Dismissed

Meherunnisa Begum Abdul Rahim (Daughter of Mohd. Ismile) v. Mohd. Abdul Wahab Ismile, Died Thr. L.Rs. Iqbal Masood and Ors.

Bombay HC25 Jun 2012SA/347/2012

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court dismissed the appeal. The court held that exclusive possession of co-sharers in ancestral property does not constitute adverse possession without proof of ouster, and holding that non-joining of other properties is not fatal to the suit.

What did the court decide?

Second appeal dismissed with no order as to costs.

Meherunnisa Begum Abdul Rahim (Daughter of Mohd. Ismile) Vs Mohd… — Partition | Bombay HC (2012)

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1 sa 347.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO. 347 OF 2012

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Meherunnisa Begum Abdul Rahim (Daughter of Mohd. Ismile) .. Appellant

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Versus

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Mohd. Abdul Wahab Ismile Died Through L.R.s' Iqbal Masood and others .. Respondents

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Shri S. V. Mundhe, Advocate for the Appellant. Shri H. I. Pathan, Advocate for the Respondent No. 1-B/Caveator.

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CORAM : S. V. GANGAPURWALA, J. DATE : 25TH JUNE, 2012.

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PER COURT :

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. The present respondent No. 1 filed a suit for partition and separate possession. The present appellant also filed a counter claim. The Trial Court decreed the suit filed by the respondent and dismissed the counter claim filed by the appellant. The appellant/original defendant No. 1 filed an appeal against the decree passed in the suit filed by the respondent No. 1, but did not assail the findings in respect of the counter claim. The lower

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2 sa 347.12

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Appellate Court dismissed the appeal. Aggrieved thereby the present second appeal.

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Shri Mundhe, the learned counsel for the appellant strenuously contends that all the joint family properties were not included in the suit. This aspect has not been considered by the Court. The learned counsel further contends that since the father of the appellant/defendant No. 1 died in the year 1983, since then the present appellant original defendant No. 1 is in continuous unobstructed peaceful possession over the suit property. In view of that the defendant No. 1 became owner by adverse possession. The suit is filed in the year 2005. The Courts below have not properly construed the concept of adverse possession. Even the possession of the present appellant was accepted and was not denied by the present respondents. According to the learned counsel, on this count also the suit ought to have been dismissed.

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Shri Pathan, the learned counsel for respondent No. 1-B supports the judgment.

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With the assistance of learned counsel I have gone through

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3 sa 347.12

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the judgments. Both the Courts have concurrently come to the conclusion that the suit property is an ancestral property of the plaintiff and defendants. The concept of adverse possession has not been proved by the defendants. Once it is accepted that the suit property is an ancestral property, then mere exclusive possession of defendants in itself would not tantamount to adverse possession. The possession of one co-owner or co-sharer is deemed to be on behalf of other co-owners or co-sharers. The defendants are required to prove ouster. The ouster will have to be proved by positive acts. It has been observed that after the death of father in the year 1983 even in the record of rights, the names of defendants were not recorded. Both the Courts after discussing the evidence oral as well as documentary have come to the conclusion that the defendants failed to prove adverse possession.

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As far as non joining of other properties are concerned, the same would not be fatal. The property at City Chowk was owned by the plaintiff and deceased father was tenant therein as it is the deceased father of the plaintiff himself has deposed in an earlier suit, this fact has also been considered by the Court.

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4 sa 347.12

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The lower Appellate Court has also examined the case from all the facets. It has considered the documents on record. Even the assessment list of the year 1990-91 shows that house stood in the name of Mohd. Ismail and the deposition of Mohd. Ismail is in respect of gut No. 152.

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In view of the above the second appeal being sans substantial question of law is dismissed, however, with no order as to costs.

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[ S. V. GANGAPURWALA, J. ]

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bsb/June 12

Meherunnisa Begum Abdul Rahim (Daughter of Mohd. Ismile) v. Mohd. Abdul Wahab Ismile, Died Thr. L.Rs. Iqbal Masood and Ors.

Case brief

What is this about?

What did the court decide?

Meherunnisa Begum Abdul Rahim (Daughter of Mohd. Ismile) v. Mohd. Abdul Wahab Ismile, Died Thr. L.Rs. Iqbal Masood and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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