JUDGMENT B.K. Rathi, J.
1. This is the second appeal filed against the judgment and decree dated 11.9.1969 passed by Sri C. L. Anand, Civil Judge, Bijnor in Civil Appeal No. 124 of 1968. The facts of the case are very simple and the following pedigree will help in considering the facts :
Hussain Bux __________________________________|________________________________ | | Mohd. Bux Khan (son) Khuda Bux Khan | | Abdul Gani (son) | ______|__________________________________ | | | | | | Jalilur Abdul Abdul Ghafoorulnisa Abdulla Khan (son) Rehman Wahid Hamid (Daughter) | Khan (son) (son) (son) Nasir Hussain (son)
2. The dispute is regarding ahata situated in plot No. 706 of the town Sahaspur, Pargana Seohara, district Bijnor. The plaintiff-appellant filed a suit for injunction to restrain the defendant-respondents 1 to 4 from interfering in his possession over the disputed ahata. Later on he converted the relief and claimed recovery of possession. His case is that this ahata was acquired by Mohd. Bux and after his death Abdul Gani became the owner and thereafter, the plaintiff and defendants-respondents Nos. 5 and 6 became the owner being sons of Abdul Gani.
3. The suit was contested by the defendants-respondents Nos. 1 to 4. Their case is that Hussain Bux was the owner of the ahata. After his death his two sons, namely, Mohd. Bux Khan and Khuda Bux Khan became the owners. Thereafter, their sons Abdul Gani and Abdulla Khan became the owners. The defendant-respondent No. 1 had purchased the share of Abdulla Khan by registered sale deed dated 11.11.1925 and obtained possession on that day. The defendants-respondents 2 to 4 are sons of defendant No. 1. That since the date of purchase the respondent Nos. 2 to 4 are in possession of the same. That, therefore, the respondent Nos. 2 to 4 are the owners of the same. That the suit is barred by time.
4. The trial court framed the necessary issues and decreed the suit for recovery of possession of the disputed ahata. Aggrieved by it, the defendants-respondent Nos. 2 to 4 preferred Civil Appeal No. 124 of 1968, which was allowed by the impugned judgment dated 11.9.1969. Aggrieved by it, the present second appeal has been preferred.
5. This second appeal was admitted by order dated 13.1.1970. However, no substantial question of law was framed as it was not necessary at that time.
6. I have heard Sri V. Singh, learned counsel for the appellant. None appeared for the respondents and, therefore, the respondents could not be heard, I have gone through the entire record of the case.
7. The appellant filed the khasra of tenth settlement, in which the disputed plot No. 706 is recorded as "gohra" of Mohd. Bux Khan. Me has also filed khasra of 1367 fasli, in which also the name of Mohd. Bux Khan has been recorded over plot No. 706. As against this, there is no document on the record which may show that Hussain Bux or Khuda Bux were ever recorded over the plot in dispute. Therefore, it cannot be accepted that Hussain Bux or Khuda Bux Khan were ever owners of the said plot.
8. The most important document is the deed of relinquishment executed by Smt. Ghafoorul Nisa in favour of her brothers, plaintiff and respondents Nos. 5 and 6 which is dated 6.6.1938. In this deed, it is clearly mentioned that she along with her brothers is the owner of the said ahata in plot No. 706 and she relinquishes her rights in favour of her brothers. It is very important to mention that Manzoor Ahmad Khan, defendant-respondent No. 1, father of defendant-respondent Nos. 2 to 4 is attesting witness of this deed. This deed has been rejected by the first appellate court on a very strange ground. He has observed : "However, Sri Manzoor Ahmad Khan, D.W. 1 was an attesting witness. Attesting witness cannot be ascribed with the knowledge about the contents of the documents."
9. This observation shows that the learned first appellate court has no knowledge of the law and also of the common events. An example will explain. If my house is sold by X to Y and I became attesting witness of that sale deed, will it not amount to estoppel against me and I can say that I had no knowledge of the contents of the deed and I only attested the signatures of transferor. This is the funny argument given by the first appellate court. In my opinion, this document alone is sufficient to show that Manzoor Ahmad Khan has no title to the disputed plot No. 706 and, therefore, he is agreed to become the attesting witness of the deed of relinquishment of Smt. Ghafoorulnisa in favour of her brothers regarding the disputed ahata. He did not purchase the disputed ahata on 11.11.1925.
10. The case of the respondent Nos. 2 to 4 is that the disputed plot was purchased by the respondent No. 1 from Abdulla Khan by sale deed dated 11.11.1925. It is to be seen whether this ahata was purchased by the said sale deed and the defendant No. 1, Manzoor Ahmad Khan ever obtained possession of the disputed ahata situated in plot No. 706 on the basis of the sale deed.
11. Manzoor Ahmad Khan, defendant No. 1 was examined as D.W. 1 and in cross-examination, he has fully admitted the case of the plaintiff. He has stated that he purchased the plots Nos. 703, 704 and 706 from Abdulla Khan. He has further stated that Abdul Gani s/o Mohd. Bux Khan was co-owner of the said plots and had half share. He further stated that he also obtained the possession of the share from Abdul Gani amicably, though he admitted that Abdulla Khan and Abdul Gani both were in joint possession of the same. He has stated that after the sale deed, he took possession over the entire land of plot No. 706. He further stated that he did not take forcible possession but he took possession with the consent of Abdul Gani. He also admitted that Abdul Gani was the owner of the disputed plot. Therefore, it is admitted to defendant No. 1 that the plaintiff is the owner of the disputed plot.
12. There is another very important admission of defendant No. 1, Manzoor Ahmad Khan in cross-examination. He has also stated that Abdulla Khan has no share in the disputed plot No. 706 as partition had already taken place. That in partition, Abdulla Khan got the land, on which he had constructed the house and is living in the same. That Abdulla Gani got the disputed land in the partition. He repeatedly stated that the disputed plot was given to Abdul Gani in partition. It is strange that this clear admission of the case of the appellant by the respondent No. 1 has been ignored by the first appellate court and he has allowed the appeal. The judgment of appellate court is totally purverse and is against the evidence.
13. It appears from the statement of defendant No. 1 that he purchased the some other land from Abdulla Khan by sale deed dated 11.11.1925 and on that land, he constructed his own house. That the land in dispute belonged to Abdul Gani and, therefore, after the death of Abdul Gani, it was inherited by his three sons and one daughter.
14. It is, therefore, admitted position that Abdul Gani was the owner of the land and thereafter the appellant and respondent Nos. 5 and 6 have become the owners.
15. Now coming to the question of adverse possession. It may be mentioned that the title of the property in dispute has been established by the plaintiff-appellant. Therefore, it was for the defendants to prove that they are in adverse possession of the same and have acquired title by adverse possession. There is no cogent evidence to show that the respondents are in possession of the disputed land since last more than twelve years before the filing of the suit and their possession is adverse and hostile. Their case that possession was obtained by them after the sale deed dated 11.11.1925, has been found to be incorrect. No possession was obtained by the defendant No. 1 after the sale deed in the year 1925. Therefore, it was for the defendants to prove as to when they came in possession of the disputed ahata and they acquired title by adverse possession. They have totally failed to prove the same.
16. In the circumstances, the first appellate court has erred in allowing the appeal. The judgment and decree of the first appellate court are, therefore, liable to be quashed.
17. Accordingly, this second appeal is allowed with costs and the judgment and decree of the first appellate court passed in. Civil Appeal No. 124 of 1968 dated 11.9.1969 is quashed and the judgment and decree of the trial court are restored.