolkar Sarvar Saheb, s/o. late
Rahiman Saheb, and further contend that, Bashu Saheb was also called as
Khasim Saheb. The defendant further contend that, the plaintiffs 1 and 2 does not have any right in the suit property and hence prayed for the dismissal of the suit.
5. Taking into consideration the above pleadings the trial Court had framed the following issues for trial:
1) Whether the plaintiffs are entitled for declaration of their right and title over the plaint schedule property and entitled to delivery of possession of suit property as prayed for ?
2) Whether the suit is barred by limitation ?
3) Whether the 1st defendant and her predecessors had perfected their right and title to the half share of the plaint schedule property by adverse possession ?
4) To what relief?
6. During the course of trial before the trial Court, the plaintiff and his witness were examined as PW.1 to 3 and Ex. A1 to A16 were marked on the side of the plaintiff. Thereafter the defendants and his witnesses were examined as DW. 1 to 4 and exhibits B1 to B25 were marked. On merits, the trial Court dismissed the suit with costs.
7. Aggrieved of the said judgment and decree the trial Court, the unsuccessful plaintiffs had preferred this appeal on various grounds. The main contentions in the grounds of appeal are that:
a) The appellants submits that, the Decree and Judgment of the trial court is against to law, weight of evidence and probabilities of the case, and the trial court failed to consider the fact that the defendants categorically admitted in their written statement originally filed by them that the suit property Consisting of 3 oblong huts and vacant site belonged to the grand father of Plaintiffs by name Mohiddin Saheb.
b) The appellants submits that, the trial court made error in not considering the evidence of all plaintiff side witnesses and also DW3 who categorically deposed that the 1st Defendant is only a licensee from the father of the Plaintiffs, and a permissive possession holder cannot avail the plea of Adverse possession
c) The appellants submits that, the trial court having rightly observed that the father in law of the 1st defendant predeceased his father and also the husband of the 1st defendant is not entitled to any share in the properties of his grand father ought to have held that Plaintiffs father Bashu Saheb alone succeeded to the entire estate of Mohiddin Saheb
d) The appellants submits that, the trial court erred in holding that by Ex A13 legal Notice the Plaintiffs are estopped and failed to follow the principle that there can not be an estoppel against Law.
e) The appellants submits that, the trial court failed to note that no credence can be attached to a finger prints expert report until and unless it is marked and the giver of the opinion is subjected to cross examination as to the veracity of his conclusions.
f) The appellants submits that, the trial court erred in not considering the principles of Mohammadan Law that a widow will be entitled for only 1/4th share in absence of the children as a Quranic sharer and ought to held that the plaintiffs succeeded to the entire property
8. Heard arguments of the learned counsel for Appellants and defendants. This court perused the material on record including the impugned orders and the grounds of appeal urged by the plaintiffs and gave thoughtful consideration.
8. Now the points that arise for consideration in this Appeal are:
1) Whether the entire plaint schedule property originally belonged to Kolkar
Mohiddin Saheb, or if the two eastern oblong huts were independently constructed and owned by the second defendant's father, Abdul Razack?
2) Whether the plaintiffs' father, Bashu Saheb, is the same person as "Khasim
Saheb," and whether he validly sold his half-share in the western oblong hut to the third defendant's father under the registered sale deed dated 21-09-1939?
3) Whether Sarvar Saheb validly succeeded to a half-share in the western oblong hut, thereby establishing the legal validity of the registered gift deed
dated 27-03-1997 executed by his wife (the first defendant) in favor of the
second defendant?
4) Whether the defendants' occupation of the property is based on permissive possession granted by the plaintiffs, or if the suit is barred by limitation and the defendants have perfected their title through adverse possession?
9. Point No.1:- Whether the entire plaint schedule property originally belonged to Kolkar Mohiddin Saheb, or if the two eastern oblong huts were independently constructed and owned by the second defendant's father, Abdul
Razack.?
10.Answered:- The appellants in their appeal have contended that the decree and judgment of the trial court is against the law, weight of evidence and probabilities of the case and is vitiated by an incorrect approach and appreciation of evidence on record inasmuch as the trial court failed to consider the fact that the defendants categorically admitted in their written statement originally filed by them that the suit property consisting of 3 oblong huts and vacant site belonged to the grandfather of the plaintiffs by name Mohiddin
Saheb and that the trial court erred in not considering the evidence of all the
PWs and also DW3 who categorically deposed that the 1st defendant is only a licensee from the father of the plaintiffs with the result that the entire suit property including the three oblong huts must be held to have originally belonged to Kolkar Mohiddin Saheb alone without any portion thereof being independently owned or constructed by the father of the second defendant.
11.In their pleadings, the plaintiffs have categorically pleaded that the suit property originally belonged to one K. Mohiddin Saheb who died in the year 1941 and that after his death Bashu Saheb succeeded to the property by giving cash to Maju Bee towards her share with the result that the entire suit property consisting of three oblong huts within the boundaries of East: Sandu Veedhi,
West: Raja Veedhi, North: Midde of S. Kamal Basha and South: Midde of K.
Bismilla and Ashmath Peer, passed to the father of the plaintiffs and thereafter to the plaintiffs themselves. The defendants in their pleadings, admitted that the suit property originally belonged to Kolkar Mohideen Saheb @ Pedda
Mohideen Saheb but went on to plead that after his death his grandson Sarvar
Saheb and Khasim Saheb @ Bashu Saheb succeeded to half share each while
Maju Bee did not take any share and that the two eastern oblong huts were later asserted in the additional pleadings to have been constructed by the father of the second defendant on Grama Kantam land with the western oblong hut alone belonging to Mohiddin Saheb.
12.PW1 the first plaintiff deposed that the suit property originally belongs to his grandfather Kolkar Mohiddin Saheb who had two sons Rahiman Saheb and
Bashu Saheb and one daughter Maju Bee with the three oblong huts each consisting of 6 ankanams lying within the plaint boundaries and that after the death of Mohiddin Saheb his father Bashu Saheb succeeded the properties as
Rahiman Saheb had predeceased him. PW2 deposed that the suit property is bounded by East: Sandhu Veedhi, West: Bazaar Street, North: house of Kamal
Basha and South: house of Bismilla Khan with three oblong huts originally belonging to Kolkar Mohiddin Saheb and that the two oblong huts on the eastern side stand in the name of Bashu Saheb. PW3 similarly deposed that the suit property originally belonged to Kolkar Mohiddin Saheb with the three oblong huts and trees lying within the boundaries and that after the death of
Mohiddin Saheb the suit property devolved upon Bashu Saheb who was residing therein.
13.On the defendants’ side DW1 the second defendant deposed that out of the three oblong huts shown in the suit property the oblong hut on the western side is of Mohiddin Saheb while the remaining two oblong huts on the eastern portion belong to his father Abdul Razack who constructed them, and that the door number of his father’s two huts is 4/40 with the western hut bearing door
No. 4/46. DW2 the first defendant in her deposition stated that the oblong hut on the western side originally belonged to Kolkar Mohideen Saheb while the two oblong huts on the eastern side were constructed by the second defendant’s father Abdul Razack who was in possession and enjoyment during his lifetime and after his demise the second defendant has been in possession. DW3 the third defendant deposed that the two oblong huts on the eastern side were constructed by Abdul Razack and that the plaintiffs and their predecessors have no right title or possession over any portion of the suit property. The trial court in its judgment observed that the plaintiffs have failed to prove that the entire suit property originally belongs to their grandfather Mohiddin Saheb inasmuch as PWs 2 and 3 admitted in cross-examination that the father of the second defendant had been living in the eastern two oblong huts and that Sandhu
Veedhi is situated on the further eastern side beyond the house of Abdul Razack which reveals that there is the house of Abdul Razack father of the second defendant in between the suit property and the eastern boundary claimed by the plaintiffs.
14.Under the principles of law governing suits for declaration of title and recovery of possession, the plaintiff who seeks declaration must prove his title by cogent and reliable evidence and the burden lies squarely on the plaintiff to establish that the entire property described in the suit schedule belonged to his predecessor and not on the defendant to disprove the same. The initial admission in the written statement that the suit property originally belonged to
Kolkar Mohideen Saheb cannot be read in isolation when the additional written statement and the consistent oral evidence of DW1, DW2 and DW3 along with the documentary evidence of house tax receipts Exs.B5 to B9, electricity receipts Ex.B11, revision register extracts Exs.B22 and B23 and voters lists clearly demarcate the eastern two oblong huts as belonging to and possessed by the family of Abdul Razack and thereafter by the second defendant with separate door numbers 4/40 and the western oblong hut alone traceable to
Mohiddin Saheb with door No. 4/46. The admissions of PW2 and PW3 in cross- examination that the second defendant is residing in the two oblong huts on the eastern side and that Abdul Razack had been living in the eastern portion further corroborate the defendants’ version that the eastern huts were independently constructed and owned by Abdul Razack on Grama Kantam poramboke land and were never part of Mohiddin Saheb’s estate. The Trial court therefore rightly appreciated the evidence on record and held that the plaintiffs have failed to prove their title over the eastern two oblong huts while the western oblong hut alone could trace its origin to Mohiddin Saheb.
15.In the result on this point for consideration the trial court judgment does not call for any interference and is hereby upheld in its entirety on the issue of ownership of the suit property inasmuch as the appellants have failed to demonstrate any perversity or illegality in the finding that the two eastern oblong huts were independently constructed and owned by the second defendant’s father Abdul Razack and that the plaintiffs have not established title over the entire suit property as claimed.
16.Point No. 2:- Whether the plaintiffs' father, Bashu Saheb, is the same person as "Khasim Saheb," and whether he validly sold his half-share in the western oblong hut to the third defendant's father under the registered sale deed dated 21-09-1939?
17.Answered:- The appellants in the appeal have contended that the trial court erred in not considering the principles of Mohammadan Law while under the overall challenge they have specifically assailed the trial court’s acceptance of the sale deed dated 21-09-1939 by arguing through the plaint and the evidence led that the plaintiffs’ father was never called as Khasim Saheb and had no alias name whatsoever with the result that the document executed by one Khasim
Saheb could not be attributed to Bashu Saheb and therefore the said sale deed must be held to be a fictitious document brought into existence by manipulations with no valid conveyance of any half-share in the western oblong hut to the father of the third defendant.
18.In the pleadings, the plaintiffs have pleaded that the defendants in their reply notice stated that Bashu Saheb has sold his share to Abdul Gaffar Saheb on 21-09-1939 but the registered copy of the sale deed reveals that one Khasim
Saheb has executed the sale deed not Bashu Saheb and that he has never been called as Khasim Saheb and has no alias name with all documents and sale deeds revealing him only as Bashu Saheb and therefore the said document must be a fictitious document brought into existence by manipulations and consequently neither Gaffar Saheb nor the defendants derive any right over the plaint schedule property. The defendants in their pleadings contended that the father of the plaintiffs Kolkar Khasim Saheb @ Bashu Saheb had sold away his half-share in the suit properties to the 3rd defendant’s father under the registered sale deed dated 21-09-1939 for valid consideration of Rs.25/- and put him in possession on the same day and that Bashu Saheb was also called as Khasim
Saheb. In the additional pleadings the defendants reiterated that the plaintiffs’ father Bashu Saheb @ Khasim Saheb and Sarvar Saheb had divided the western oblong hut in the year 1935 or thereabouts and thereafter the father of the plaintiffs sold away his half-share under the registered sale deed dated 21-09- 1939.
19.PW1 the first plaintiff deposed in his chief examination that his father name is Bashu Saheb and he does not know one Khasim Saheb and his father was never called as Khasim Saheb and in all correspondences his father’s name is mentioned as Bashu Saheb and he filed receipts and letters in the name of
Bashu Saheb marked as Exs.A-2 to A-10 and Exs.A-11 and A-12 showing the name as Bashu Saheb son of Kolkar Mohiddin Saheb and that his father never sold the suit property to the defendants at any point of time. In cross- examination PW1 denied the suggestion that his father was called as Bashu
Saheb alias Khasim Saheb and denied that during the lifetime of his father he had sold away his half-share to Abdul Gaffar under registered sale deed dated 21-09-1939. PW2 and PW3 similarly deposed that the plaintiffs’ father is called as Bashu Saheb only and has no other name and denied that Bashu Saheb was also called as Khasim Saheb.
20.On the defendants’ side DW1 the second defendant deposed that the plaintiffs’ father’s name is Khasim Saheb who is also called as Bashu Saheb and that on 21-09-1939, Khasim Saheb father of the plaintiff sold away the southern half-share of the western oblong hut to Abdul Gaffar Saheb father of
D-3 for Rs.25/- under registered sale deed wherein it is recited that the remaining half-share belonged to Sarvar Saheb and that the boundaries in the sale deed match the property. DW2 the first defendant in her deposition stated that the plaintiffs’ father had sold away his half-share in the said oblong hut to the 3rd defendant’s father under registered sale deed dated 21-09-1939 wherein it is recited that the other half-share belonged to late Sarvar Saheb. DW3 the third defendant deposed that on 21-09-1939 the plaintiffs’ father Kolkar Khasim
Saheb s/o Pedda Mohiddin Saheb had sold away his half-share to his father
Abdul Gaffar Saheb under the registered sale deed marked as Ex.B-24 with boundaries east: residential oblong hut of Shaik Abdul Razzack, west: Raja
Veedhi, north: house of Syed Meer Saheb, south: house of Kolka Bismillah
Saheb and that since then his father was in possession.
21.The trial court in its judgment held that the father of the plaintiffs is also called as Kolkar Khasim Saheb and he sold away his half-share under Ex.B-24 inasmuch as the thumb impression of Kolkar Bashu Saheb on Ex.A-15 and the thumb impression of Kolkar Khasim Saheb on Ex.B-24 are one and the same as per the Finger Print Bureau report and that Exs.B-1 to B-4 voters lists admitted by PW1 in cross-examination categorically speak that the father of the plaintiff is also called as Khasim Saheb.
22.Under the applicable principles of law relating to proof of identity of executant of a document and validity of registered sale deed the court is required to appreciate the oral and documentary evidence in its entirety including expert opinion on thumb impressions and admissions in voters lists and the burden is on the party denying the execution and identity to disprove the same by cogent evidence while a registered document carries a presumption of due execution unless rebutted. The plaintiffs’ consistent denial of the alias name and the sale transaction is confronted by the defendants’ positive evidence of the registered sale deed Ex.B-24 executed by Kolkar Khasim Saheb with recitals acknowledging the half-share of Sarvar Saheb and the matching boundaries and the forensic expert opinion linking the thumb impressions on
Ex.B-24 with the admitted thumb impression of Bashu Saheb on Ex.A-15 which was executed by the plaintiffs themselves and further corroborated by the voters lists Exs.B-1 to B-4 wherein PW1 admitted in cross-examination. The trial court therefore correctly appreciated that the alias name Khasim Saheb @ Bashu
Saheb stands proved and the sale deed dated 21-09-1939 is a valid conveyance of the half-share in the western oblong hut for valid consideration with delivery of possession to Abdul Gaffar Saheb and thereafter to the third defendant.
23.In the result on this point for consideration the trial court judgment does not call for any interference and is hereby upheld in its entirety inasmuch as the appellants have failed to demonstrate any perversity or illegality in the finding that the plaintiffs’ father Bashu Saheb is the same person as Khasim Saheb and that he validly sold his half-share in the western oblong hut to the third defendant’s father under the registered sale deed dated 21-09-1939 with the result that the plaintiffs have no right title or interest over the said half-share.
24.Point No.3:- Whether Sarvar Saheb validly succeeded to a half-share in the western oblong hut, thereby establishing the legal validity of the registered gift deed dated 27-03-1997 executed by his wife (the first defendant) in favor of the second defendant?
25.Answered:- The appellants in their appeal have contended that the trial court having rightly observed that the father-in-law of the 1st defendant predeceased his father and also the husband of the 1st defendant is not entitled to any share in the properties of his grandfather ought to have held that the plaintiffs’ father
Bashu Saheb alone succeeded to the entire estate of Mohiddin Saheb and further contended that the trial court erred in not considering the principles of
Mohammadan Law that a widow will be entitled for only 1/4th share in the absence of children as a Quranic sharer and ought to have held that the plaintiffs succeeded to the entire property with the result that Sarvar Saheb the husband of the 1st defendant could not have succeeded to any half-share in the western oblong hut and therefore the registered gift deed dated 27-03-1997 executed by the 1st defendant in favour of the 2nd defendant is wholly invalid and confers no right or title upon the 2nd defendant.
26.In their pleadings the plaintiffs have pleaded that Rahiman Saheb predeceased his father Mohiddin Saheb in the year 1937 leaving behind his son
Sarvar Saheb husband of the 1st defendant and that after the death of Mohiddin
Saheb in 1941 Bashu Saheb alone succeeded to the property by giving cash to
Maju Bee and that the 1st defendant and 2nd defendant are only permissive occupants with no right, title or interest and that the reply notice claiming succession through Rahiman Saheb is false because Rahiman Saheb having predeceased his father and his children are not entitled for any share. The defendants in their pleadings contended that after the demise of Kolkar
Mohideen Saheb his grandson Sarvar Saheb s/o Rahiman Saheb and Khasim
Saheb @ Bashu Saheb succeeded to half-share each and after the demise of
Sarvar Saheb his wife the 1st defendant succeeded the half-share and she executed a registered gift deed on 27-03-1997 in favour of the 2nd defendant in respect of her half-share and put him in possession. In the additional pleadings the defendants pleaded that after the death of Mohiddin Saheb the plaintiffs’ father Bashu Saheb @ Khasim Saheb and Sarvar Saheb divided the western oblong hut into two equal shares in 1935 or thereabouts and thereafter the plaintiffs’ father sold his half-share while the remaining half-share of Sarvar
Saheb was enjoyed by him and after his death by the 1st defendant who gifted it to the 2nd defendant.
27.PW1 deposed that Rahiman Saheb the first son of Mohiddin Saheb predeceased Mohiddin Saheb about 60 years ago and after the death of Rahiman
Saheb and Mohiddin Saheb his father Bashu Saheb succeeded the properties and that the 1st defendant is his sister-in-law with no right over the suit property and is only a permissive occupant. PW2 deposed that Rahiman Saheb predeceased his father and on the death of Mohiddin Saheb the property was succeeded by his second son Bashu Saheb and that Sarvar Saheb did not succeed any property of his grandfather. PW3 deposed that the first son of
Mohiddin Saheb predeceased his father about 15 years ago and on the demise of
Mohiddin Saheb the suit property devolved upon Bashu Saheb and that the 1st defendant is brother’s daughter-in-law of Bashu Saheb with no right over the suit property.
28.DW1 the second defendant deposed that after the death of Mohiddin
Saheb in 1930 the western oblong hut was devolved upon Sarvar Saheb and
Khasim Saheb who divided it into two half-shares in 1935 with Sarvar Saheb enjoying his northern half-share till his death on 03-03-1963 and thereafter the 1st defendant succeeded and gifted the same to him under registered gift deed
dated 27-03-1997 marked as Ex.B-12. DW2 the first defendant stated in her
evidence that after the demise of Mohiddin Saheb the plaintiffs’ father and her husband Sarvar Saheb divided the western oblong hut and the plaintiffs’ father sold his half-share while she had been residing in the western oblong hut as absolute owner since her marriage and executed the registered gift deed Ex.B- 12 in favour of the 2nd defendant. DW3 deposed that the northern half portion was in possession of Sarvar Saheb and after his demise the 1st defendant enjoyed it and gifted it to the 2nd defendant.
29.The trial court in its judgment observed that it is an admitted fact that the father-in-law of the 1st defendant predeceased his father and therefore under
Section 53 of Mulla’s Mahomedan Law the husband of the 1st defendant was not entitled to claim any share in the property of his grandfather and the only son i.e. the father of the plaintiffs alone was entitled but nevertheless held that the plaintiffs themselves admitted the half-share of the 1st defendant in the legal notice Ex.A-13 and that the 1st defendant and her husband had been enjoying the half-share for more than 60 years and perfected title by adverse possession and therefore the gift deed is valid.
30.Under the applicable principles of Mohammadan Law as enunciated in
Mulla’s Principles of Mahomedan Law the rule of representation is not recognised in Sunni law and the expectant right of an heir apparent does not pass by succession to his own heirs so that when a son predeceases his father the children of the predeceased son do not inherit any share in the grandfather’s property upon the latter’s death and the entire estate passes to the surviving son as illustrated in Section 53. The trial court correctly appreciated this legal position when it observed that the husband of the 1st defendant was not entitled to any share by way of succession from his grandfather Mohiddin Saheb because his father Rahiman Saheb had predeceased Mohiddin Saheb yet the court proceeded to hold that the plaintiffs by issuing the legal notice Ex.A-13 admitting the half-share of the 1st defendant in the suit property and calling upon the defendants for partition had themselves recognised the 1st defendant’s possession and enjoyment of the half-share which had continued uninterrupted for decades and thereby the 1st defendant had perfected her title by adverse possession as well thereby validating the subsequent gift deed dated 27-03-1997 executed by her in favour of the 2nd defendant. The trial court further noted that the evidence of PWs 2 and 3 and the documents produced by the defendants including the voters lists and tax receipts clearly established long-standing exclusive possession of the 1st defendant and later the 2nd defendant in the northern half of the western oblong hut which could not be disturbed by a mere technical application of the rule of non-representation once the parties themselves had acted upon the understanding of equal shares for a very long time.
31.In the result on this point for consideration the trial court judgment does not call for any interference or reversal and is hereby upheld in its entirety inasmuch as although Sarvar Saheb did not validly succeed to any half-share by inheritance under Mohammadan Law, the plaintiffs’ own admission in Ex.A-13 coupled with the proved long uninterrupted possession of the 1st defendant and her husband for over sixty years operated to perfect title by adverse possession thereby rendering the registered gift deed dated 27-03-1997 executed by the 1st defendant in favour of the 2nd defendant legally valid and effective and the appellants have failed to show any error of law or misappreciation of evidence that would warrant modification of the said finding.
32.Point No. 4:- Whether the defendants' occupation of the property is based on permissive possession granted by the plaintiffs, or if the suit is barred by limitation and the defendants have perfected their title through adverse possession?
33. Answered:- The appellants in their appeal have contended that the trial court erred in not considering the evidence of all the PWs and also DW3 who categorically deposed that the 1st defendant is only a licensee from the father of the plaintiffs and that a permissive possession holder can never avail the plea of adverse possession and further contended that, the trial court erred in holding that by Ex.A13 legal notice the plaintiffs are estopped and failed to follow the principle that there cannot be an estoppel against law with the overall result that the defendants’ occupation of the suit property must be held to be purely permissive possession granted out of affection by the plaintiffs’ father and continued by the plaintiffs themselves thereby rendering the plea of adverse possession unavailable to the defendants and the suit not barred by limitation while the finding of estoppel based on Ex.A13 is legally untenable since estoppel cannot operate against a statute or established principles of
Mohammadan Law of succession.
34.In their pleadings the plaintiffs have pleaded that after the 1st plaintiff constructed a new house and shifted his family, the 2nd defendant and the husband of the 1st defendant requested the 1st plaintiff to permit them to reside in the suit property so as to enable them to educate their children at
Gurramkonda, and out of affection towards the husband of the 1st defendant and paternal aunt’s children the 1st plaintiff allowed defendants 1 and 2 to reside in the suit property so their possession is permissive and that the 1st plaintiff has been requesting the defendants 1 and 2 to vacate the suit property and deliver possession but they have been promising to vacate but ultimately failed to do so and therefore the legal notice Ex.A13 was issued. The defendants in their pleadings denied the allegations of permissive possession and contended that the 1st plaintiff had illegally constructed a house in the second defendant’s site and that the allegations that the 2nd defendant and 1st defendant’s husband requested the 1st plaintiff to permit them to reside are absolutely false and that their possession is not permissive while in the additional pleadings they pleaded that the permissive possession as set up by the plaintiffs is false and that the defendants are in open continuous and uninterrupted possession and enjoyment in their own independent right and title by paying house tax , obtaining electricity connections etc. and have been living in the property for nearly 40 years and above long over the statutory period and have thus perfected their right and title by adverse possession as well and that the suit is patently barred by limitation.
35.PW1 deposed that after construction of the new house he shifted his residence and the 2nd defendant and 1st defendant’s husband requested his father for permission to reside in the suit property out of affection and his father permitted them so their possession is permissive and that he demanded the defendants to vacate but they did not and issued notice Ex.A13. PW2 and PW3 corroborated that the 1st defendant is residing with the permission of Bashu
Saheb as permissive possession and denied absolute rights.
36.DW1 the second defendant deposed that the allegations of permissive possession are absolutely false and that he and the 1st defendant have been in possession in their own independent right since long and produced house tax receipts Exs.B5 to B9, B16 and B17, electricity receipts Ex.B11, revision register extracts Exs.B22 and B23 and voters lists showing continuous possession and enjoyment without interruption. DW2 the first defendant stated that she has been residing in the western oblong hut as absolute owner since her marriage and after the gift deed Ex.B12, the 2nd defendant is in possession and that the plaintiffs have no right title or possession. DW3 deposed that the plaintiffs and their father have no right title or possession over any portion and never enjoyed the property at any time.
37.The trial court in its judgment held that the 1st defendant and her predecessors have perfected their right and title to the half-share by adverse possession inasmuch as the plaintiffs themselves admitted the half-share of the 1st defendant in Ex.A13 and called for partition and that the 1st defendant and her husband had been enjoying the share for more than 60 years uninterruptedly and therefore the plea of permissive possession cannot stand and the suit is not barred by limitation but the defendants have perfected title by adverse possession.
38.Under the applicable principles of law relating to adverse possession and permissive possession as embodied in Articles 64 and 65 of the Limitation Act 1963, once possession becomes adverse to the true owner and is open continuous and uninterrupted for the statutory period of 12 years the possessor acquires prescriptive title which cannot be defeated by a mere claim of initial permissive possession unless the permissive character is proved to have continued throughout the period and a plea of estoppel arising from a party’s own admission in a notice such as Ex.A13 operates against that party in civil proceedings though it cannot override a pure question of law, yet when the admission recognises long-standing possession it strengthens the claim of adverse possession and no estoppel against statute arises when the court is merely giving effect to proved facts of possession rather than altering statutory succession rules. The trial court correctly appreciated that the evidence of long possession by the defendants through tax receipts, electricity bills, voters lists and revision register extracts coupled with the plaintiffs’ own admission in
Ex.A13 that the 1st defendant is in possession and enjoyment of her half-share and the demand for partition only demonstrates that the possession had long since ceased to be permissive and had become hostile and adverse for well over the statutory period thereby perfecting title in the defendants and rendering the suit liable to be dismissed on the ground of adverse possession even though the initial entry may have been permissive the character changed and ripened into adverse possession which the plaintiffs failed to rebut by any cogent evidence of continued permission or acknowledgement of title within the limitation period.
39.In the result on this point for consideration the trial court judgment does not call for any interference or reversal and is hereby upheld in its entirety inasmuch as the appellants have failed to demonstrate any perversity or illegality in the finding that the defendants’ occupation is not based on permissive possession granted by the plaintiffs, but instead the defendants have perfected their title through adverse possession over the statutory period with the suit being effectively barred by limitation in respect of the claims made and the admission in Ex.A13 operating as estoppel against the plaintiffs’ subsequent denial of the defendants’ rights thereby fully justifying the dismissal of the suit.
40.In the result, and in view of the findings of the Court on point numbers 1 to 4, the appeal suit is dismissed with costs confirming the decree and judgment dated 10-09-2009 in O.S.No. 171 of 1997 on the file of the learned Junior Civil Judge’s Court, Vayalpad.
Dictated to the Stenographer directly typed by her in computer, corrected
and pronounced by me in open court, this the 08 th day of May, 2026.
Sd/- A. Mahesh
XI Additional District Judge,
Piler.