Heard learned counsel for the appellants as well as learned counsel for the respondent who has appeared through caveat at the admission stage.
This is defendants' second appeal arising out of O.S. No.306 of 2000 which was dismissed by Civil Judge, Senior Division, Shahjahanpur. Against the said decree plaintiff filed Civil Appeal No.25 of 2009, which was allowed by Additional District Judge, Court No.2, Shahjahanpur on 10.11.2011, decree passed by the trial court was set aside and the suit for dispossession of the defendants from eastern half part of the house in dispute admeasuring 250 square meter was decreed, hence this second appeal.
The case of the plaintiff was that Riyasatullah and Mushtaque Ali Khan who were real brothers (sons of Inayatullah) were owners in possession of a house which had become khandhar (ruins) and plaintiff purchased eastern half portion of the same from Rukshar Begum, daughter and only heir of Riyasatullah who had died through sale deed dated 14.02.1992 (the said sale deed was in favour of plaintiff and his brother however afterwards plaintiff's brother sold his share to the plaintiff on 06.01.1996.) The property belonged to Inayatullah. On his death he left behind two sons Riasatullah Khan and Mustaque Ali Khan. After death of Mushtaque Ali Khan his half share was inherited by his widow Iftekhar Bano and his son Muazzam Ali. (Half share of Inayatullah was inherited by Rukhsar Begum his daughter.) Iftekhar Bano and Muazzam Ali through registered sale deed dated 14.01.1983 sold western half portion of the entire property to defendant No.1.
Copies of sale deeds dated 14.01.1983 and 14.02.1992 have been filed on the direction of the Court by learned counsel for the respondent along with affidavit.
Sale deed of defendant No.1 is earlier in point of time and categorically mentions that half portion of khandhar situate towards west has been sold that total area of khandhar is 500 square meter and the area of the sold property is 250 square meter. This categorically amounted to admission of defendant's vendor that he was owner of 50% of the khandhar situate towards west and had no concern with 50% of the property situate towards east. The eastern portion was sold by Rukhsar Begum to the plaintiff. The defendant No.1 took a very strange case. He stated that after purchasing half western portion he unauthorisedly occupied the rest half portion and matured his title. The plaintiff had pleaded that he had given it on licence to the defendant No.1 Habib Ahmad. Defendants appellants No.2 & 3 are sons of Habib Ahmad.
Lower appellate court has mentioned that defendant No.1 on the one hand denied the ownership of Rukhsar Begum and on the other hand he stated that his prior possession was in the knowledge of Smt. Rukhsar Begum. The defendants stated in their statement that they were not aware as to whether Inayatullah left behind two sons Mustaq Ali and Riyasatullah. This clearly amounted to admission of the plaintiff's case that Inayatullah had two sons Mustaq Ali and Riyasatullah. Defendants also expressed their ignorance as to whether any partition had taken place in between Mustaq Ali and Riyasatullah or not.
The specific case of defendant No.1 was that after purchasing half of the property through sale deed dated 14.01.1983 he ousted his vendors Iftekhar Bano and Muazzam Ali from the rest half portion and started claiming ownership regarding whole property. As specific portion had been sold to the defendant No.1 and as Iftekhar and Muazzam Ali were not the owners of the remaining half eastern portion hence their ouster was meaningless. Defendants did not plead that their possession was adverse to Rukhsar Begum. In fact defendants had pleaded that Rukhsar Begum was not the owner. In such situation question of adverse possession does not arise. If a defendant does not treat the plaintiff to be owner he cannot claim adverse possession against him. Accordingly, I do not find least error in the findings recorded by the courts below.
The trial court mainly dismissed the suit on the ground that plaintiff could not prove licence. Even if licence is not proved still plaintiff as owner can seek possession. In the plaint court fees had been paid on the market value of the property. Accordingly, suit could very well be decreed on the basis of title even if theory of licence was not found proved. Accordingly, the lower appellate court rightly refused to decide the question of licence.
I do not find least error in the findings of the lower appellate court. Second appeal is therefore dismissed under Order 4 Rule 11, C.P.C.
Order Date :- 23.2.2012 NLY