Madhya Pradesh High Court
Abdul Muttallik vs Abdul Wahid on 30 June, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 30 of 2016
BETWEEN:-
ABDUL MUTTALLIK S/O ABDUL RAUF KHAN
SHERWANI, AGED ABOUT 49 YEARS, SUSNER,
DISTT. AGAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SADASHIV KRISHNA PAWNEKAR - ADVOCATE)
AND
ABDUL WAHID S/O ABDUL RAUF SHERWANI,
1. AGED ABOUT 54 YEARS, 425-FH, SCHEME NO.
54, INDORE (MADHYA PRADESH)
AKHTAR JANHA S/O ABDUL RAUF KHAN,
2. AGED ABOUT 60 YEARS, 425 - F H , SCHEME NO
54, INDORE (MADHYA PRADESH)
STATE OF M P THROUGH COLLECTOR AGAR
3.
AGAR MALWA (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI SAMEER VERMA - ADVOCATE)
.................................................................................................................
Reserved on : 16.03.2023
Pronounced on : 30.06.2023
................................................................................................................
This appeal having been heard and reserved for judgment,
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SARVATE
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2
coming on for pronouncement this day, the court passed the following:
JUDGEMENT
1. This appeal under Section 100 of the CPC has been preferred by
the appellant Abdul Mutallik being aggrieved by the judgment and
decree dated 15.12.2015 passed in Regular Civil Appeal No.43/2014 by
the Additional District Judge, Susner, District Shajapur, arising out of
the judgment and decree dated 21.08.2014 passed in Civil Suit No.80-
A/2013 and 81-A/2013 by the Additional Civil Judge, Susner, District
Shajapur.
2. The facts of the case in brief are that the appellant Abdul Mutallik
and respondent No.1 Abdul Wahid are real brothers and respondent
No.2 Akhtar Jahan is their sister. Their father was Abdul Rauf, who died
on 09.01.2008. Their mother was Jubeda Khatun, who died on
19.08.1990. On 11.01.2011, respondent No.1 Abdul Wahid instituted an
action before the trial Court for declaration of his title over half share in
the suit lands, for permanent injunction restraining the defendants from
interfering with his possession over the same and for mesne profits at
Rs.25,000/-. He submitted that the mother of the parties namely Jubeda
Khatun was the owner of the suit lands and upon her death 20 years ago
the same devolved equally upon him and the appellant and their father
Abdul Rauf. Upon death of Abdul Rauf he and the appellant have
become the owners of half share each in the suit lands. He demanded
his share from the appellant but he refused to do so upon which he
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SARVATE
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acquired knowledge that he has got himself recorded over the entire suit
lands by order dated 24.05.1991 passed in Namantaran Panji No.15
dated 18.06.1991. He has thereafter started denying his title to the suit
lands.
3. The claim was contested by the appellant submitting that during
his life time Abdul Rauf had given his entire property to his wife Jubeda
Khatun. On 10.06.1991 Jubeda Bee, respondent No.1 Abdul Wahid and
their sister Akhtar Jahan had executed a Hibanama in his favour with
respect to the entire suit lands and had thus transferred the same in his
favour. He consequently became the sole owner of the suit lands. He
also claimed title to the suit lands by virtue of adverse possession and
submitted that the claim is barred by time. He also filed a counter claim
for declaration of his title to the suit lands and for permanent injunction
restraining the defendants from interfering with his possession over the
same. Respondent No.3 Akhtar Jahan also contested the claim by filing
her written statement taking almost the same pleas as taken by the
appellant in his written statement.
4. Thereafter on 17.11.2011 the appellant instituted his separate suit
for declaration of his title to the suit lands and for permanent injunction
restraining the defendants therein from interfering with his possession
over the same. Respondent No. 1 Abdul Wahid, who was a defendant to
the suit contested the same by filing his written statement taking the
pleas as had been taken by him in the suit instituted by him. Respondent
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No.3 Akhtar Jahan filed her written statement admitting the claim. Both
the suits were consolidated by the trial Court and common issues were
framed therein and common evidence was led by the parties.
5. The trial Court by judgment and decree dated 21.08.2014 held
that the appellant has failed to prove that a Hibanama with respect to
the suit lands was executed by Jubeda Khatun in his favour on
10.06.1991. It further held that he has illegally got himself recorded
over the entire suit lands in their revenue records. Upon death of Abdul
Rauf and Jubeda Khatun the appellant and respondent No.1 both have
2/5th share each in the suit lands and respondent No.2 Akhtar Jahan has
1/5th share therein. It also held that the suit of respondent No.1 is
within time. Consequently, it partly decreed the claim of respondent
No.1 and dismissed the counter claim of the appellant and also
dismissed the claim of the appellant. The said judgment and decree
have been maintained by the lower appellate Court in appeal preferred
by the appellant. Hence this appeal.
6. By order dated 16.03.2017 the instant appeal has been admitted
on the following substantial questions of law :-
A . Whether the suit filed by the respondent/plaintiff was
time barred ?
B. Whether the finding of the Courts below that the
appellant has not proved the oral gift in his favour
(Hibanama) is perverse ?
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7. Learned counsel for the appellant has submitted that the Courts
below have erred in partly decreeing the claim of respondent No.1 and
in dismissing the claim of the appellant. The Hibanama executed by
Jubeda Khatun in his favour had categorically been proved by him by
way of the oral as well as documentary evidence brought by him on
record which has not been appreciated in proper perspective by both the
Courts below. The appellant had examined himself and his witnesses
Akhtar Jahan, his sister, Mohammed Hanif and Abdul Rehman to prove
the factum of execution of Hibanama by Jubeda Khatun in his favour.
He also brought cogent and reliable documentary evidence on record
particularly the Namantaran Panji Ex.P/7 from which also it is proved
that he was recorded over the suit lands in the revenue records
subsequent to death of Jubeda Khatun on the basis of Hibanama
executed by her in his favour. Under the Mohammedan law a written
Hibanama is not required to be executed hence Jubeda Khatun had
executed oral Hibanama in favour of appellant which could be and has
been proved by way of examination of witnesses in front of whom the
same was executed. It is further submitted that respondent No.1 has not
been in possession of the suit lands for past 40 years hence his claim
was apparently barred by time as the period of limitation for institution
of the suit would be 12 years from the date of his dispossession. The
Courts below have however illegally held his claim to be within time.
Arguments have also been advanced on other issues which had been
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decided by the Courts below but since they are not covered in the
substantial questions of law as framed by this Court, I do not deem it
necessary to dwell upon the same. Reliance has been placed on the
decision of the Supreme Court in Hero Vinoth (minor) V/s.
Seshammal 2007 (1) MPLJ 17, Ilahi Shamsuddin Nadaf V/s.
Jaitoon Bee Makbul Nadaf 1994 (2) MPWN Note No.80 and of this
Court in Azizan Bai V/s. Abdul Shakur 1984 MPWN Note No.78.
8. Per contra learned counsel for respondent No.1 has submitted that
the Courts below have not committed any error in holding that appellant
has not been able to prove the factum of execution of Hibanama by
Jubeda Khatun in his favour. The witnesses examined by him have
deposed contrary to the real facts hence have rightly been disbelieved.
There were glaring contradictions in their statements. The findings as
regards execution of the Hibanama is a pure finding of fact and is not
liable to be interfered with in Second Appeal. The respondent No.1 is a
co-owner of the suit lands hence would be deemed to have been in
possession throughout up to the date of suit hence the same was well
within time. It is hence submitted that the appeal deserves to be
dismissed.
9. I have heard the learned counsel for the parties and have perused
the record
Re: Substantial question of law No.2.
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10. The appellant has come with the case that on 10.06.1991 Jubeda
Khatun executed an oral Hibanama with respect to the entire suit lands
in his favour hence he has become the sole owner thereof on its
strength. In support he has examined himself as DW 1, Akhtar Jahan as
DW 2 and Mohammed Hanif as DW 3. These witnesses have stated that
Jubeda Khatun executed oral Hibanama in favour of the appellant in
their presence. The appellant stated that during life time of his mother
he made an application before the Tehsil office for his mutation over the
suit lands. After death of his mother his sister had brought an affidavit
of respondent No.1 which he had produced before the Tehsil office.
11. DW 2 Akhtar Jahan has stated that at the time of execution of the
Hibanama an affidavit was prepared by an Advocate of her father,
respondent No.1 and herself jointly which was produced by the
appellant in the Tehsil office for purpose of mutation. However the
Namantaran Panji Ex.D/7 wherein the appellant was recorded over the
entire suit lands after death of Jubeda Khatun states that upon her death
the appellant made the application for mutation on which her other heirs
including respondents No.1 and 2 and their father Abdul Rauf have
produced affidavits relinquishing their share in the suit lands. It is hence
evident that mutation was sought for by the appellant not on the basis of
any Hibanama but on the basis of relinquishment of their shares in the
suit lands by respondents No.1 and 2 and their father. Had Jubeda
Khatun transferred the entire suit lands in favour of the appellant by
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way of Hibanama then mutation would have been sought for and
allowed on that basis and not on the basis of relinquishment of their
shares in the suit lands by the other co-owners. If the Hibanama had
been executed there would not have been any necessity for furnishing
of any affidavits before the Tehsildar relinquishing share in the suit
lands.
12. The appellant has stated that he had made an application for
recording of his name in the Tehsil office during life time of his mother
but since his mother expired in the meanwhile he was directed to file a
fresh application. However, the Namantaran Panji Ex.D/7 does not
record that any application was made by the appellant for recording of
his name over the suit lands on the basis of any Hibanama executed by
Jubeda Khatun. It only states regarding furnishing of affidavits by the
other co-owners relinquishing their shares.
13. In the record there is no application which was filed by the
appellant in the Tehsil office seeking recording of his name over the suit
lands on the basis of Hibanama executed in his favour by Jubeda
Khatun. On the contrary mutation application was made by him only
after death of Jubeda Khatun. There is no proof that at the time of her
death any previous application for mutation was pending and a new
application was filed thereafter. The statement of appellant that he had
applied for his mutation on the basis of Hibanama prior to death of
Jubeda Khatun is hence not proved.
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14. The respondent No.2 as DW 2 has stated that her mother had
been making statements since 24-25 years to the effect that she would
give the suit lands by way of Hibanama to the appellant. She had made
such a declaration prior to marriages of appellant and respondent No.2
which took place around the year 1986. The alleged Hibanama is of the
year 1991. The declaration by Jubeda Khatun appears to have been
made much prior thereto. The statement of DW 2 has hence rightly not
been relied upon by the Courts below.
15. DW-3 Mohammed Hanif has stated that at the time of execution
of Hibanama in favour of the appellant, Jubeda Khatun had stated that
she would give the two plots at Indore purchased by Mohammed Rauf
in favour of respondent No.1. However, such statement has not been
made by the appellant or respondent No.2 nor is there any plea in that
regard. There is also discrepancy in his statement as regards funeral
expenses to be borne after death of Jubeda Khatun. He has stated as
regards an event taken place 24 years ago which in view of his
inconsistencies has rightly not been relied upon by the Courts below.
16. There is no other evidence on record from which the factum of
execution of Hibanama by Jubeda Khatun in favour of the appellant
could be supported or affirmed. The oral evidence led by the appellant
has not proved the said fact. The Hibanama has hence rightly not been
upheld by the Courts below who have hence not committed any error in
disbelieving the said Hibanama.
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Re: Substantial question of law No.1.
17. Since the Hibanama in favour of the appellant has not been
proved by him the necessary legal consequence of the same would be
that upon death of Jubeda Khatun the appellant and respondent No.1
inherited 2/5th share and respondent No.2 inherited 1/5th share in the suit
lands. They thus became co-owners and/or joint tenants of the suit
lands. It is well settled that a co-owner shall be deemed to be in actual
possession of the entire land even though he may not actually be
physically in possession of any particular part of the land. The
possession of a co-owner would also be deemed to be on behalf of all
the other co-owners of the land and not exclusive. The claim of the
appellant on the basis of adverse possession has been negatived by both
the Courts below. The cause of action for respondent No.1 to institute
the suit was acquiring knowledge of exclusive recording of name of
appellant over the suit lands, his refusing to give him his share in the
suit lands and denying his title which as per the plaint occurred on
20.03.2010. There is no reason to disbelieve the said statement of
respondent No.1. The suit hence instituted by him on 11.01.2011 was
well within time as has been held by both the Courts below.
15. Thus, as a result of the aforesaid discussion both the substantial
questions of law as framed are answered against the appellant and in
favour of respondent No.1. The judgments relied upon by the learned
counsel for the appellant are distinguishable in the facts of the case. As
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a consequence the appeal is found to be devoid of any merits and is
hereby dismissed. The parties shall bear their own costs throughout.
(PRANAY VERMA)
JUDGE
ns
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Signed by: NEERAJ
SARVATE
Signing time: 30-06-2023
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