Mufti Baha-ud-Din Farooqi, Ag. C.J.
1. The plaintiff sued to recover a house specified in the plaint. The house in dispute has been acquired by defendants 1 to 3 by sale deed dated 5-11-1962 from defendants 4 to 8. The plaintiff's case is that the house has come down into the family of the plaintiff and defendants 4 to 8, from their common ancestor, Rustam Sheikh. He alleged that Rustam Sheikh had died survived by two sons and one daughter, namely Ahmad Sheikh and Ramzan Sheikh & Mst. Zoona Dedi. The plaintiff claims to be the son of Mst. Zoona Dedi, Defendants 4 to 8 are the grandsons of Ahmed Sheikh through his only son, Abdullah Sheikh. The plaintiff asserted that Ramzan Sheikh had died issueless. But at the trial it was found that he was survived by his son. Gh. Qadir Sheikh, who was impleaded as defendant No. 9. The plaintiff claimed 2/5th share on the basis of title: 1/3rd share on the basis of right of prior purchase. The suit was opposed by defendants 1 to 8. They denied that the house had come down into the family from the common ancestor. Their case was that it was the exclusive property of the defendants 4 to 8 to whom it had come down from their grandmother who had constructed the same in the Samvat year 1965 (1896 AD) after obtaining proper permission from the Municipality in the name of her husband, Ahmad Sheikh. Their further case was that Ahmad Sheikh and, after him, his successors in the line below, including defendants 4 to 8, have been in long and continuous possession and enjoyment of the house right from the time it was constructed and, that. the plaintiff had no right or title in the house nor was he ever in possession or enjoyment thereof. The trial court held that the house was the exclusive property of ' the defendants 4 to 8 to whom it had come down from their grand-parents and that the plaintiff had no right, title or interest in it. The court further held that the house had been in a long and continuous possession of defendants 4 to 8 and their father and grandfather namely Abdullah Sheikh and Ahmad Sheikh respectively. The court also held that the plaintiff had no preferential right to purchase the house as he had not proved himself to be the co-sharer. On these findings, the trial court dismissed the suit. On appeal, the learned Addl. District Judge held that the house had come down into the family from their common ancestor and was joint between the plaintiff and defendants 4 to 8 and that the plaintiff was entitled to 1/5th share. He further held that, being a cosharer, the plaintiff was entitled to a right of prior purchase in respect oi other four shares which he could acquire against the proportionate price of Rs. 1600/-. He passed a decree accordingly. Against this decision, the defendants have come up in appeal to this court.
2. At the outset, I must confess that I had a great difficulty in following the judgment of the lower appellate court. By a process of reasoning, which appears to be peculiar, the court has come to the conclusion that the disputed house had come down into the family from the common ancestor and was joint between the plaintiff and defendants 4 to 9 and that a finding to thecontrary of the trial court was erroneous. The trial court considered the evidence and then summed up the position in these words:--
'All the witnesses of the defendants and even of the plaintiff have deposed that this house has been in continued possession of defendants 4 to 8, their father and grandfather. This continued possession and the clear permission from the Municipality in favour of the grandfather of the defendants' party to rebuild the house is sufficient proof that this house has been built by Ahmad Sheik the grandfather of vendees defendants prior to 64 years and since then he and his heirs have been using this house as their property undisturbed. In view of this clear finding I come to this inevitable conclusion that the plaintiff has no share in this house.'
3. The lower appellate court proceeded on the assumption that the property was joint between the parties and argued that, 'the case being as between the co-sharers, it was necessary for the defendants to plead specifically that they were in adverse possession and their continued possession was such that it amounted to the ouster of a cosharer'. On this premises, the court proceeded to examine the various circumstances appearing in the evidence and relied upon by the trial court and negatived them one by one and ultimately concluded that the house was joint between the plaintiff and defendants 4 to 9. The court first dealt with the permission for construction which was obtained by Ahmad Sheikh from the Municipality, Srinagar in the samvat year 1965 for the construction of the house and said that the related application was not shown to have been submitted by Ahmed Sheikh nor a mention, made therein that the site belonged to him and that, in any case, it was not proved that his wife had really rebuilt the house after having obtained the permission. The court proceeded to observe:
'After all Ahmad Sheikh had to show whether he had got the land and who was the owner of the house which he repaired.'
4. The court dealt with the question of possession and argued that, this could not be helpful to the defendants because the continued possession would not amount to ouster and that in anycase, the defendants had not pleaded such ouster.
5. In my opinion, the lower appellate court has not approached the case in its proper perspective. The question that arose was whether the house in dispute was the exclusive property of the defendants 4 to 8 or that it was joint between the plaintiff and defendants 4 to 9. The lower appellate court never cared to deal with this question. On the other hand, it assumed that this was a case in which the property was admitted to be joint and all that was required to be done was to ascertain whether the co-owner in possession had acquired by prescription exclusive title over it. Thus, the very basis on which the judgment proceeds is entirely misconceived. The trial court found, and, it has not been disputed by the lower appellate court, that Ahmad Sheikh and after him, his son, Abdullah Sheikh, and his grandsons, defendants 4 to 8, have been in uninterrupted possession and enjoyment of the house for a long time extending over a period of more than fifty years and, if I may say so, that could be the only proper finding, considering the fact that even the plaintiff's own witnesses Gaffar Mir, Moh'd Sultan, Moh'd Yousuf and Moh'd Sultan have unequivocally stated that the house has been in continuous occupation of Abdullah Sheikh and his mother who have been residing in it as owners since times immemorial. On this premises, there arose a presumption of title in favour of defendants 4 to 8 and under Section 110 of the Evidence Act the burden of proving that they were not the owners lay on the plaintiff who affirmed that they were not the owners. In fact the burden of proving the issue was also specifically placed on the plaintiff. The plaintiff has miserably failed to discharge this burden. The witnesses produced by him, as I have already indicated, have supported the case of the defendants 4 to 8. In fact, his own testimony has gone to support their case. He has stated that for the last 25 years he has never even once asked Abdullah Sheikh to give him his share in the house. This further strengthens the presumption that the house was the exclusive property of the defendants 4 to 8 who are the heirs of Abdullah Sheikh, For, the law is well settled that the strength of presumption arising from possession is materially increased by the length of time of enjoyment and the absence of any demand or disturbance from others who, supposing it to be detrimental to their interest are interested in putting an end to it. The long and continued possession and enjoyment of the house by Ahmed Sheikh and his successors and the absence of any protest or demand by the plaintiff over a long period exceeding more than fifty years was indicative of and entitled the court to presume that the title exclusively belonged to defendants 4 to 8. The burden lay heavily on the plaintiff to prove the contrary. He could not rely upon the weaknesses in the defence. Therefore, even if it were assumed that there was no defence evidence to show that the old house belonged to Ahmed Sheikh or that he or his wife had rebuilt the house or even that he had really moved the application for permission to rebuild the house, although no such proof was needed because the application was more than thirty years old, still the lower appellate court could not justifiably hold that the house was joint between the plaintiff and defendants 4 to 8. The lower appellate court has compeletely misdirected itself and come to a conclusion which is neither sustain-able on facts nor in law. The finding of the trial court that the house in dispute exclusively belonged to defendants 4 to 8 is irreproachable and the lower court has unjustifiably reversed the same. If that be so, the plaintiff's claim based upon title must necessarily fail and. equally so, the claim founded upon the right of prior purchase, linked as it was, with the plea that he was a co-sharer. The trial court was justified in coming to the conclusion that it did and, I think, that its judgment must be restored and that of the lower appellate court set aside.
6. In the result, this appeal succeeds and is allowed, The judgment and the decree passed by the lower appellate court is set aside and that of the trial court is restored. There shall be no order as to costs in this court.