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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.4 OF 1989
1. Iliahkhan s/o Younuskhan
2. Rahmunisabegum s/o Yonuskhan
age major, occup. agril.
r/of Parbhani.
ig .. Appellants/ori.
Plaintiffs
versus
1. Talayarkhan s/o Sherkhan
2. Eliaskhan s/o Sherkhan
3. Ahmadkhan s/o Sherkhan
since deceased, thrhough
legal representatives:-
3(1) Nayar Khan Ahmed Khan
age 40 years,
3(2) Nadim Khan Ahmed Khan,
age 35 years,
3(3) Saleem Khan Ahmed Khan,
age 33 years,
3(4) Tasleem Khan Ahmed Khan
age 28 years,
3(5) Amjad Khan Ahmed Khan,
age 22 years.
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4. Sherkhan s/o Gulabkhan,
since deceased, through
legal representatives:-
4(1) Talewar Khan s/o Sherkhan
age 52 years,
4(2) Shoukat Khan s/o Sherkhan
aqe 47 years,
4(3) Iliyas Khan s/o Sherkhan,
age 43 years,
4(4) Ahmed Khan s/o Sherkhan,
since deceased, through
his legal representatives:-
4(1) Nayar Khan s/o Ahmedkhan
4(2) Nadeem Khan s/o Ahmedkhan
4(3) Saleem Khan s/o Ahmedkhan
4(4) Tasleem Khan s/o Ahmedkhan
4(5) Amjad Khan s/o Ahmedkhan
4(6) Ilahi Khan s/o Younuskhan
R/of Lohagaon, Taluka and Respondents/
District Parbhani. ori.defendants
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Shri S.V.Gangapurwala,Advocate,for the appellants.
Shri P.V.Mandlik, Senior Counsel, i/by Shri
Y.M.Khan, Advocate, for Respondents
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Coram: P.R. Borkar, J.
Date : August 20, 2009
ORAL JUDGDMENT
01. 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.
02. 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.
03. 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)
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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.
04. 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.
05. The trial court and the first appellate
court both have recorded concurrent findings of
fact that the plaintiffs-appellants failed to
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prove oral gift in favour of Younuskhan and also
possession of Younuskhan over the suit property.
06. 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.
07. 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
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the first appellate court and, therefore, the same
cannot be argued now in the second appeal.
08. 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 ?
09. I have heard both the learned counsel at
length on the aforesaid substantial questions of
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law. So far as oral gift in favour of Younuskhnan
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
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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 co-parcenery
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
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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
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upon certain authorities. In B.S.V.Temple vs.
P.Krishna Murthi 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 vs.
D.J.P. Karini Sabha 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 vs.
Motiram 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
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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 vs.
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
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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
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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
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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 Younuskhn 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.
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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.
pnd/sa4.89 ig (P.R.BORKAR, J.)
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