BASHA AND ORS.versusKHAIRUNNESSA BIVI AND ORS.

                        BASHA AND ORS.                                            A
                              v.
                   KHAIRUNNESSA BIVI AND ORS.

                             AUGUST 17, 1994

            [K. RAMASWAMY AND S.C. AGRAWAL, .JJ.J                                 B

       Mohammedan Law-Ancesral property-Partition of-Oral gift of cer-
tain propert)- Plaintiff in unintemtpted possession and enjoynzent in asser-
tion to his own right as on owner under partition deed-He having posses.1·01)'
title from 1952 till date of suit-Suit for declaration of title filed in          C
1968-Defendants tre;passed imo the property in January, 1968-f'lea of ad-
verse possessibn found fals!?-Decree granted is legal-Code of Civil proce-
dures, 1908.

      The 2nd plaintiff and his brother partitioned the properties by a
partition deed dated December 4, 1952. Eversince they have been in pos-          D
session and enjoyment of the property. The second plaintiff by an oral gift
settled some property to the 1st plaintiff. When the appellants - defendants
attempted to trespass into the land on January 6, 1968, the plaintiffs filed
suit on July 4, 1968 for declaration of title and for recovery of possession,
The Trial Court dismissed the suit. On appeal, the suit was decreed. The          E
High Court while upholding the decree dismissed the second appeal.

       In appeal by special leave it is contended that the property belongs
to the appellants and the declaration of title and possession of the property
was illegal.
                                                                                  F
      Dismissing the appeal, the Court

       HELD : 1.1. In the instant case, in the partition deed, there is a clear
recital of the properties which admittedly form part of ancestral property.
There is also a clear recital that they separated the property and thereafter G
the properties continued to be in possession and enjoyment of the respective
parties. The suit was filed on July 4' 1968 by which date more than 16 years
have passed and the plaintiff remained in uninterrupted possession and
enjoyment is assertion to his own right as an owner having obtained the
same under partition deed. Thereby he had possessory title right from 1952
till date of the suit. The declaration oftitle thereby given is clearly legal. The H
                                     709
    710                    SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A   appellants trespassed into the property on January 6, 1968. The assertion
    that they have title by adverse possession is round raise .because the trespass
    was for the first time on January 6, 1968 and the suit was filed on July 4,
    1968. Under these circumstances, the decree granted by the Appellate Court
    and affirmed by the High Court is perfectly legal. (711 ·C·F]

B            CIVIL APPELLATE JURISDICTION : Ci\11 Appeal No. 397 of
    1979.

         From the Judgment and Order dated 9.8.78 of the Madras High
    Court in Second Appeal No. 1640 of 1977.
c            G. Viswanatha Iyer, Dileep Tandon. and P.K. Pillai for the Appel·
    !ants.

             A.T.M. Sampath and S. Balaji for the Respondents

             The following Order of the Court was delivered :
D
          The appellants are the defendants. One Murthuza Hussain Sahib, the
    2nd Plaintiff and his brother Nawab Basha @ Syed Badrajjalami Hussain
    Sahib under Partition deed dated December 4, 1952, Ex.A-2 partitioned
    the properties and Item Nos. 1 and 2 of the ancestral property fell to the
E   share of Syed Murthuza Hussain Sahib. ihe Partition deed recites thus :

               "The share of properties allotted to the respective person, shall be
               enjoyed by them with absolute right. and freedoin thereto un·
               disputedly from this day onwards hereditarily from son to grand
               son and with powers of effecting gift sale and alienation one
F              individual shall have no right in respect of properties belonging to
               the other individual."

    Eversince they have been in possession and enjoyment of the property.
    The 2nd Plaintiff by an oral gift settled item no.l to the !st Plaintiff. When
G   the appellants attempted to trespass into the land on January 6, 1968, the
    respondents filed suit on July 4, 1968 for declaration of title and for
    recovery of possession. The Trial Court dismissed the suit. On appeal, the
    District Judge, Madurai in A.S. No. 358/1975 by its judgment and decree
    dated July 7, 1977 reversed the judgment and decree of the Trial Court
    and decreed the suit. The High Court in S.A. No. 1640/77 by judgment and
H   decree dated August 9, 1978 dismissed the second appeal. Thus this appeal
                               BASHA 1·. K. BIVI                             711

 by special leave.                                                                  A

          It is contended by Mr. G. Viswanatha Iyer, learned senior counsel
    for the appellants that the property belongs to Be<lralam Sahib and the
   appellants, the 5th defendant and defendant Nos. 3 and 4 are the <laughters
    of Syed Ba<lralam Sahib son of Babjan Sahib. Defendant~ 1 and 2 are the         B
   husbands of defendants 3 and 4. The property belonged to Babjan Sahib
   and the respondents have no title to the property unless they established
   the title through Babjan who is claimed to be the owner of the property.
   The declaration of title and possession of the property is clearly illegal. We
   find no force in the contention. It is seen that in the partition deed, Ex.
   A-2 thete is a clear recital of the properties which admittedly form part of     C
   ancestral property. There is also a clear recital that they separated the
   property and thereafter the properties continued to be in possession and
   enjoyment of the respective parties. Thereby Murthuza Hussain Sahib had
   the properties allotted to his share. Thereafter remained in possession and
   enjoyment till he parted with possession of item 1 by a gift given to the Isl    D
. respondent, his daughter and second item in his own possession. Admit-
   tedly, the suit was filed on July 4, 1968 by which date more than 16 years
   have passed and he remained to be in uninterrupted possession and
 . enjoyment in assertion to his own right as an owner having obtained the
   same under partition deed, Ex. A-2. Thereby he had possessory title right
   from 1952 till date of the suit. The declaration of title thereby given is       E
   clearly legal. It is found that they were in possession of the property and
  were enjoying the same by lease out etc. It is also found by the District
  Judge and affirmed by the High Court that the appellants trespassed the
   property on January 6, 1968. The plea of adverse possession set up by the
  appellants has been negatived. The assertion that they have the title by          F
  adverse possession is found false because the learned District Judge and
   the High Court found that the trespass was for the first time on January 6,
   1968 and the suit was filed on July 4, 1968. Therefore, the question of
  adverse possession does not arise. Under these circumstances, the decree
  granted by the Appellate Court and affirmed by the High Court is perfectly        G
  legal. It does not warrant any interference. The appeal is accordingly
  dismissed. No costs.


 A.G.                                                        Appeal dismissed.