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MohiddIn Valad Kaka Patankar Vs. Ibrahim Alias Kaka Valad MainuddIn Patankar and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1924Bom297; 74Ind.Cas.161
AppellantMohiddIn Valad Kaka Patankar
Respondentibrahim Alias Kaka Valad MainuddIn Patankar and ors.
Excerpt:
adverse possession - khoti khasgi lands--partition, absence of--division among different branches, effect of. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., .....it was held that the branch of the first defendant had acquired title by adverse possession to the suit thikan, and there are passages in the judgment of the district judge which seem to point to his having come to the same conclusion. there are also other passages inconsistent with the finding, as, for instance, where he said that defendant, no. 1's title to hold the suit thikan was adverse as there was no general partition. if it is still possible for the members of jainu's branch to file a suit for partition so as to readjust the division of the khasgi land which had been made many years ago amongst the branches, then it would follow that no member of the branch would acquire title by adverse possession in any of the lands as he would hold his share for reasons of convenience and not.....
Judgment:

1. The suit was filed by the plaintiffs to recover possession of a certain thikan which was khdi Khasgi land in the khotki belonging to the defendants family. The evidence showed that Jainu owned 16 pies share in the Khoti. He had four sons. The first defendant through whom the plaintiffs claim had a 5 1/3 pies share which was represented by certain lands separately owned for many years by Bapu and his father Balu, while the other members of Jainu's branch also held the other khasgi lands belonging to Jainu's share in separate possession. The plaintiffs purchased from the first defendant what rights of possession he had and do not claim possession as absolute owners. True, in the Trial Court it was held that the branch of the first defendant had acquired title by adverse possession to the suit thikan, and there are passages in the judgment of the District Judge which seem to point to his having come to the same conclusion. There are also other passages inconsistent with the finding, as, for instance, where he said that defendant, No. 1'S title to hold the suit thikan was adverse as there was no general partition. If it is still possible for the members of Jainu's branch to file a suit for partition so as to readjust the division of the Khasgi land which had been made many years ago amongst the branches, then it would follow that no member of the branch would acquire title by adverse possession in any of the lands as he would hold his share for reasons of convenience and not for the purpose of partition in the strict sense of the word. We see no reason why the first defendant should not pass on a possessory right to the plaintiffs or why the 5th defendant should object to such possession. The 15th defendant has no objection, and the other defendants except No. 5 have not appealed. We make it clear that defendant No. 1 had a possessory right in the suit thikan although, the right to partition still remained with the members of the Jainu's branch, so that the partition of the khasgi lauds was not final. The plaintiffs have succeeded to the rights of the first defendant in the suit thikan, and, presumably, if they do not do anything more then they would acquire no further rights. But in they assert absolute ownership openly in the suit thikan then the other members of Jainu's branch would have to take steps to prevent them acquiring absolute rights by prescription. We, think the plaintiffs were entitled to the decree which was given them, and we make the real position clear. The appeal will be dismissed with costs.


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