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Patna High Court
Rahia @ Rahia Bibi vs Nasar Ahmad on 23 April, 2010
Author: S.Nayer Hussain
           APPEAL FROM APPELLAT DECREE NO. 193 OF 1988

                                     --------

Against the judgment and decree dated 19.03.2988 passed by Shri Laxuman Oraon, 5th Additional District Judge, Rohtas at Sasaram in Title Appeal No.22 of 1983, setting aside the judgment and decree dated 21.3.1983 passed by Shri S. N. Choudhary, 3rd Additional Munsif, Sasaram in Title Suit No.122 of 1980.

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1. Rabia @ Rahia Bibi, wife of Mansoor@ Maryur Alam

2. Julekha @ Shulekha Bibi, wife of Md. Jaheer Both residents of Mohalla Chaukhandi Sasaram, P.S. Sasaram, District Rohtas ....Plaintiffs-Respondents-Appellants.

Versus

1. Nesar Ahmad

2. Mahboob Ahmad sons of late Abdul Karim

3. Sahbuddin

4. Saifun Bibi, daughter of late Abdul Karim

5. Munni daughter of late Abdul Karim

6. Heyatan Bibi, widow of late Abdul Karim

7. Hasina Bibi wife of Nisar Ahmad All residents of Mohalla Chaukhandi Sasaram, P.S. Sasaram, District Rohtas .... Defendants-Appellants-Respondents Ist set.

       8. Md. Ali son of Banarsi Kunjra
     9(a). Md. Zahoor        sons of Urra Bibi @ Ulera Bibi
    9(b). Md. Manzoor
    9(c). Mahrun daughter of Urra Bibi @ Ulera Bibi

(9)(c)(i). Noor Mohammad, son-in-law of Urra Bibi alias Ulera Bibi 9(c)(ii). Faiz, grand son-in-law of Urra Bibi alias Ulera Bibi.

Nos. 8-9 residents of Mohalla Chaukhandi Sasaram, P.S. Sasaram, District Rohtas ... Defendants-Respondents-Respondents 2nd set . ----------

           For the appellants :               Mr. Ataul Haque, Advocate

     .     For respondents no. 1 to 7 :         M/s Dhrub Narayan, Sr. Advocate,
                                                    Jitendra Prasad Singh, Abhishek
                                                    & Prabhat Kumar Dipak,
                                                     Advocates
                                                     .
           For other respondents :                     None.
                                                 2




                                         PRESENT

                             HON'BLE MR. JUSTICE S. N. HUSSAIN

                                             ----------

S. N. Hussain, J.            This second appeal has been filed by the plaintiffs-respondents-

appellants challenging the judgment and decree of the court of appeal below, by which the judgment and decree of the trial court was reversed .

2. This matter arises out of Title Suit No.122 of 1980, which was filed by the appellants with respect to municipal plot no.1100, holding no. 206, Ward no. 2 of Sasaram Municipality containing kutcha tiled house as well as plot no.1103 against the defendants-respondents seeking the following reliefs :-

(a) Declaration of title of the plaintiff and recovery possession from the defendants regarding plot no.1100 (detailed in Schedule-B of the plaint).
(b) Direction to defendants no. 1 to 10 to deliver the possession of plot no.1100 to the plaintiffs.
(c) A decree of mesne profit in favour of the plaintiffs.
(d) Direction to defendants no.1 to 10 not to obstruct the plaintiffs' right of use of latrine over plot no.1103 (detailed in Schedule `A' of the plaint ).
(e) A decree of cost of suit in favour of the plaintiffs.
(f) Any other relief to which the plaintiffs are deemed entitled to.

3. The claim of the plaintiffs was that Sheikh Pir Bux had four sons, namely, Sheikh Abdul Rahman, Sheikh Abdul Karim, Sheikh Banarsi and Sheikh Hanif, out of whom Sheikh Hanif died issueless. Sheikh Abdul Rahman and his wife Bibi Zainab had a son Noor Mohammad and two daughters Rabia Bibi and Zubaida Bibi, out of whom Noor Mohammad died ummarried in the year 1951, whereas, Rabia Bibi was plaintiff no.1 and Zubaida Bibi's (deceased) daughter, namely, Zulekha Bibi was plaintiff no.2. 3 Heirs of Sheikh Abdul Karim were defendants no.1 to 6, whereas, heirs of Sheikh Banarsi are defendants no. 7 to 9, whereas, defendant no.10 was wife of defendant no.1 Nesar Ahmad.

4. It was also claimed by the plaintiffs that by registered sale-deed dated 15.02.1938 (Ext. 7), Abdul Karim transferred his 1/4th share in plot no. 1103 in favour of Abdul Rahman, who was duly mutated thereafter. It was further claimed that in the year 1945 Abdul Karim made oral gift of plot no.1100 to Noor Mohammad son of Abdul Rahman, who came and remained in possession till his death in 1951, whereafter, entire property of the said Abdul Rahman and Noor Mohammad devolved upon the plaintiffs, who were their heirs. It was also claimed that the defendants forcibly entered in the suit house over plot no. 1100 on 22.04.1980, whereafter, the suit was filed. Hence it is claimed that the plaintiffs have right, title and interest in the entire plot no.1100 which remained in their possession till the year 1980, whereas they have half share in plot no.1103, which remained in their possession till the year 1963.

5. On the other hand, the defendants contesting the claim of the plaintiffs asserted that the dates of death of Abdul Rahman and his son Noor Mohammad given by the plaintiffs were absolutely wrong as Noor Mohammad died during life time of his father. It was also averred that Abdul Karim had a wife and several children and hence there was no occasion for him to transfer the suit land nor did he ever execute any sale-deed in favour of Abdul Rahman nor did he ever make any oral gift in favour of Noor Mohammad, rather Abdul Karim executed and got registered a deed of Baimokassa dated 29.06.1963 in 4 favour of his wife Bibi Heyatan(defendant no.6)in lieu of Dain Mohar with respect to portion of plots no.1100 and 1103, whereafter the transferee Bibi Heyatan came in possession of the suit land and got her name mutated. It is also claimed that the defendants are coming in possession of the suit land since the life time of Abdul Karim and they had acquired title by adverse possession also.

6. Considering the aforesaid pleadings of the parties as well as the issues proposed by them, the trial court framed following issues:-

(i) Is the suit as framed is maintainable ?
(ii) Whether the plaintiffs have cause of action to sue ?
(iii) Is the suit barred by law of limitation, waiver, estoppel and acquiescence?
(iv) Whether the plaintiffs had right, title and interest in plot no.1100 containing house ?
(v) Whether the defendants forcibly entered in the suit house over plot no. 1100 on 22.04.1980?
(vi) Whether Abdul Karim sold by registered sale-deed dated 15.02.1938 his share in plot no.1103 in favour of Abdul Rahman, father of plaintiff no.1?
(vii) Whether Abdul Karim made oral gift of his share in plot no.1100 to Noor Mohammad in 1945, Noor Mohammad in turn to his mother Zainab Bibi and finally Zainab Bibi to her daughter and grand daughter, namely, the plaintiffs?
(viii) Whether the plaintiffs are entitled to a decree as claimed for?
(ix) Whether the plaintiffs are entitled to get a decree of mesne profits ?
(x) To what other relief the plaintiffs are entitled ?

7. On the aforesaid issues, evidence were led and arguments were made by both the parties, whereafter, the Additional Munsif-III, Sasaram decreed Title Suit No. 122 of 1980 on contest by his judgment and decree 5 dated 21.03.1983 after arriving at the following findings:-

(a) Dispute between the parties is only with respect to plot nos. 1100 and 1103, whereas, the remaining facts are admitted.
(b) Plaintiffs have been able to prove that Abdul Karim sold his 1/4th share of plot no.1103 to Abdul Rahman in 1938.
(c)After the said purchase Abdul Rahman and heirs remained in possession having valid title and possession.
(d) From the evidence on record, it is proved that the plaintiffs claim of death of Abdul Rahman and Noor Mohammad in 1939 and 1951 is correct.
(e) Plaintiffs have right, title and interest in plot no.1100 and also have half share in plot no. 1103.
(f) Defendants have no right, title and interest in the suit house.
(g) Plaintiffs were in possession of the suit plots since 1938 and 1945 till 1963.
(h) Plaintiffs are entitled to recovery of possession of plot no.1100 from the defendants and to use the way and latrine in plot no.1103, in which the plaintiffs have half share.
(i) Plaintiffs are entitled to recover mesne profits.

8. Against the aforesaid judgments and decree of the trial court, defendants no.1 to 7 filed Title Appeal No. 22 of 1983 and after hearing the parties, the court of appeal below found that issues no. (iv), (vi) & (vii) of the trial court were relevant points to be considered and decided in the said title appeal.

9. On the aforesaid formulated points, both the parties were heard, whereafter 5th Additional District Judge, Rohtas allowed the title appeal in part with respect to plot no.1100 on contest by his judgment and decree dated 19.03.1988 setting aside the trial court's judgment and decree and dismissing the claim and suit of the plaintiffs with respect thereto after arriving at the following findings :-

6

(a) It is apparent from the pleadings and evidence of the parties that Abdul Karim sold his 1/4th share of plot no.1103, which is a common passage of all the sons of Pir Bux and hence no one can be objected or interfered with in using plot no.1103 as common passage and entrance of latrine.
(b) Trial court wrongly held that the plaintiffs acquired title by adverse possession as one co-sharer cannot claim adverse possession over the share of other co-sharer.
(c) It is also proved by evidence that Abdul Karim lived in the house over plot no.1100 and after his death his heirs are residing therein. Reference in this regard is made to a decision of this Court in case of Maqbool Alam Khan vs. Most. Khodaija & Ors., reported in 1966 B.L.J.R. 566.
(d) Trial court wrongly upheld the claim of oral gift by Abdul Karim in favour of Noor Mohammad only because of the entries in municipal record although there was no valid material to show that title was transferred.
(e) Trial court ignored the registered deed of Baimokassa (Ext.B) of 1963 executed by Abdul Karim in favour of his wife Heyatan (defendant no.6).
(f) The evidence proved that Abdul Karim never made any declaration of gift nor parted with plot no.1100.
(g) Plaintiffs have got no right, title or interest over plot no.1100 on the basis of the alleged oral gift made by Abdul Karim in favour of Noor Mohammad.
(h) Plaintiffs cannot be restrained from using common land of plot no.1103, which is in possession of all the heirs of Pir Bux.

10. Against the aforesaid judgment and decree of the lower appellate court, the plaintiffs filed the instant second appeal, which was admitted for hearing on 03.09.1990 after formulating the following substantial questions of law :-

(i) Whether lower appellate could make out a third case with respect to plot no.1103 that it is a Rasta when it is admitted case of the parties that there is a house standing over the said plot ?
(ii) Whether after partition, one branch of family can claim the right by adverse possession over the property of the other branch ?
(iii) Whether the lower appellate court was justified in not considering 7 the documents filed by the parties in coming to the conclusion and in reversing the judgment of the trial court, which was based on the consideration of those documents and that also without assigning any reason?

11. Furthermore, when the case was taken up for final hearing, learned counsel for the appellants filed an application bearing I.A. No. 2356 of 2010 on 11.03.2010 proposing another additional substantial question of law for consideration in the instant second appeal, which is as follows :-

(iv) Whether lower appellate court was justified in reversing the findings of the trial court regarding plot no.1100 without any cogent reason although the trial court held right, title and interest in favour of the plaintiffs on the basis of documentary as well as oral evidence?

12. On the basis of the aforesaid substantial questions of law, Mr. Ataul Haque, learned counsel appearing for the appellants vehemently challenged the impugned judgment and decree of the court of appeal below asserting that the judgment and decree of the trial was fit to be affirmed, but it was wrongly reversed by the court of appeal below as the appellants, who were plaintiffs in the trial court, were fully entitled to the reliefs claimed by them in the suit.

13. Learned counsel for the appellants further submitted that in the plaint plot no.1103 (Schedule `A') was described as Kutcha tiled house and latrine, measuring 9 karis, which was admitted by the defendants but the court of appeal below has made out a third case that the said plot was a rasta, which was not the case of any of the parties nor was proved by any material whatsoever. It was further asserted by learned counsel for the appellants that lower appellate court wrongly rejected the plaintiffs' case of adverse possession on the assumption that the possession of one co-sharer would be possession of the other co-sharers, failing to appreciate that the said 8 presumption only exists when the property is not partitioned. But here in the instant case, there was already partition in the family, specially when the plaintiffs were living in the house over plot no.1100 since 1945 without any objection, resistance and interference by any party till 22.04.1980 when the plaintiffs were ousted, as a result of which the suit was filed on 02.12.1980. Thus, he claimed that the plaintiffs had acquired title over plot no.1100 by adverse possession before the year 1980 and hence they were justified in seeking the relief of recovery of possession. Learned counsel for the appellants also argued that the judgment and decree of lower appellate court was vitiated due to non-consideration of documents filed by the parties while reversing the judgment of the trial court, which was based on consideration of the said documents and further no reason was assigned in its judgment by the court of appeal below for reversing the judgment and decree of the trial court.

14. Learned counsel for the appellants extensively argued that the court of appeal below reversed the judgment and decree of the trial court and rejected the plaintiffs' claim of oral gift by Abdul Karim in favour of Noor Mohammad with respect to plot no.1100 in the year 1945, merely on the basis of frivolous assumption as well as without appreciating the materials on record, which sufficiently proved the said gift. It is also stated that the court of appeal below merely presumed that as the said Abdul Karim had children, he would not gift his property, namely, plot no.1100 to his nephew Noor Mohammad by oral gift of 1945, failing to appreciate that at that time Abdul Karim was issueless and his first wife had died and in that circumstance by the said oral gift, he orally gifted plot no.1100 to his nephew Noor Mohammad, who was duly mutated in the life time of the donor, which was never objected to by any 9 one including the donor. He also averred that P.W.3 in paragraph no.3, P.W.9 in paragraph no.4, P.W.17 in paragraph no.14 and P.W. 19(ii) in paragraph no.1, fully supported the aforesaid oral gift by Abdul Karim as well as the mutation of name of Noor Mohammad on this basis. He also submitted that apart from the said statements of the aforesaid witnesses, Exts. 6 series and Exts. 8 series are the assessment lists and assessment register of plot no.1100 in the name of Noor Mohammad, whereafter, the name of his mother Bibi Zainab was recorded, who had inherited after his death and after her death, names of his sisters were recorded. It is also argued by learned counsel for the appellants that the aforesaid evidence as well as other evidence were fully considered by the trial court and only on their basis the trial court had held that the aforesaid oral gift of 1945 made by Abdul Karim in favour of Noor Mohammad with respect to plot no.1100 was legal and justified and created right, title and interest in the donee, who was also put in possession thereafter. But the lower appellate court failed to appreciate the said aspect of the matter and wrongly decided the claim regarding plot no.1100.

15. On the other hand, Mr. Dhrub Narayan, the learned senior counsel for respondents no.1 to 7 argued that the plaintiffs' claim was based only on oral gift of 1945, said to have been made by Abdul Karim in favour of his nephew Noor Mohammad with respect to plot no.1100, but the said oral gift was not sufficiently proved in terms of the requirements under the Mohemmedan Law, which was completely ignored by the trial court and hence the court of appeal below was justified in reversing the judgment and decree of the trial court and in passing its judgment and decree in accordance with law. It was also submitted that since no earlier partition between the family was 10 proved, the property remained joint, all the members having specified shares as co-sharers. There was no question of any adverse possession in favour of any party. It was also averred by learned counsel for the said respondents that the court of appeal below has considered all the relevant pleadings and evidence of the parties and only thereafter it had arrived at specific findings on the relevant issues and hence there is no illegality in the impugned judgment and decree of the court of appeal below.

16. The genealogy of the family is not disputed but only the years of death of Abdul Rahman and Noor Mohammad were in dispute, but both the learned courts below affirmed the plaintiffs' version holding that Abdul Rahman and Noor Mohammad had died in the years 1939 and 1951, respectively, which has not been challenged. Admitted genealogy is as follows:-

17. It is quite apparent from the pleadings of the parties that the dispute was only with respect to plot nos. 1100 and 1103. So far plot no.1103 is concerned, the plaintiffs did not seek declaration of their title in the said plot, rather they only sought a direction against the defendants not to obstruct the 11 plaintiffs' right to use latrine over the said plot. Admittedly, the said plot belonged to Sheikh Pir Bux, who left behind four sons each inheriting 1/4th share. Hence, Sheikh Abdul Rahim and Sheikh Abdul Karim each had 1/4th share in the same and according to the plaintiffs' claim, Abdul Karim sold his 1/4th share in plot no.1103 to his brother Sheikh Abdul Rahim vide registered sale-deed dated 15.02.1938 (Ext.7) and hence Sheikh Abdul Rahim got half share in plot no.1103 with respect to which his name was mutated also and after his death the same had devolved upon his heirs, namely the plaintiffs.

18. After considering the relevant pleadings and evidence of the parties with respect to the said plot no.1103, the trial court decreed the said claim of the plaintiffs declaring that they had half share in plot no. 1103. The said finding of the trial was affirmed by the lower appellate court vide the impugned judgment and decree, but against the said concurrent findings of the courts below, the defendants have neither filed any second appeal nor did they file any cross objection in the instant second appeal. This Court also does not find any illegality in the said concurrent findings of the courts below and hence the said findings with respect to Plot no. 1103 have attained finality, which need not be interfered.

19. In the said circumstances, the dispute remains only with respect to plot no. 1100, measuring 8 links, which, admittedly, belonged to Sheikh Abdul Karim. The claim of the plaintiffs was that the said plot was orally gifted by Sheikh Abdul Karim to his nephew Noor Mohammad in the year 1945 as at that time first wife of Sheikh Abdul Karim had died and he was issueless. It was further claimed that Noor Mohammad executed a Will dated 30.09.1950 (Ext. 4) in favour of his mother Bibi Zainab with respect to plot no. 12 1100 along with other lands, whereafter, the said Bibi Zainab executed a registered deed of gift dated 08.02.1979 (Ext.2/A) in favour of her daughter Rabia Bibi (plaintiff no.1)with respect to plot no.1100. It is also claimed that on the basis of the aforesaid transfers, the names of the persons concerned lastly Rabia Bibi were mutated, which is apparent from Exts.6 series. Thus, it is claimed that the plaintiffs had right, title and possession over plot no. 1100 but they were forcibly ousted by the defendants no. 22.04.1980 and hence they were also entitled to recovery of possession of the said plot.

20. On the other hand, the defendants completely denied any oral gift of plot no. 1100 by Abdul Karim in favour of Noor Mohammad and stated that there was no occasion for Abdul Karim to give the said property to his nephew as he had his own family to maintain and the said plot no.1100 throughout remained in possession of Sheikh Abdul Karim, who transferred the same to his wife Heyatan (defendant no.6) by registered deed of Baimokassa dated 01.07.1963 (Ext.B) with respect to plot no.1100 along with other plots, whereafter, the name of transferee was recorded, which is clear from the orders in mutation case etc., namely Exts. F, H, I & J, along with municipal receipts (Exts. `A' series), to which no objection was ever raised by the plaintiffs for more than 17 years till the suit was filed in the year 1980. It was also claimed that the plaintiffs' allegation of their dispossession by the defendants on 22.04.1980 is also falsified by Ext. `K', which is the order of the trial court acquitting the defendants in the criminal case filed by the plaintiffs against them for forceful dispossession. Hence, it was claimed that the defendants and their ancestors were in continuous possession of plot no.1100 since the time of Abdul Karim on the basis of their absolute right and title over the said plot. 13

21. So far the first question of law raised by the appellants is concerned, it is with respect to plot no.1103, which is detailed Schedule `A' of the plaint, which shows that it contained Kothari, latrine and Angan and the pleadings and evidence of the parties as well the concurrent findings of facts of both the courts below also clearly show that Angan was commonly used as Rasta and the latrine was also commonly used by all the co-sharers. This Court does not find any merit in the said question raised by the plaintiffs specially when both the courts below have affirmed the plaintiffs' claim of half share in plot no.1103 as discussed above in paragraphs no. 17 and 18 of this judgment.

22. So far the second question of law raised by the appellants is concerned, it is quite apparent that the question of adverse possession was never raised by them in the trial court nor any issue with respect thereto was framed by any of the courts below nor even the ingredients to prove adverse possession existed in the pleadings and evidence of the plaintiffs and hence a mere passing reference of the trial court with respect to adverse possession in paragraph no.24 of its judgment was quite uncalled for and baseless and hence the court of appeal below was quite justified in setting aside the said finding of the trial court with regard to adverse possession of the plaintiffs.

23. So far the third question of law raised by the appellants is concerned, it is quite apparent from a plain reading of the judgment of lower appellate court that all the relevant documentary evidence with respect to plot no.1100 produced by the plaintiffs and relied upon by the trial court, were fully considered by the court of appeal below in paragraphs 12 and 13 of its judgment, in which the documents produced by the defendants were also considered. Furthermore, no fault could be shown in the consideration of the 14 said documents by the court of appeal below. In the said circumstances, this question raised by the appellants also fails.

24. So far the fourth question of law raised by the appellants is concerned, it is with respect to the respective claim of the parties regarding plot no. 1100. It is not in dispute that the said plot originally belonged to Sheikh Abdul Karim, but the plaintiffs claimed that the said Abdul Karim orally gifted the said plot to his nephew Noor Mohammad in the year 1945, whereas the defendants denied any such gift and claimed that the said plot throughout remained with its original owner Sheikh Abdul Karim till 01.07.1963 when he transferred the same by a registered deed of Baimokassa (Est. B) in favour of his wife Bibi Heyatan, who was duly mutated and had been paying rent since then, which is fully proved by Exts. A series, Exts. F, H, I & J.

25. The claim of the appellants is that the presumption of lower appellate court was that when Abdul Karim himself had children, there was no occasion for him to gift his property including house to his nephew Noor Mohammad by oral gift of 1945, failing to appreciate that during the said period Abdul Karim was issueless and his first wife had died and hence he gifted the said plot to his nephew Noor Mohammad, which was duly mutated in the life time of the donor, who never objected. It is further claimed that although there is no documentary proof of the said oral gift, but the same was fully proved by the plaintiffs' witnesses no.3,9,17 and 19(ii) and also by Ext. 4, the Will of Noor Mohammad in favour of Bibi Zainab dated 30.09.1950 as well as Exts. 2A, registered deed of gift dated 08.02.1979 executed by Bibi Zainab in favour of the plaintiffs as well as the entries in the assessment list (Exts. 6 15 series) and the entries in the assessment register (Ext. 8 series), which were fully considered by the trial court, but was wrongly decided by the court of appeal below. Appellants' counsel also relied upon Ext.11, namely the certified copy of order sheet of Municipal Case No. 121 of 1979-80 filed by the plaintiffs against the defendants.

26. In the said circumstances, the main point for consideration is the existence and validity of the alleged oral gift made by Abdul Karim in favour of Noor Mohammad in the year 1945 as claimed by the plaintiffs and for that essential requirements of a valid gift as enshrined in Article149 of Mulla's Mohammedan Law (19th Edition) had to be considered and which have been considered by the court of appeal below, namely, (i)declaration of gift by the donor, (ii) acceptance of gift by the donee and (iii)delivery of possession of the property by the donor to the donee. According to the said requirement, a gift of any movable property, of which the donor is in actual possession, is not complete unless the possession of the same is delivered to the donee. But in the instant case, the exact date of the said gift is not known nor the possession was shown to have been delivered to the donee by the donor as from the evidence it stands undisputed that even after the said gift, the donor Abdul Karim did not part with the possession of the said premises and lived in the suit house and died therein, whereafter, his wife and children remained in occupation of the said house and hence it is quite apparent that the alleged donor never divested himself completely of all ownership and dominion over the subject of the gift as required under Articles 148 and 152(1) of the said Law. Furthermore, there is no evidence at all to show that Sheikh Abdul Karim had done any overt act regarding his declaration of oral gift or delivery of possession of the premises 16 to Noor Mohammad as required under Article 152(3) of the said Law. Hence, the appellants had miserably failed to prove the alleged oral gift and its three essential requirements in law.

27. Furthermore it has also been found by the court below from the evidence on record that Abdul Karim had gone to Kolkata and remained there for four years and in his absence his properties were recorded in the municipal registers in the name of Noor Mohammad only because at that time Noor Mohammad was present and was looking after the property and when the said Sheikh Abdul Karim returned from Kolkata, he lived in the said house with his family. Hence in the said circumstances neither there was any valid gift nor there was any adverse possession in favour of the plaintiffs or their predecessor in interest and any deed executed by them on the basis of the alleged oral gift cannot legally be valid and proper.

28. On the other hand, the defendants were not only the heirs of the said original owner Sheikh Abdul Karim, but they were also claiming on the basis of a registered deed of Baimokassa dated 01.07.1963 (Ext.B), which was executed by Sheikh Abdul Karim in favour of his wife Bibi Heyatan (mother of the defendants ), which was supported by the orders in mutation case vide Exts. F, H, I & J as well as municipal receipts vide Exts. A series. The defendants had also been able to prove that they have been in possession of the suit premises since the time of Abdul Karim and also since the aforesaid deed of Baimokassa dated 01.07.1963, whereas the plaintiffs have miserably failed to show that they were ever in exclusive possession of the suit premises bearing plot no.1100 and were ousted therefrom on 22.04.1980.

29. In the said circumstances, although learned counsel for the 17 appellants very ably and enthusiastically raised extensive points in support of the appellants, but this Court does not find any illegality in the impugned judgments and decree of the court of appeal below nor the appellants have been able to substantiate their aforesaid questions either by law or by evidence. Accordingly, the instant second appeal is dismissed, but in the facts of the case, there will be no order as to costs.

Patna High Court                                  ( S. N. Hussain, J. )
April 23rd , 2010
A.F.R.
MPS/