As per Section 52 of the Mahomedan Law (Mulla's Principles of Mahomedan Law, 19th edition), there is no recognition of right by birth in property held by father or forefather. There could be right either by inheritance or by bequest as per Section 53 of the said Act. Unlike Hindu Law, there is no concept of coparcenary property under the Mahomedan Law. Therefore, it cannot be said that Younuskhan, the minor son of Respondent No. 4 Sherkhan, had any right or interest in the property of Sherkhan during life time of Sherkhan. It cannot be said that the trial court and the first appellate court committed any error in holding that Younuskhan could not get any title on the basis of alleged partition. Partition could be between co-sharers or persons having interest in joint property. Respondent No. 4 in his evidence deposed that with a view to avoid the suit land coming under the clutches of the Tenancy Act, he had orally told talathi to enter the suit land in the name of Younuskhan. It is pointed out to me that in the written statement, defendants have stated that the name of Younuskhan was entered by Respondent No. 4 only to avoid the land being taken by the government under the Ceiling Act. But, neither of these statements help the plaintiffs in proving their case of Hiba. Thus, there is no oral or documentary evidence regarding Hiba (oral gift) and the circumstances do not indicate that there must be Hiba.
17. In the present case, in view of peculiar position under the Mahomedan Law, where there is absence of right by birth in a property, the theory of partition cannot be accepted. For partition, a person must have some interest or share in the property.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Second Appeal No. 4 of 1989
Decided On: 20.08.2009
Iliahkhan Vs. Talayarkhan and Ors.
Hon'ble Judges/Coram:
P.R. Borkar, J.
Citation: 2009(5) ALLMR 767
1. This Second Appeal is filed by original Plaintiffs whose suit for declaration and injunction bearing Regular Civil Suit No. 231 of 1983 was dismissed by the learned Joint Civil Judge, Junior Division, Parbhnai on 21.2.1986; which judgment and decree is further confirmed by the learned District Judge, Parbhani in Regular Civil Appeal No. 74 of 1986 decided on 13.10.1988.
2. Some of the facts giving rise to this litigation and admitted at this stage can be stated thus;
It is admitted that Respondent No. 4 Sherkhan was the father of original Respondent Nos. 1 to 3 and Younuskhan. Younuskhan is admittedly father of appellant No. 1 and husband of appellant No. 2. Pending this appeal, Respondent Nos. 3 and 4 have died and their legal representatives are brought on record.
3. It is the case of the appellants- plaintiffs that in or about 1954, Respondent No. 4 Sherkhan orally gifted survey No. 151 (Gat No. 308) and Survey No. 202/2 (Gat No. 459) situated at village Lohgaon, Taluka and District Parbhani. At that time, Younuskhan was minor. Younuskhan continued to be in possession of the suit property till his death in 1969. Thereafter appellants-plaintiffs, who were his son and widow respectively, became owners and possessors of the suit property. Respondents started disturbing plaintiffs' possession by challenging their ownership and hence, the suit was filed for declaration and possession.
4. Respondents-defendants filed their written statement and denied that Respondent No. 4 Sherkhan had executed any gift deed or Hiba in favour of Younuskhan in respect of the suit property. According to defendants, in or about 1954, the two properties were entered in the name of Younuskhan who then was minor, to avoid the property from coming into the clutches of the Ceiling Act. According to the defendants, Sherkhan never transferred or gifted the suit property in favour of Younuskhan. It is denied that initially Younuskhan and after his death, plaintiffs-appellants have been the owners and possessors of the suit property.
5. The trial court and the first appellate court both have recorded concurrent findings of fact that the plaintiffs-appellants failed to prove oral gift in favour of Younuskhan and also possession of Younuskhan over the suit property.
6. Heard learned Counsel for respective parties. Shri S.V. Gangapurwala, learned Counsel for the appellants, relying upon certain authorities, argued that while considering the evidence regarding gift/Hiba, the circumstantial evidence and probabilities of the case were not properly considered and merely because there was no direct oral evidence regarding Hiba, the case of the appellants was wrongly disbelieved. He also submitted that there was presumption regarding continuance of possession after the death of Younuskhan, as it is admitted that Younuskhan had been in possession of suit property during his life time. Shri Gangapurwala further submitted that Respondent No. 4 Sherkhan was estopped from denying the ownership of Younuskhan.
7. On the other hand, Shri P.V. Mandlik, learned Senior Counsel, argued that the evidence on record and certain admissions by the plaintiffs during oral evidence indicate that there was no Hiba and the plaintiffs were not in possession of the suit property when the suit was filed. It is also argued that the question of estoppel was not raised by the pleadings; there is no issue framed to that effect either in the trial court or before the first appellate court and, therefore, the same cannot be argued now in the second appeal.
8. This second appeal was admitted vide order dated 3.2.1989, but no substantial questions of law were framed at that time. However, from the arguments advanced before me, following questions of law can be said to be arising in this second appeal.
(1) Whether, by circumstantial evidence, plaintiffs-appellants proved that Respondent No. 4 Sherkhan had orally gifted the suit land to Younuskhan?
(2) Whether the presumption regarding possession and ownership from longstanding revenue entries and presumption regarding continuance of state of affairs have been properly considered by the trial court and the first appellate court?
(3) Whether Respondent No. 4 Sherkhan was estopped from denying title of Younuskhan in respect of the suit land?
9. I have heard both the learned Counsel at length on the aforesaid substantial questions of law. So far as oral gift in favour of Younuskhan is concerned, it appears that the gift is claimed to have been made in or about 1954 when Younuskhan was minor. When the suit was filed in 1983, appellant No. 1 Iliahkhan was 14 years of age and appellant No. 2 Rahimunisa was aged 35 years. Rahimunisa stated in her deposition recorded on 21.11.1985 at Exh.79 that her husband expired 15 years before and her marriage took place 20 years back. So, appellant No. 2 married Younuskhan in or about 1965. So, oral gift was prior to her marriage. Rahimunisa in her deposition has not claimed that shehad been present at the time of oral gift. It is her say that certain respectful persons and villagers were present at the time of gift. However, no witness on the point of gift is examined.
10. So far as revenue entries are concerned, the Trial Court and the First Appellate Court both noted that since 1954 to 1968-69 name of Younuskhan appears in the columns of ownership and possession of the suit properties. Advocate Shri S.V. Gangapurwala submitted that in the Khasra Patrak and Pahani patrak, name of Younuskhan was mutated. However, this mutation and the entries in the revenue record only indicate that Younuskhan got the property by way of partition. Therefore, revenue record does not show that there was any gift by Respondent No. 4 in favour of deceased Younuskhan.
11. As per Section 52 of the Mahomedan Law (Mulla's Principles of Mahomedan Law, 19th edition), there is no recognition of right by birth in property held by father or forefather. There could be right either by inheritance or by bequest as per Section 53 of the said Act. Unlike Hindu Law, there is no concept of coparcenary property under the Mahomedan Law. Therefore, it cannot be said that Younuskhan, the minor son of Respondent No. 4 Sherkhan, had any right or interest in the property of Sherkhan during life time of Sherkhan. It cannot be said that the trial court and the first appellate court committed any error in holding that Younuskhan could not get any title on the basis of alleged partition. Partition could be between co-sharers or persons having interest in joint property. Respondent No. 4 in his evidence deposed that with a view to avoid the suit land coming under the clutches of the Tenancy Act, he had orally told talathi to enter the suit land in the name of Younuskhan. It is pointed out to me that in the written statement, defendants have stated that the name of Younuskhan was entered by Respondent No. 4 only to avoid the land being taken by the government under the Ceiling Act. But, neither of these statements help the plaintiffs in proving their case of Hiba. Thus, there is no oral or documentary evidence regarding Hiba (oral gift) and the circumstances do not indicate that there must be Hiba.
12. Shri Gangapurwala, learned Counsel for the appellants submitted that as per Section 149 of Mahomedan Law (Mulla's Principles of Mahomedan Law referred to above), three essential requirements are to be complied with for the purpose of gift. Those are:
(1) a declaration of gift by the donor,
(2) an acceptance of the gift, express or implied, by or on behalf of the donee, and;
(3) delivery of the gift.
13. Had there been evidence either in the form of revenue record or oral evidence that there was a declaration of gift by Respondent No. 4 in favour of Younuskhan, it could have been presumed that there was acceptance of gift by mother of Younuskhan (minor) on his behalf and implied delivery of possession to her. Admittedly Younuskhan was in possession of the suit property during his life time.
14. Learned Counsel for the appellants relied upon certain authorities. In B.S.V. Temple v. P. Krishna Murthi MANU/SC/0348/1973 : AIR 1973 SC 1299 and more particularly paragraphs 5, 6 and 8 thereof, it has been laid down that the presumption arising from several entries in the revenue record of large number of years in respect of ownership and possession of land with certain person does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate.
15. Second case cited is Shikharchand v. D.J.P. Karini Sabha MANU/SC/0349/1974 : AIR 1974 SC 1178. After referring to Section 45 of the Central Provinces Land Revenue Act, 1917, it is laid down in para 5 that the entries in the record of rights shall be presumed to be correct unless the contrary is shown and there is presumption of correctness of the Khasra entries and therefore burden of proving adverse possession is a heavy one on the person alleging so.
16. The third case on the same point of presumption of revenue entries, is Shekoji v. Motiram MANU/MH/1057/2006 : 2007 (1) Mh.L.J. 747. In paragraph 10 of the judgment, it has been laid down that the oral evidence of the plaintiffs regarding partition is reinforced by mutation entry No. 430. Under the provisions of Hindu Law, oral partition is permissible. It is an usual mode in agrarian Hindu community to effect oral partition of the agricultural lands by referring to their local names and then such oral partition is reported to the revenue authorities for effecting mutation.
17. In the present case, in view of peculiar position under the Mahomedan Law, where there is absence of right by birth in a property, the theory of partition cannot be accepted. For partition, a person must have some interest or share in the property. Moreover, except the mutation of 1954, there is no document on record to show how Younuskhan obtained title to the suit property. As stated earlier, there is no oral or documentary evidence on record regarding Hiba.
18. Learned Counsel for the appellant argued that it is admitted by the respondents in their evidence that Younuskhan was in possession of the suit property during his life time and, therefore, it should be presumed that after his death, his heirs (plaintiffs-appellants) continued to be in possession of the suit properties and for the purpose, reliance is placed on Ambika Prasad v. Ram Ekbal Rai AIR 1966 SC 605. In paragraph 15, the Hon'ble Apex Court laid down that there could be presumption of continuance that may operate retrospectively or prospectively. The rule that the presumption of continuance may operate retrospectively has been recognized and by this rule of evidence one can presume the continuity of things backward or forward. It has further been observed that the presumption of continuity weakens with the passage of time and how far the presumption may be drawn both backwards and forwards depends upon the nature of the things and the surrounding circumstances.
19. In the present case, it has come in the evidence that from 1954 to 1968-69, the revenue entries showed the name of Younuskhan and after his death, plaintiffs' names were entered in the revenue record as owners and possessors of the suit property. So, ordinarily, we could have presumed that the plaintiffs continued to be in possession of the property till filing of the suit in 1983. However, we find certain admissions by plaintiff No. 2 in her cross examination which raises some doubts and which prevent us from drawing any presumption about continuity of possession of the plaintiffs-appellants over the suit property.
20. Plaintiff No. 2 Rahimunisa begum has stated in her deposition that after the death of Younuskhan, she along with plaintiff No. 1 went to reside at her parents' house. In paragraph 5 of her deposition at Exh.70, she has further stated that she had sown cotton crop on four occasions during previous 15 years. (Her statement was recorded on 21.11.1985). She further deposed that she had not sold cotton at any time and could not get yield from the land due to obstruction by defendants during previous 15 years. She further admitted that she had no Naukarnama of any servant, although in the examination in chief she deposed that she was cultivating the land through servant. She further deposed that she did not reside at Lohagaon at any time after the demise of her husband and she had been residing at Parbhani. Both trial court and the first appellate court noted that thus, the plaintiffs were not in possession of the suit property as on the date of filing of the suit or just prior to that. No witness is examined by plaintiffs to show their possession over the suit property. It is pointed out that the land remained fallow only after temporary injunction was obtained by the plaintiffs in the suit. In other words, all these circumstances clearly show that the defendants must be in possession of the suit property after the death of Younuskhan. Both the courts below have concurrently held that the plaintiffs have failed to prove their possession over the suit property.
21. The plaintiffs never came out with a case of adverse possession during life time of Younuskhan even as an alternate plea so as to perfect his/their title over suit lands by adverse possession. As regards plea of estoppel, in my opinion, it is a mixed question of law and facts and therefore there should have been pleadings. There should have been issue before the trial court on that aspect and in absence of such issue either before the trial court or the first appellate court, it would not be proper to raise the same now for the first time in this second appeal. Moreover, assuming that such issue can be considered by this Court in the second appeal for the first time, yet there is nothing on record to show that the doctrine of estoppel operated against Respondent No. 4 Sherkhan. All that Sherkhan represented before the revenue authorities was that the lands were allotted to Younuskhan in partition. There is nothing on record, to show that any representation was made to Younuskhan or to the present appellants on the basis of which Younuskhan or present appellants changed their position adverse to their interest as required by Section 115 of the Evidence Act.
22. In this view of the matter, in my opinion, second appeal cannot be allowed. The findings recorded by the two courts below do not require any interference by this Court. Hence, second appeal is dismissed. Parties to bear their own costs.
23. At this stage, learned Advocate Shri S.V. Gangapaurwala prays that the interim order of injunction be continued. However, the trial court, the first appellate court and even this Court have come to the conclusion that the plaintiffs are not in possession of the suit property and, therefore, the prayer is rejected.
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