Bombay High Court
Safinaz Abbas Bharmal And Ors vs Khalil Ahmed Gulam Nabi Bhure And ... on 21 July, 2017
Bench: B.R. Gavai
FA. 899-1999
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL No. 899 OF 1999
WITH
CIVIL APPLICATION No. 5 OF 2014
1. Safinaz Abbas Bharmal )
Age 46, Occu. - Household )
2. Sultan Imam Qazi )
Age 44, Occu. - Household )
3. Qamar Aslam Mugri,. )
Age 42, Occu. - Household )
4. Rafat Rashid Inamdar, )
Age 41, Occu. - Household )
5. Shahina Sabir Ghatte )
Age 36, Occu. - Household )
All R/o. Village Borivali )
Palghar ... Appellants
Versus
1. Khalil Ahmed Gulam Nabi )
Bhure, Age 59, Occu.-Business )
2. Zaheer Ahmed Khali Ahmed )
Bhure, Age 44, Occu.-Business )
3. Adil Rashid Khalil Ahmed Bhure
Age 41, Occu. - Business )
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FA. 899-1999
4. Zaki Ahmed Khalil Ahmed )
Bhure, Age 39, Occu.-Business )
5. Zulekha w/o. Mohamed Yusuf )
Rais, Age 64, Occu.- Household )
All R/o. Village Manor, Taluka - )
Palghar, District - Thane )
6 Bahadur Bhat Bawa ( Deceased )
[Appeal abated against Resp. )
Nos. 6 and 12, as per order dt. )
21.11.2009] )
7. Kantilal Bahadur Bhai Patel )
Adult, Occu. - Business )
8. Ghanshyam Bahadur Bhai Patel )
Since deceased: )
8/1. Sangita Ghanshyam Patel, )
Adult, Occu.- Household )
8/2. Poonam Ghanshyam Patel )
Adult, Occu. - Household )
8/3. Kunal Ghanshyam Patel, )
Adult, Occu. - NIL. )
Nos. 8/1 to 8/3 are residing at )
Kanti Building, at village )
Navghar, Taluka Vasai )
District Thane )
9. Chotulal Bahadur Bhai Patel )
Adult, Occu. - Business )
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FA. 899-1999
10. Vinod Bahadur Bhai Patel )
Adult, Occu. - Business )
Nos. 6, 7 and 9, 10 are R/o. Kanti
Building at village Navghar, )
Taluka Vasai, District Thane )
11. Rufi Khalil Ahmed Bhure, )
Adult, Occu. - Agriculturist, )
R/o. Village Manor, )
Taluka - Palghar, District Thane )
12. Sikandar Gulam Hussai Bhure )
(since deceased, appeal abated )
13. Prashant Chandrakant Paal, )
Adult, Occu. - Business )
R/o. 11 Shushila Bldg., S. V. Road
Santacruz (W), Bombay 400054 )
14. Zubai Aziz Nachan )
15. Ejaz Aziz Nachan )
16. Asif Aziz Nachan )
17. Waqar Aziz Nachan )
18. Shahid Aziz Nachan )
19. Avaiz Aziz Nachan )
20. Uzair Aziz Nachan )
21. Aziz Ahmed Akbar Nachan )
Since decease: )
21/1. Mrs. Zubaida Aziz Nachan )
Adult, Occu. - Housewife )
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FA. 899-1999
21/2. Akbar Aziz Nachan )
Adult, Occu. - NIL )
21/3. Afsha Hasib Khot )
Adult, Occu. - NIL. )
Nos. 14 to 20 and 21/1 to 21/3 )
are residing at Village Borivali )
Padgha, Taluka Bhiwandi, )
District Thane ... Respondents
***
Mr. A. Y. Sakhare, Sr. counsel i/b R. M. Momin, for the Appellants.
Mr. M. M. Vashi, Sr. counsel i/b Ms. Gauri Godse, for Respondent
Nos. 1 to 4.
Mr. R. S. Datar, for Respondent No. 11.
***
CORAM : B. R. GAVAI, &
RIYAZ I. CHAGLA, JJ.
DATE : JULY 21, 2017
JUDGMENT [Per : B. R. GAVAI, J.]
1. This appeal arises out of the judgment and order passed
by the learned Civil Judge, Senior Division, Palghar in Special Civil
Suit No. 528 of 1996, dated 20th January, 1998 thereby dismissing the
suit of the plaintiffs, which was filed by the present Appellants
alongwith other plaintiffs, viz. Respondent Nos. 14 to 21 herein,
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FA. 899-1999
2. The facts in nutshell out of which the present appeal arise
are as under:
3. For appreciating the lis between the parties, it will be
convenient to refer the genealogy of the parties, which is as under:
Geneology
Gulam Nabi Bhure
(Died 25/12/1963)
_______________________________________________
Zubaida Khalil Zulekha Rais
(Daughter) (Son) (Daughter)
(Died on 23/2/1965) (Def No. 1) (Def No. 5)
Aziz Khan
(Husband)
(Plf. No. 13 (R-21)
(Died LRs / R 21/1 to 21/3)
______________________
(Children) Zaheer Adil Zaki Rufi
(D2) (D3) (D4) (D11)
Rest of the Defendants are other parties, who have purchased
properties from Defendant Nos. 1 to 4.
4. The deceased Gulam Nabi Bhure was owning and
possessing huge properties in Vasai and Palghar talukas of district
Thane. The properties are described in Schedule "A" to the suit and
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FA. 899-1999
reptroduction thereof would unnecessarily make the judgment bulky.
To state in nutshell, the property owned by Gulam Nabi consisted of
vast agricultural lands, bungalows and salt lands consisting of 2350
salt pans. Gulam Nabi had three children, viz. one son (Khalil) and
two daughters (Zubaida and Zulekha). Plaintiff Nos. 1 to 12 are
children of Zubaida and Ajij Ahmed Akbar Nachan who is Plaintiff
No. 13. It is their case that they have 25% share in the suit property,
originally owned by Gulam Nabi. The suit came to be filed for
administration i.e. for partition, separate possession and declaration
with ancillary reliefs. Defendant No. 1 Khalil is son of deceased
Gulam Nabi. Defendant Nos. 2 to 4 are sons of Defendant No. 1.
Defendant No. 5 - Zulekha Rais is sister of Defendant No. 1 Khalil
and deceased Zubaida. It is claim of the Plaintiffs that deceased
Gulam Nabi died on 25th December, 1963, leaving behind Defendant
No. 1 as his only son, and Defendant No. 5 Zulekha and deceased
Zubaida as the only daughters. It is claim of the Plaintiffs that after
the death of Gulam Nabi, Defendant No. 1, being male member of the
family and as a trustee of his two sisters, took charge and control of
the suit lands for himself as well as Defendant No. 5 and deceased
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FA. 899-1999
Zubaida. It is their case that Defendant No. 1 had no exclusive right,
title and interest in the properties left by the deceased. It is claim of
the Plaintiffs that as per Islamic Law (Shariyat), Defendant No. 1 was
entitled to 50% share whereas Defendant No. 5 and deceased Zubaida
were entitled to have 25% share each in the suit lands. Zubaida died
on 23rd February, 1965.
5. It is claim of the Plaintiffs that the deceased Zubaida was
demanding her 25% share in the suit properties till her death i.e. 23rd
February, 1965. However, Defendant No. 1 kept on promising, but did
not give any share till her death. It is further case of the Plaintiffs that
Plaintiff No. 13 and other Plaintiffs were also making the demands for
their share. However, Defendant No. 1 kept on promising that he will
give the share, but did not act on the said promise. It is their further
case that in or around October 1994 Plaintiffs came to know that
Defendant No. 1 had illegally and unlawfully excluded the Plaintiffs
and Defendant No. 5 from their share. It is their further case that on
inquiry, they came to know that since long that Defendant No. 1 with
malicious, mischievous intention and in malafide manner, was
attempting to deprive the Plaintiffs of their legitimate 25% share in the
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FA. 899-1999
suit properties. It is their case that Defendant No. 1 was promising
them that he would give their share, however, for the first time on 1 st
August, 1995 Defendant No. 1 denied them to give their share. In this
background, the suit came to be filed for various reliefs, including the
main relief of declaration that the Plaintiffs are entitled to 25% share
of deceased Zubaida and for administration i.e. partition and separate
possession of 25% share in the suit properties to which they are
entitled.
6. Suit came to be resisted by Defendant Nos. 1 to 4 (for
short "the contesting Defendants") by filing written-statement. It is
main contention of the contesting Defendants that much prior to the
death, deceased Gulam Nabi, by a valid oral gift deed, had gifted the
properties to Defendant Nos. 1 to 4 as well as to late Smt.
Khairunnissa, who was wife of Defendant No. 1. It is their further
case that vide registered deed dated 14th February, 1959 he executed a
declaration of gift in writing. It is their further case that on the basis
of the said oral gift, which was subsequently registered, deceased
Gulam Nabi made correspondence to the various authorities for
mutating name of these defendants in the record.
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FA. 899-1999
7. It is their further case that deceased Gulam Nabi, who
was having 50% share in salt pans alongwith deceased Haji Amir
Saheb Mohiuddin Rais, had divided his share in the lands including
salt pans into four parts and had given equal share to Defendant Nos. 1
to 4. It is their further case that insofar as residential properties /
bungalows are concerned, said properties were gifted by deceased
Gulam Nabi to late Khairunnisa. It is their further case that Gram
Panchayat Manikpur had passed a resolution for transferring the said
bungalows in the name of Khairunnisa in the year 1961. It is further
case of the contesting Defendants that deceased Gulam Nabi Amin
Saheb Bhure had gifted an amount of Rs. 15,000/- each to his
daughters, viz. Defendant No. 5 Zulekha and deceased Zubaida, which
amount was duly accepted by Defendant No. 5 and deceased Zubaida.
It is further case of contesting Defendants that Defendant No. 1 had
paid huge amount on account of gifts to his daughters. It was further
case of the contesting Defendants that deceased Zubaida and the
Plaintiffs, and Defendant No. 5 were very much aware about all this
since the year 1958. It was their specific case that suit was barred by
limitation.
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FA. 899-1999
8. Defendant No. 5 by filing written-statement supported the
claim of the Plaintiffs and claimed that she is entitled to 25% share in
the property left left by deceased Gulam Nabi.
9. Rest of the Defendants claimed that they were subsequent
purchasers having purchased the property bona fide by paying
valuable consideration after making due enquiry, and as such, prayed
for dismissal of the suit against them.
10. On the basis of rival pleadings, the learned trial Judge
framed following issues:
1. Do the Plaintiffs prove that the oral gift dt. 5/2/58
and the gift deed dt. 14/2/59 are illegal and void?
2. Do the Plaintiffs prove that they have ¼ share in the
suit properties?
3. Do the plaintiffs prove that transfer of suit lands
situated at Village Ten, Tal Palghar, in favour of the
defendants No. 2 to 4 is illegal and void?
4. Do the Plaintiffs prove that the sale deeds dt.
4/3/1991, 6/5/1991, and 28/8/1992 executed by the
defendants No. 2 to 4 in favour of the defendants No.
6 to 13 are illegal and void?
5. Do the plaintiffs prove that the defendants No. 1 to 4
are unlawfully trying to alienate the suit properties?
6. Do the defendants No. 6 to 13 prove that they are
bonafide purchasers of the respective suit lands for
value without notice?
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FA. 899-1999
7. Whether suit is within limitation?
8. Whether the plaintiffs are entitled to the reliefs as
prayed for?
9. What order and decree?
11. Plaintiffs examined Plaintiff No. 7 - Asif Nachan as
PW 1 in support of their claim. Plaintiffs also examined one Najir
Chikhalkar as PW 2 to support their claim that the deceased Gulam
Nabi was not in good physical as well as mental condition. One
Nadirshah Sadik Husan was examined as PW 3 to support the claim of
the Plaintiffs that they came to know that suit lands are acquired by
Defendant No. 1 in the year 1995. Plaintiffs examined one Sharad
Patil, Talathi of the village as PW 4 to support their their case that the
Defendant No. 1 started illegal activities somewhere in the year 1994.
12. Defendant No. 1 Khalil examined himself as DW 1 in
support of case of Defendant Nos. 1 to 4. contesting Defendants also
examined one Dilip Desai as DW 2 in support of their case that the
Gram Panchayat had passed the resolution on 3.3.1958 to transfer the
property in the name of Defendant No. 1 and his wife Khairunnisa.
They also examined one Nazim Rais in support of their case that the
property was gifted to them by deceased Gulam Nabi, and that
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FA. 899-1999
deceased Gulam Nabi was in good physical and mental condition in
the year 1958. They also examined one Shriram Thombare as DW 4,
who was Dy. Superintendent of Salt at Umeda, to prove that an
application was made by Gulam Nabi Bhure for transferring his eight
Anna share in the name of his son and grand sons. The documentary
evidence was also led on behalf of the Defendant Nos. 1 to 4 to
support their claim that oral gift in respect of which written document
was registered in the year 1959 was duly acted upon by the deceased
Gulam Nabi. It is their further case that on the basis of these
applications, the properties came to be transferred in the names of the
contesting Defendants as well as Khairunnisa, the wife of Defendant
No. 1 and their names were entered in the record in pursuance thereof.
After considering the evidence on record, the trial Court answered the
issues as under:
1. No.
2. Succeeded in proving their 1/4th share only in
the suit lands situated at village Nandgaon.
3. No.
4. No.
5. No.
6. Does not survive.
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FA. 899-1999
7. The suit is within limitation only in respect of
declaration relating to the sale deeds dt. 28.8.1992.
8. No.
9. The suit is dismissed.
13. Being aggrieved by the impugned judgment and order of
the learned trial Court, the Appellants who are some of the Plaintiffs
have approached this Court.
14. We have heard Mr. A. Y. Sakhare, learned senior counsel
appearing on behalf of the Appellants and Mr. Mr. M. M. Vashi,
learned senior counsel appearing on behalf of Defendant Nos. 1 to 4
and Mr. R. S. Datar appearing for Respondent No. 11.
15. Mr. Sakhare, learned senior counsel submits that the
learned trial Court has grossly erred in dismissing the suit on the issue
of limitation. He submits that the learned trial Judge has erred in
holding that the suit is barred in view of Article 65 of the Indian
Limitation Act. He submits that the period of limitation will have to
be computed from the date of knowledge of plaintiffs. He submits that
property was in possession of Defendant Nos. 1 to 4 as co-tenant and
the point of limitation would start from the date of denial of the right
of the Plaintiffs. He submits that all throughout Defendant Nos. 1 to 4
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FA. 899-1999
were enjoying the properties as co-tenants and only in the year 1994
they have denied claim of the Plaintiffs. It is therefore, submitted that
the learned trial Judge has erred in dismissing the suit on the ground of
limitation. Mr. Sakhare further submitted that in 1994 contesting
Defendants had never denied claim of the Plaintiffs, and as such, the
learned trial Judge has wrongly applied the provisions of Article 65 of
the Limitation Act, while dismissing the suit.
16. The learned senior counsel further submitted that
ownership of the suit lands vests in the Government of India. He
submits that as per the lease-deed, unless there is prior approval of the
Collector, the lease could not have been assigned by the deceased
Gulam Nabi to the contesting Defendants. He therefore, submits that
the appeal deserves to be allowed and the decree of partition and
separate possession should be passed. Learned senior counsel Mr.
Sakhare relied on the judgment of the Supreme Court in the case of -
Syed Shah Ghulam Ghouse Mohiuddin & Ors., Appellants Vs. Syed
Shah Ahmed Mohiuddin Kamisul Quadri & Ors., Respondents1.
17. Mr M. M. Vashi, learned senior counsel submits that the
Plaintiffs were knowing from the inception that property was gifted to
1 1971 (1) Supreme Court Cases 597
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FA. 899-1999
the Defendant No. 1 to 4 and deceased Khairunnisa by the deceased
Gulam Nabi in the year 1958 and thereafter the contesting Defendants
were enjoying the suit property as the absolute owners thereof. He
submits that oral gift coupled with registered document of 1959 would
clearly show that Gulam Nabi had gifted the property to the contesting
Defendants. He submits that the voluminous documents placed on
record by the Appellants would reveal that the deceased Gulam Nabi
had taken various steps, which are required under the provisions of
law for effecting the transfer in the name of the contesting Defendants.
He further submits that as a matter of fact in the year 1972 Defendant
No. 1 had given solvency certificate so as to enable Plaintiff No. 13 to
purchase forest land. He submits that in the said solvency certificate
details of all the properties of contesting Defendants, as they owners
being thereof are mentioned.
18. Mr. Vashi, learned senior counsel relied on the following
judgments :
(i) Mamomedally Tyebally & Ors, Appellants Vs.
Safiabai & Ors., Respondents1; [Privy Council
judgment]
(ii) Mohammadbhai Kasambhai Shaeikh & Ors.,
1 A. I. R. 1940 Privy Council 215;
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FA. 899-1999
Appellants Vs. Abdulla Kasambhai Sheikh,
Respondents1 [Apex Court Judgment]
19. With the assistance of the learned counsel appearing for
the parties, we have scrutinised the evidence on record.
20. Since we find that the appeal deserves to be dismissed
only on the issue of limitation, we frame the following issues for
consideration and record our findings against them as under:
Issues Findings
(i) Whether the suit is within limitation? No.
(ii) What order & decree? Appeal is
dismissed.
21. By now, it is settled principle of law that the issue of
limitation is a mixed question of fact and law. It is not in dispute that
the parties are closely related to each other. It is also not in dispute
that Defendant Nos. 1 to 4 and Defendant No. 5 are residents of the
same village, whereas the Plaintiffs are residents of another village in
adjoining tahsil of the same district. In this background, it will be
appropriate to refer to Article 65 of the Limitation Act. Relevant part
of the said Article is as under:
1 (2004) 13 Supreme Court Cases 385.
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FA. 899-1999
Description of suit Period of Time from which
limitation period begins to run
65 For possession of Twelve years When the
immovable property of possession of the
any interest therein based defendant
on title. becomes adverse
to the plaintiff.
Explanation.- For the
purposes of this article -
(a) ...
(b) where the suit is by a
Hindu or Muslim entitled
to the possession of
immovable property on
the death of a Hindu or
Muslim female, the
possession of the
defendant shall be
deemed to become
adverse only when the
female dies;
22. It will also be relevant to refer the observations of the
Privy Council in the case of Mahomedally (supra), which read as
under:
"It was not contended before the Board that the
plaintiff's suit is of the character mentioned in Art. 106
Limitation Act. It is a suit against certain Mahomedan co-
heirs by a person entitled to part of the interest of an heir
and the High Court on appeal rightly held that to such a suit
neither Art. 106 nor Art. 123 is applicable. The heirs of a
Mahomedan succeed to his estate in specific shares as
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FA. 899-1999
tenants in common and, the plaintiff's suit against the son
and daughters of Ebrahimji for due administration of what
came to their hands as property left by their father is
governed as regards immovable property by Art. 144 and as
regards movables by Art. 120: 20 I A 155 1; 59 I A 742. Upon
the proper appreciation of Art. 120 as between tenants in
common, it will be sufficient to refer to 57 I A 3253 and 45
Mad 6484. It does not appear that the widow, son or
daughters of Ebrahimji received what was to come to them
under the agreement of 24th September 1924 until the suit of
1924 had been decreed in 1926 which is well within six
years of filing of the present suit on 23 rd July, 1930. But
their Lordships think it right to add that on the evidence
they find no reason for holding that there had been an ouster
or exclusion of the plaintiffs prior to 23rd July, 1924 : indeed
there are concurrent findings of the Courts in India which
are inconsistent with any such contention."
23. It can be seen that the Privy Council has held that the
heirs of a Mahomedan succeed to his estate in specific shares as
tenants in common, and the suit for recovery of immovable property is
governed by Art. 144, presently Art. 65. It could thus, be seen that in
view of Art. 65, the suit will have to be filed within a period of 12
years when the possession of the defendant becomes adverse to the
plaintiff. It could thus, be seen that under Art. 65, suit will have to
filed within a period of twelve years from the ouster or exclusion of
1 20 I A 155 Mahomed Riast Ali v. Hasin Banu.
2 59 I A 74 Ghulam Muhammad v. Ghulam Husain
3 57 I A 325 Mt. Bolo v. Mt. Koklan.
4 45 Mad 648 Yerukola v. Yerukola
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FA. 899-1999
the plaintiff. However, in the present case since the Plaintiffs are
claiming through deceased Zubaida, in view of Explanation (b) of Art.
65, possession of Defendant Nos. 1 to 4 shall be deemed to have
become adverse only after the death of Zubaida.
24. In the present case, the dates are undisputed. The
deceased Gulam Nabi has expired on 25 th December, 1963. Zubaida
through whom Plaintiffs are claiming died on 23rd February, 1965. It
could thus, be seen that the issue that will have to be decided is as to
whether ouster or exclusion of the Plaintiffs is in the year 1994-95 as
claimed by them, or it is from 1959 as claimed by Defendant Nos. 1 to
4. If the Plaintiffs prove that it is for the first time in the year 1994-95
there was ouster or exclusion from the suit property, the suit will be
within limitation. Conversely, if the contesting Defendants prove that
ouster is prior to period of 12 years from the date of institution of the
suit, it will have to be held that suit is barred by limitation.
25. For considering the said issue, we will have to refer to the
pleadings as well as oral and documentary evidence on record. The
Plaintiffs have made a statement in paragraph 8 of the plaint that since
the death of Gulam Nabi Bure, the demands of 25% share in the suit
19 / 33
FA. 899-1999
property were made several times. It is further averred that Defendant
No. 1 kept on promising, but did not give share till 1st of August, 1995.
It is stated that for the first time in October 1994, the Plaintiff No. 7
came to know that Defendant No. 1 had illegally, in order to oust and
exclude the Plaintiffs, started showing inherited properties to the
prospective purchasers for the purpose of selling the same. It is stated
that thereafter after making enquiry and investigation by Plaintiff
No. 7 and Plaintiff Nos. 13, they came to know about illegal design of
the contesting Defendants. It is stated that at that time, the demand
was made for 25% share by the Plaintiffs and Defendant No. 1 assured
to give them their share. However, thereafter on several occasions the
Defendant No. 1 except promising did nothing. On 1 st of August,
1995, the Plaintiffs asked for the final reply from Defendant No. 1 and
on that day, Defendant No. 1 for the first time refused to give share. It
is therefore contended that 1st August, 1995 would be relevant date to
consider ouster or exclusion.
26. It will be relevant to refer the evidence of PW 1 Asif
Nachan, who is Plaintiff No. 7, and who is the only plaintiff examined
on behalf of the plaintiffs. Perusal of examination-in-chief of the said
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FA. 899-1999
witness itself would reveal that in the year 1963, he was nine years of
age. He has stated his mother had demanded share in the suit property
from Defendant No. 1, from time to time till her death. However,
Defendant No. 1 went on giving assurance. In para 10 of the
evidence, he has stated that after the death of his mother, Plaintiffs
made demand on several occasions, but Defendant No. 1 kept on
assuring them. Then he deposed about the averments made in the
plaint with regard to first time refusal by Defendant No. 1 on 1 st of
August, 1995.
27. In cross-examination, he has admitted that his father had
purchased forest land at village Asaverista, taluka Mokhada, district
Thane near about the year 1972 to 1974. He has admitted that
solvency certificate was necessary to purchase forest in that village.
To a specific suggestion as to whether the solvency certificate of
Rs. 2,00,000/- was given to him by Defendant No. 1 Khalil Ahmed, he
has shown ignorance. To another suggestion as to whether all the suit
properties were shown to be of Defendant No. 1 in the solvency
certificate, again he has shown ignorance. In the cross-examination on
behalf of Defendant No. 13, he has fairly admitted that his mother
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FA. 899-1999
never tried to get her name entered in the suit properties after the death
of Gulam Nabi. He further admitted that after the death of his mother
Zubaida, his father i.e. Plaintiff No. 13 never tried to get names of
plaintiffs entered in the suit property to the share of his mother.
28. As against this, Defendant Nos. 1 to 4 in their written-
statement have specifically averred that deceased Gulam Nabi in the
year 1958 had, on his free will, gifted various properties, including the
agriculture lands, salt pans, so also various bungalows and also forest
in favour of Defendant No. 1 and late Khairunnisa. It is further stated
that on the basis of this oral gift, the deceased himself gave a
statement for entering the name of Defendant No. 1 in the record of
rights of the Gram Panchayat and Salt Department. Insofar as salt pans
are concerned, it is stated that salt pans were owned by deceased
Gulam Nabi and one Mr. Rais. It is further stated that mutation was
duly entered in the year 1960, wherein names of four defendants were
entered as the Shilotridars alongwith Mr. Rais as co-owner in respect
of the lands including salt pans.
29. It is further asserted by Defendant No. 1 that acting as an
exclusive owner he had divided and partitioned his agricultural land at
22 / 33
FA. 899-1999
village Ten in the year 1964 and transferred them in the name of
Defendant Nos. 2, 3 and 4, and mutation entry to that effect was also
entered. It is further stated that necessary entries with regard to
transfer of bungalows in the name of Khairunnisa were also taken in
the record of Gram Panchayat.
30. Defendant Nos. 1 to 4 have examined Defendant No. 1
Khalil as DW 1. He has specifically stated in his deposition that right
from 1958 when the properties were gifted by deceased Gulam Nabi,
the contesting Defendants and deceased Khairunnisa were having
exclusive ownership of suit property and were possessing the same as
exclusive owners. He has specifically stated that deceased Zubaida
and the Plaintiff No. 13 were very well aware about the gift deed
executed in their favour by the said Gulam Nabi.
31. It would thus, be seen that so far as oral testimony of the
witnesses for the Plaintiffs and the contesting Defendants are
concerned, it would be word against the word. We therefore, find that
it will be more appropriate to refer to the documentary evidence
placed on record by the contesting Defendants. Defendant No. 1 has
specifically averred in his deposition that on 5th February, 1958 his
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FA. 899-1999
father expressed the desire to gift his property of his share to
Defendant No. 1, his sons and his wife, and therefore on the very same
day he made a declaration of oral gift. He has further deposed that his
father has executed a declaration of gift in writing on 14 th February,
1959 before the Sub-Registrar, Palghar. The said deed is duly
exhibited as Exhibit 169. The said deed was shown to DW 3 Najim
Rais, who is son of Amir Saheb, who was co-owner of the salt pans
alongwith Gulam Nabi. He has stated that his father Amir Saheb
gifted all his properties to his sons by way of oral gift. He has stated
that he used to meet Gulam Nabi in respect of business matters and
family affairs and he was residing with his son near his house. He has
stated that Gulam Nabi was in good physical as well as mental
condition till his death. He has stated that in the year 1958 he was 21
years old. In the year 1958 Gulam Nabi told that he had orally gifted
his properties to his son, daughter in law and grand sons. He has
stated that after the gift in the year 1958, Defendant Nos. 1 to 4
became co-owners with him and his brothers, so far as salt pans are
concerned. He has stated that in the month of February, 1958 Gulam
Nabi made declaration of oral gift and in the month of February 1959
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FA. 899-1999
Gulam Nabi made in writing declaration of the oral gift.
32. He further stated that in the Sub-Registrar's office one
Najim Rais, apart from his relative Mohammad Miya Bhure and Sub-
Registrar of Palghar were present. This witness is signatory to the
registered deed of declaration of gift. In his evidence, he has
identified signatures of deceased Gulam Nabi at Exhibit 169 and the
attesting witnesses, including himself. In paragraph 12 of his cross-
examination, he was thoroughly cross-examined with regard to
genuineness of the declaration of gift executed on 14.2.1959.
However, no damage could be done to his testimony.
33. Exhibit 170 is Jamin Kharda extract. The entry therein is
of 13th November, 1958. Exhibit 171 is the order passed by the Dy.
Superintendent of Salt. It shows that the office of the Dy.
Superintendent had received an application on 5 th February, 1958 from
Gulam Nabi stating therein that he has transferred his share in the
name of the contesting Defendants. The said application is allowed
vide order dated 11th October, 1960. The contesting Defendants have
examined one Shriram Ratan Thombare as DW 4. He has deposed on
the basis of the official record. He has deposed that an application
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FA. 899-1999
was made by Gulam Nabi to the Dy. Superintendent, Salt on 5 th
February, 1958. He has stated that the Department had called for
certain explanation from Gulam Nabi. He has produced the said
application in his evidence. Exhibit 209 is another application dated
8th September, 1959 made by the said Gulam Nabi. On these
applications, the order below Exhibit 171 came to be passed deleting
name of Gulam Nabi and entering name of the contesting Defendants.
Exhibit 175 and 176 are 7-12 extracts of land Survey No. 151 of
village Manikpur. Exhibit 127 is the mutation entry with respect to
the lands of village Manor. The said entry is executed on 28th
February, 1965. Exhibits 172 and 173 are the certificates from Income
Tax Officer, Palghar stating therein that Defendant No. 1 was assessed
for the assessment year 1959-60 on lease money received from salt-
pans, and these salt-pans were received by him as a result of gift made
by late Shri Haji Gulam Nabi Bhure in February, 1958. Exhibit 180 is
an assessment order passed by Gift Tax Department on 21st February,
1962 in respect of assessment of the deceased Haji Gulam Nabi Amin
Saheb. The said order clearly shows that salt pans are gifted to
Defendant No. 1 and Defendant Nos. 2 to 4, and land was gifted to
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FA. 899-1999
Defendant No. 1. The residential houses were gifted to deceased
Khairunnisa. These documents also show that deceased Gulam Nabi
has gifted Rs. 30,000/- to his married daughters. It could thus, be
found from perusal of the documentary evidence as placed on record,
that Defendant Nos. 1 to 4 have been claiming to be in exclusive
ownership and possession of the entire suit properties right from
inception. All the documents of revenue authorities, Dy.
Superintendent of Salt, Gram Panchayat, show that either deceased
Gulam Nabi or Defendant No. 1 have made applications to the
concerned authorities for entering the names of the contesting
Defendants in respect of immovable properties.
34. On perusal of the documents placed on record, it could
thus, be clearly seen that contesting Defendants are asserting their
rights as owner of the suit properties right from the beginning. Perusal
of the documents, which are part of official record, viz. revenue
authorities, Union of India and the Gram Panchayat, would reveal that
most of such entries are prior to the year 1965.
35. The Plaintiffs except vague statement in the plaint, and
deposition of Plaintiff No. 7, have stated that their mother Zubaida
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FA. 899-1999
was demanding the share till her death and that thereafter Plaintiff
No. 13 was demanding the share, and Defendant No. 1 was assuring
that he would give them the same. The Plaintiffs have not placed a
single document on record to substantiate their contention. In any
case, it is important to note that if the deceased was demanding their
share and Defendant No. 1 was dilly dallying, then at least after
deceased Zubaida's death the Plaintiffs could have taken some action
to assert their right. Undisputedly, after Zubeda's death, after a period
of almost 30 years, suit is filed. As already discussed hereinabove, the
Plaintiffs and contesting Defendants are closely related to each other.
Defendant Nos. 1 to 4 and Defendant No. 5, who supports the case of
the Plaintiffs, resided in the same village. Perusal of documentary
evidence reveals that after execution of declaration of the oral gift in
writing, the deceased Gulam Nabi had made applications to various
authorities including Revenue, Salt and Gram Panchayat for
transferring the properties in the name of contesting Defendants. Not
only that, but the said authorities had also given effect to the said
applications and transferred the properties in the name of contesting
Defendants and deceased Khairunnisa. It is thus, more than evident
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FA. 899-1999
that contesting Defendants had asserted their right to the suit
properties as exclusive owners thereof right from the period between
1958 to 1960. It is further to be noted that it has come in the testimony
of DW 1 Khalil that in the year 1965 he had sold godown which was
gifted by him to the husband of DW 5. The true copy of the said sale-
deed is produced at Exhibit 159/2. It could thus, be seen that at least
in the year 1965 all the parties were closely related to each other and
they knew that contesting Defendants or at least Defendant No. 1 had
asserted his right to the properties, gifted to him by deceased Gulam
Nabi, as the exclusive owner thereof. It is difficult to believe that
Plaintiffs were not aware about assertion by Defendant Nos. 1 to 4
with regard to their ownership of the suit property.
36. It could thus be seen that in view of the law laid down by
the Privy Council in the case of Mahomedally Tyebally (supra), the
suit ought to have been filed within a period of 12 years from the date
on which the contesting Defendants had asserted their right in the suit
property as exclusive owners thereof. The view taken by the Privy
Council in the case of Mahomedally Tyebally (supra) has been
followed by the Apex Court in the case of Mohammadbhai
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FA. 899-1999
Kasambhai (supra).
37. Insofar as the judgment of the Apex Court in the case of
Syed Shah Ghulam Ghouse Mohiuddin (supra) is concerned, the
learned senior counsel is right in relying on the following observations
of the Apex Court, which read as under:
"11. ... The estate of a deceased Mohammedan devolves
on his heirs at the moment of his death. The heirs succeed to
the estate as tenants in common in specific shares. Where
the heirs continue to hold the estate as tenants in common
without dividing it and one of them subsequently brings a
suit for recovery of share the period of limitation for the suit
does not run against him from the date of the death of the
deceased but from the date of express ouster of denial of title
and Article 144 of Schedule I of the Limitation Act, 1908
would be relevant Article."
38. The Apex Court in clear terms has held that period of
limitation for the suit does not run against him from the date of the
death of the deceased but from the date of express ouster or denial of
the title and that Art. 144 of Schedule I (Art. 65 of the present Act)
would be the relevant article. However, it would be relevant to refer
to the observations of their Lordships in paragraph 18, which read
thus:
"18. ... In the present case, it is apparent that until
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FA. 899-1999
the year 1927 the appellant and the other parties were clearly
kept out of the knowledge of the true character of the
properties. Even after 1927 it cannot be said on the evidence
on record that the appellant had any knowledge of the true
character of the properties orof ouster of adverse possession
of Abdul Hai. The reasons are that Abdul Hai never alleged
against the appellant and the other parties openly that he was
enjoying the properties to the total exclusion of the appellant
and the other brothers. Possession by one co-owner is not by
itself adverse to other co-owners. On the contrary, possession
by one co-owner is presumed to be the possession of all the
co-owners unless it is established that the possession of the
co-owner is in denial of title of co-owners and the possession
is in hostility to co-owners by exclusion of them. In the
present case there is no evidence to support this conclusion.
Ouster is an unequivocal act of assertion of title. There has to
be open denial of title to the parties who are entitled to it by
excluding and ousting them."
39. In the case before the Hon'ble Apex Court, the Plaintiffs
and other parties were kept out of knowledge of true character of the
property. It was posed that the properties were Dargah and Khankah
properties and not Matrooka properties. It was therefore, held by
Their Lordships that on account of active concealment of the fact that
the properties were not Dargah and Khankah, though the person who
claims adverse possession was having full knowledge of the fact, and
therefore, when the said fact came to the knowledge of the plaintiff
with regard to concealment of the nature of the property, the plaintiff
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FA. 899-1999
got a right to sue. The facts of the reported case are totally different
from the present case. In the present case, documents between 1958 to
1965, which documents are part of official record of the State
Government, Central Government and the Gram Panchayat, clearly
show that Defendant Nos. 1 to 4 were asserting their right as owners
of the property. The civil suit is required to be decided on the basis of
preponderance of probabilities. The stand of the Plaintiffs that they
were not aware about acts done by the contesting Defendants till 1994
is improbable. We are inclined to take this view, particularly taking
into consideration the undisputed relations between the parties. As
already been discussed hereinabove that acting upon the gift, deceased
Gulam Nabi had made various applications for transferring the land in
the name of the contesting Defendants and deceased Khairunnisa. Not
only that but the authorities, viz. State (Revenue), Union of India (Salt
Department) and Gram Panchayat acting upon the said applications
had made necessary entries in the statutory documents. Not only this,
but the husband of Defendant No. 5 had himself purchased one of the
properties gifted to Defendant No. 1 by a registered sale-deed in the
year 1965. If that be so, then the contention of the Plaintiffs that the
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FA. 899-1999
contesting Defendants were holding possession of the property as co-
owners is totally improbable.
40. In the result, we hold that Plaintiffs have failed to prove
that suit is within limitation. Appeal is therefore, dismissed
confirming the judgment and order of the trial court dismissing the
suit, with no order as to costs.
41. In view of disposal of the first appeal, Civil Application
No. 5 of 2014 filed therein does not survive, and it is accordingly
disposed of.
[RIYAZ I. CHAGLA, J.] [B. R. GAVAI, J.]
Vinayak Halemath
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