1. The second plaintiff is the appellant in this appeal.
2. The present suit was brought by one Ramjan All and the present appellant, Ishak Ali, claiming one-third share in the property left by one Shahbax Khan. The genealogy in so far as we are concerned is as follows :
| | | | | | |
Nage Khan Jainuddin Khan Salabat Khan Mohiuddin Khan Jahuranbi Sahuranbi Mulayambi
| | | |
Yakub Khan Shahbaz Khan Jebanbi Ninibi
| = Unhashi = Abbasali = Md. Abid
Betulbi (Deft. 1) | |
___________________|______ Yakub (Deft. 5)
| | |
Ishaq Ali Ramjanali (?) |
(Pltf.2) (Pltf. 1) |
| | |
Lal Mohammad Ayub Mohammad Safl Mohammad
(Deft. 2) (Deft. 3) (Deft. 4)
3. After the death of Inayat Khan the property was divided equally between his four sons. At that time, it appears that the claim of the daughters of Inayat Khan was overlooked. Later, Salabat Khan died in 1908. The four anna share of Salabat Khan was recorded in the name of Shahbaz Khan alone. The claims of the daughters of Salabat Khan -- Mst. Jebanbi and Mst. Ninibi -- were again overlooked. Shahbaz Khan died on 13-12-1945. His elder brother, Yakub Khan, had predeceased Salabat Khan.
After the death of Shahbaz Khan, a suit was filed by Mst. Betulbi, daughter of Yakub Khan, against the present defendants 2, 3 and 4 claiming a share in the property of Salabat Khan. That suit failed. We are not concerned with the facts of that suit as it was not between the parties, except to show the history of litigation in the case. Before his death, Shahbaz Khan executed a deed of gift on 30-4-1942, by which he gifted his entire property to defendants 2, 3 and 4. It is thus that defendants 2, 3 and 4 came into possession of the original four-anna share of Shabhaz Khan. The present suit was filed by the two plaintiffs, claiming one-third share in the four-anna share inherited by Shahbaz Khan from Salabat Khan and gifted to the answering defendants 2, 3 and 4. In doing so, the two plaintiffs claimed in the right of their mother. Mst. Jebanbi, who according to them, was entitled to one-anna share inherited from Salabat Khan.
4. The Trial Court held that the first plaintiff, Ramjan Ali, was not the son of Jebanbi and was not entitled to succeed or to claim any property in suit. With regard to Ishak Ali, the present appellant, it was held that the claim was time-barred.
5. A few dates may once again be repeated. Salabat Khan died in 1908. Jebanbi died in 1918. Shahbaz Khan gifted the property in 1942 and he died in 1945. The suit was filed on 30-11-1950. There can be no doubt that the suit has been very much delayed. From the death of Salabat Khan, when the title, if any, of Jebanbi came into the picture, there has been a lapse of 42 years. It is contended that the possession of one co-owner enures for the benefit of other co-owners, and between them there can tee no adverse possession, unless there has been a specific ouster.
It is submitted that a plea of ouster and adverse possession was not in terms made by the defendants and the finding given without a specific issue having been framed is not binding. The defendants in this case denied that the two plaintiffs were the sons of Jebanbi at all. They succeeded in so far as one of the plaintiffs (Ramjan Ali) was concerned, but failed with regard to the other. But the course of events in the family speaks volumes and that course of events has been narrated both by the plaintiffs and the defendants.
6. In this family, it appears, the claims of ladies were overlooked. In 1908, when Salabat Khan died, mutation proceedings took place and Shahbaz Khan was recorded not only as the owner of the four-anna share, but also as the Lambardar, to which no claim was raised by Jebanbi or Ninibi against Shahbaz Khan. No doubt, in a Mohammedan family, the sisters live in purdah, and the action of the brothers in getting the property recorded in their own names to the exclusion of the sisters cannot afford a ground for setting up adverse possession until the knowledge of their rights as well as their ouster is brought home to the ladies concerned. This was laid down by Bose, J. in Mohammad Aminuddin v. Mohammad Abdur Rahman, ILR (1942) Nag 608 : (AIR 1941 Nag 343) (A). Jebanbi lived for 10 years after the death of Salabat Khan, but no claim was advanced on her behalf.
However, if we are to exclude that period, it is quite obvious that after her death in 1918, no claim was advanced till 1950 by the present plaintiffs and the present appellant in particular. Thirty-two years later, a claim has been made and adverse possession is resisted on the ground that adverse possession has not been specifically pleaded and it did not commence because there was no ouster.
7. The rule of law is that possession is referable to a lawful title, and between co-owners, possession of one is referable to the title of the other, unless there has been an ouster. But where possession has continued for a considerable period of time exclusively with one co-owner and prima facie to the exclusion of other or others, this principle can hardly be applied. Here the facts are well known. Shahbaz Khan entered into possession Immediately after the death ofSalabat Khan in 1908, and he continued in exclusive possession till 1918, acting as the lambardar and having the property mutated in his own name exclusively.
After the death of Jebanbi, he still continued in possession of the property to the exclusion of the appellant for 32 years. He gifted the property in 1942 and 8 years later, the suit has been brought on the allegation that a share in the property belongs to the plaintiffs. In these circumstances, when the facts are known, the principle that possession is referable to a lawful title can hardly be availed of : See Munnalal v. Mst. Kashibai, ILR (1946) Nag 917 at p. 924: (AIR 1947 PC 15 at pp. 18-19) (B).
8. No doubt, the plea of adverse possession was not made in so many words, but all the facts necessary thereto were pleaded, including the denial of the maternity of Jebanbi in relation to the two plaintiffs. It is manifest that the plaintiffs had full knowledge and notice of the case and, in our opinion, the absence of a plea of issue has hardly affected the merits in this case. The parties went to trial with the full realisation of what the case was and the plaintiffs, who had a burden initially on them, knew full well that they had been kept out of possession for 32 years by Shahbaz Khan and the present defendants.
In these circumstances, it was incumbent upon them to have shown how the suit brought by them was within time. We are not inclined to stress the structure of the pleadings in this case. We rely upon Someshwar v. Tribhawan, AIR 1934 PC 130 (C) and Chandra Kunwar v. Narpat Singh, 34 Ind App 27 (PC) (D). The latter case has been applied by their Lordships of the Supreme Court in Nagubai v. Shama Rao, (S) AIR 1956 SC 593 (E). The plaintiff-appellant does not seem to have had much confidence in the strength of his own case; otherwise ho would not have delayed it for some many years, and an inference can be drawn against him, as was done in Annamalai v. Subramanian, AIR 1929 PC 1 (F).
9. We see no reason to interfere. The appeal fails and is dismissed with costs.