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Hafiz Abdullah Vs. Alli and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All291; 71Ind.Cas.640
AppellantHafiz Abdullah
RespondentAlli and anr.
Excerpt:
adverse possession - joint owners--proof--ouster actual or by conduct--denial or repudiation of title--mixed question of law and fact. - .....rawa and maula bakbsh obtained a decree in 1870, declaring their title to the house in dispute. maula bakhsh did not live in the house after the decree but allowed his two brothers to remain in possession. this they did until the year 1889 when they mortgaged the house to a third party and that third party remained in possession. this mortgage has now been redeemed, and upon this being done, the plaintiffs, who are the representatives of maula bakhsh, brought the present suit for their one-third share of the house. that they had a third share in the house is not disputed but it is urged that their right to the third share was extinguished by lapse of time, by reason of the two brothers having ousted them and been in adverse possession of the house. the mere possession of the house by.....
Judgment:

1. Three brothers Ghazi, Rawa and Maula Bakbsh obtained a decree in 1870, declaring their title to the house in dispute. Maula Bakhsh did not live in the house after the decree but allowed his two brothers to remain in possession. This they did until the year 1889 when they mortgaged the house to a third party and that third party remained in possession. This mortgage has now been redeemed, and upon this being done, the plaintiffs, who are the representatives of Maula Bakhsh, brought the present suit for their one-third share of the house. That they had a third share in the house is not disputed but it is urged that their right to the third share was extinguished by lapse of time, by reason of the two brothers having ousted them and been in adverse possession of the house. The mere possession of the house by the brothers or the possession of a mortgagee from them would not amount to adverse possession, unless there was what may be deemed to be an ouster of the plaintiffs or their predecessor Maula Bakhsh. There might be actual ouster or there might be conduct which would amount to ouster. In the present case what was found was that the two brothers mortgaged the whole house to the mortgagee who remained in possession. From this fact alone it could not be concluded that the plaintiffs or Maula Bakhsh had been ousted from the house. It was not found by the lower Appellate Court that the plaintiffs or Maula Bakhsh had any information as to the nature of the mortgage effected by the brothers of Mauia Bakhsh. If two-thirds only had been mortgaged the mortgagee would have been in possession of the house. The mere fact, therefore, of the mortgagee being in possession was not sufficient to constitute ouster from the property. The question of adverse possession is a mixed question of law and fact. Unless there was some act to the knowledge of the plaintiffs by which their title was denied or repudiated, the mere fact of the plaintiffs not being in actual possession would not amount to ouster such as would extinguish their right. This is the case with the property now in dispute and there is nothing to show that the plaintiffs had knowledge of the mortgage, and there is no finding on the point. The single fact that the brothers of Maula 'Bakhsh remained in possession and that a mortgagee from them was also in possession is not sufficient to constitute ouster and the learned Judge of this Court in so holding was, we think, right. We accordingly dismiss the appeal with costs.


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