JUDGMENT Sen, J.
1. For the elucidation of the facts of the case it is necessary to refer to the following genealogical table:
Sheikh Abdul Haq |
----------------------------------------------------
2. One Sheikh Abdul Haq was possessed of an eight anna zamindari share in Taluqa Bhadeon asli together with the dakhli villages of Salarpur and Chak Daud, an eight anna share in Mauza Basahi and 12 bighas held in Bigha dam tenure in Mauza, Makhdumpur. He died in 1901 leaving Mt. Jinnat Bibi, who was the daughter of a predeceased wife, Mt. Khudaija Bibi, his widow ( his second wife ), Hesamul Haq, defendant 1, who is his son, and two daughters Saida Bibi and Mt. Ummatunnissa alias Bunnan Bibi. The Quranic share of Saida Bibi in the estate of her father was 250 sihams out of 1440 Sihams. Mt. Saida Bibi died on 8th July 1920, leaving as her heirs her husband Shamim Ahmad, a son Nairn Ahmad, a daughter Mt. Bachchi Bibi alias Azizunnissa Bibi, and her mother Mt. Khudaija Bibi.
3. Upon the death of Abdul Haq, the entire property was mutated in the name of Hesamul Haq, his only son, who was then a minor. Saida Bibi does not appear to have claimed her share of the property during her lifetime. Upon her death the present suit was instituted on 30th June 1926, by her husband, her son and daughter for recovery of their shares in the property, which amounted to 210 sihams out of 252 sihams, which had devolved upon Saida Bibi upon the death of her father. Mt. Khudaija Bibi, the mother, did not join in the suit, but she was impleaded as defendant 4 in the action.
4. The suit was for recovery of 210 sihams and for Rs. 295 principal and interest on account of mesne profits for the years 1332 and 1333 FF. The suit was resisted upon the ground that Hesamul Haq was in adverse proprietary possession over the share in dispute for a period of more than 12 years before suit and that the claim was time barred. It was also contended that the suit was barred by Section 41, T. P. Act. The Court of first instance held that Hesamul Haq, defendant 1, had remained in adverse possession of this property for a period of more than 12 years before suit and that his possession had matured into title. Upon this ground the plaintiffs' claim was dismissed. The trial Court did not try the issue as regards the applicability of Section 41, T. P. Act.
5. The lower appellate Court held that the claim of the plaintiffs was barred with reference to a portion of the property, namely, her share in eight annas of Taluqa Bhadeon, together with the dakhli villages of Salarpur and Chak Daud. It held however that the defendants had failed to sustain the plea of adverse possession with reference to the shares in. Mauzas Basahi and Makhdumpur. In the result, the lower appellate Court modified the decree of the trial Court, granted the plaintiffs a decree for her share in the last two mentioned villages together with Rs. 50 as mesne profits, and dismissed her claim with reference to Mouza Bhadeon and the dakhli villages.
6. Plaintiffs appeal from the decree of the lower appellate Court against the portion of the decree of the lower appellate Court which disallowed her claim. It appears that, on 6th April 1918, Hesamul Haq had sold a four anna share out of the eight anna share of Taluqa Bhadeon to Mt. Mujtaba Bibi, his maternal aunt. On 18th June 1918, he had executed a sale deed of the remaining property- in dispute in favour of his wife, Mt. Akhtarunnissa Bibi, in lieu of her dower debt. Mt. Akhtarunnissa Bibi has filed a cross-objection, and she pleads that the plaintiff's claim with reference to the villages Basahi and Makhdumpur was time barred, and was obnoxious to the provisions of Section 41, T. P. Act.
7. We are concerned in this case with the nature of the possession of Hesamul Haq upon the death of his father. The property devolved upon a number of heirs. It is settled law that where a Mahomedan dies leaving a number of co heirs and only one of the heirs remains in possession of the property, his possession is not adverse to the other co-heirs in the absence of a clear denial of title and an overt act amounting to ouster.
8. In the normal conditions of things, the possession of one of the heirs is the virtual possession of all. The onus of proving adverse possession lies upon the party which urges that plea. The Court of first instance appears to have put itself upon the wrong track in dealing with the question of adverse possession by certain erroneous assumptions about the law relating to adverse possession and notice. In dealing with the question of adverse possession it has virtually cast the onus of proof upon the plaintiffs. It has further opined that registration was to be construed as notice to all the world. This proposition is clearly untenable and the Court of first instance appears to have pushed the doctrine of notice by registration to limits for which there is absolutely no justification. The Court observes:
Registration is construed to be notice to all the world, and we must hold that plaintiffs ancestor, Mt. Saida Bibi, along with the other heirs of Sheikh Abdul Haq, got notice of the registered documents executed by Hesamul Haq which are totally hostile to their interest, and which in clear and unambiguous terms disclaims the right and title of the other heirs to the property, and in which Hesamul Haq calls himself as the sole owner and transfers the property as he likes.
9. We have examined these documents and we have not been able to find any trace of the disclaimer set up by the trial Court in any of them, The case has been elaborately argued before us by Mr. Khwaja for the respondents, and he has not been able to point out a single document in which an adverse claim to the property, or a denial of the title of Saida Bibi was put forward by Hesamul Haq, nec vi, nec clam, nec precario. A number of documents could very conveniently have been ruled out of the case. The defendant-respondents had to put the commencement of an adverse title 12 years before the suit. 'So far as any documents were executed within the limitation period they cannot have any real value for the determination of the question of adverse possession excepting as evidence of a corroborative character. We do not therefore feel disposed to attach much importance to the lease executed by Hesamul Haq in favour of Qazi Mahmud on 26th January 1915, to the usufructuary mortgage in favour of Ganesh Tewari dated 25th October 1915, to the simple mortgage in favour of Mahip Narain dated 12th February 1917, and to the simple mortgage deed in favour of Ganesh on 25th November 1917.
10. On 19th March 1912, Hesamul Haq executed a simple mortgage of the share in Mauza, Basahi in favour of Hasan Zaid. The finding of the Court below with reference to this village is that the plaintiff's claim is not time barred. On 20th November 1920, Hesamul Haq appears to have sold a certain share in Taraf Bhitri which is outside the claim. This sale deed has no direct bearing upon the question in issue. It may however be conceded that where the title of the heirs relates to a number of properties, {any assertion of adverse title with reference to any one of the properties whether they are included in the plaint or not might have some bearing upon the question of adverse possession.
11. Registration per se does not amount to notice to all the world. With reference to 'the several documents executed by Hesamul Haq no duty was cast upon Mt. Saida Bibi or upon her heirs to seek the registration records. These documents could not therefore be construed to amount to notice. It is worthy of remark that the usufructuary mortgage in favour of Ganesh Tewari was executed within 12 years of the suit.
12. The finding of the lower appellate Court which is adverse to the appellants rests upon a number of circumstances. It is said that years back there had been hostile relations between Hesamul Haq and his mother and there were some strained feelings between Saida Bibi and her brother. Mere hostile feeling does not amount either to adverse possession or to ouster. Hesamal Haq might well have harboured secret feelings of animosity against his mother or his sister in the innermost recess, of his heart. But. there does not appear to have happened any exchange of hitter words or any use of violence; and it is patent that this animosity of feeling did not give rise to any denial of title on the part of Hesamul Haq. Reliance has chiefly been placed upon a lease of an entire eight anna share of Taluqa, Bhadeon, which was granted by Hesamul Haq to Mohammad Ali on 7th January 1914. Hesamul Haq was the person in possession. He had the management and control of the property. His was the only name which was recorded in the Government papers. Ha was the owner of the property jointly with the other cosharers. He recites the facts in the lease that he is the owner of the property and is in possession thereof but he does not deny the title of Saida Bibi or of the other co-sharers. This is a point which has been unfortunately missed by either of the Courts below. The document therefore doss not amount to a denial of title on the part of Hesamul Haq.
13. On the other hand, it is perfectly consistent with his position as managing co-sharer of the property. The granting of a lease is no more than the finding of a tenant. Hesamul Haq was not in a position to manage the property for himself and) for purposes of management and careful husbandry he executed this lease in favour of Mohammad Ali. This doss not in any way amount to a denial of title or ouster. Considerable stress has been laid upon a petition of Mt. Saida Bibi in the mutation department. This petition was lodged on 10th February 1914. In this petition Mt. Saida Bibi opposed the application made by the lessee for mutation in his favour. We are at a loss to understand how the statements contained in this petition can be construed to be any evidence of notice about a denial of title on the part of Hesamul Haq or of an ouster by him. The petition means no more than this that it was not open to only one of the cosharers to grant a lease of the entire property without the consent and cooperation of the other cosharers, We are clearly of opinion that the finding of the Court below proceeds upon insufficient data and upon a misconception of the law relating to adverse possession. Upon an analysis of the documentary evidence in this case we come to the conclusion that neither a denial of title nor any overt act of ouster has been made out in this case. The plaintiffs therefore were entitled to a decree with reference to their share in Mauza Bhadeon together with the shares in the dakhli village of Salarpur and Chak Daud. We accept the finding of the lower appellate Court that there is no reliable evidence that Hesamul Haq had denied the title of Saida Bibi regarding the basahi share and the haqiat in Makhdumpur.
14. We accept the reasoning upon which this finding proceeds. The learned Counsel for the respondent has failed to satisfy us that this finding is vitiated by any misapplication of law or of any rule of procedure.
15. As the last resort it has bean argued for the respondents that the plaintiffs' claim with reference to Bhadeon and the dakhli villages offends against the provisions of Section 41, T. P. Act. The plea has been put forward by Mt. Akhtarunnisa Bibi who is the wife of the principal defendant Hesamul Haq. She is a member of the family. It was impossible for her not to know that there were other claimants of the property by right of succession to the estate of Abdul Haq. She must be taken to have known about the pre-existing title of Saida Bibi to the property by right of succession to her father. The plea under this section is therefore not available to her.
16. We allow the appeal and grant a decree to the plaintiffs for possession of 210 sihams out of 1440 sihams in the eight anna share in Taluqa Bhadeon together with the dakhli villages of Salarpur and Chak Daud. Having regard to the materials before us we cannot determine the amount of m9sne profits which the plaintiffs are entitled to with reference to this, portion of the claim. Under Order 20, Rule 12, Civil P. C, we direct that an enquiry be held by the trial Court into the amount of mesne profits as may be due to the plaintiffs and a final decree be passed in their favour for such amount and as they may be entitled to. We disallow the cross-objection with costs. Plaintiffs are entitled to their costs throughout which will include fees in this Court on the higher scale.