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Shakur Vs. Husaini Bibi and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All447; 71Ind.Cas.653
AppellantShakur
RespondentHusaini Bibi and anr.
Cases ReferredAhmad Raza Khan v. Ram Lal
Excerpt:
adverse possession - brother in possession on behalf of himself and sister--gift by brother without knowledge of sister, effect of--registration--notice. - .....but the other was just before it, and it is this gift which is specially pleaded as making the possession adverse. the learned judge of the court below has found that there is no proof that the plaintiffs had any knowledge of this gift and he declined to regard registration of the gift as constituting notice in view of the ruling of the privy council in tilakdhari lal v. khedan lal 57 ind. cas. 465 : 48 c. 1 : 39 m.l.j. 243 : (1920) m.w.n. 591 : 2 u.p.l.r. (p.c.) 139 : 22 bom. l.r. 1319 : 18 a.l.j. 1074 : 25 c.w.n. 49 : 28 m.l.t. 224 : 47 i.a. 239 : 32 c.l.j. 479 : 13 l.w. 161 : 2 p.l.t. 101 (p.c.). in this case there was nothing to put the plaintiffs on enquiry or to cause them to search the register. there is a very recent ruling of the bombay high court, chandbhai mahamadbhai v......
Judgment:

Daniels, J.

1. The only question in this appeal is one of adverse possession. The plaintiffs are two sisters. The original defendant was their brother. He has died and his sons, Chhedi and Shakur, have been substituted in his place. The plaintiffs claimed their share in three houses which originally belonged to the father of the parties. The suit is governed by Article 144 of the Limitation Act. It is admitted that the plaintiffs have never been in actual possession of the house, but the Courts below have accepted the principle that the possession of the brother was on behalf of himself and his sisters and, therefore, was not adverse. This principle is not disputed by the defendants-appellants. They claim that the case is taken out of the principle by virtue of the fact that the brother, Karim Bakhsh, executed two deeds of gift in favour of his sons in the year 1908. One of these was just within the twelve years' period of limitation, but the other was just before it, and it is this gift which is specially pleaded as making the possession adverse. The learned Judge of the Court below has found that there is no proof that the plaintiffs had any knowledge of this gift and he declined to regard registration of the gift as constituting notice in view of the ruling of the Privy Council in Tilakdhari Lal v. Khedan Lal 57 Ind. Cas. 465 : 48 C. 1 : 39 M.L.J. 243 : (1920) M.W.N. 591 : 2 U.P.L.R. (P.C.) 139 : 22 Bom. L.R. 1319 : 18 A.L.J. 1074 : 25 C.W.N. 49 : 28 M.L.T. 224 : 47 I.A. 239 : 32 C.L.J. 479 : 13 L.W. 161 : 2 P.L.T. 101 (P.C.). In this case there was nothing to put the plaintiffs on enquiry or to cause them to search the register. There is a very recent ruling of the Bombay High Court, Chandbhai Mahamadbhai v. Hasanbhai Rahimtula 64 Ind. Cas. 205 : 46 B. 213 : 23 Bom. L.R. 1033 : (1922) A.I.R. (B.) 150, that sole possession by one of two or more joint Owners is not adverse to the others until the joint owner has done some act to the knowledge of the others which amounts to a denial of the latter's right. The rulings of this Court are to the same effect e.g., Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 : 13 A.L.J. 204. I come to this decision with some reluctance, because where parties have not put forward a claim to their legal share for a period of some thirty years, as has happened in this case, it very often, if not usually, is the fact that they have all along intended to allow the brother to take the whole, but on the authorities the decision of the learned District Judge is the only possible decision on the fact found by him. I, therefore, dismiss the appeal with costs including in this Court-fees on the higher scale.


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