PETITIONER: ABUBAKAR ABDUL INAMDAR (DEAD)BY LRS. AND OTHERS. Vs. RESPONDENT: HARUN ABDUL INAMDAR AND OTHERS DATE OF JUDGMENT30/08/1995 BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. FAIZAN UDDIN (J) CITATION: 1996 AIR 112 1995 SCC (5) 612 JT 1995 (7) 179 1995 SCALE (5)87 ACT: HEADNOTE: JUDGMENT:
O R D E R
This appeal having arisen from the Judgment and order
of the Bombay High Court relates to two properties which
belonged to one Syed Abdulla Inamdar. On his death, he was
succeeded by six children; four of whom are sons and two
daughters. The eldest son is Abubakar.
On the death of Syed Abdulla, agricultural lands which
were Inams in his hands, were assigned to Abubakar, the
eldest son, by certain orders passed by the Ruler of
Kolhapur as Inams of two kinds. It is the admitted case of
the parties that these Inams were impartible and had to
devolve upon the eldest son by the rule of primogeniture.
The other property was a dwelling unit which was owned by
Sayed Abdulla and remained in possession of abubakar.
On the abolition of the `Inams’ under the provisions of
the Bombay Merged Territories Miscellaneous Alienations
Abolition Act, 1955, Abubakar was regarded as a Watandar on
re-grant of the properties. His brothers and sisters, on the
one side ,laid claims to those lands as co-heirs of
Abubakar, taking the plea that by virtue of inheritance,
they had a share in that property; the bar of impartiability
and the rule of primogeniture having gone. Regarding the
house property,they laid claims to partition it as heirs.
Abubakar resisted the suit by laying claim that the landed
properties which were erstwhile `Inams’ became on re-grant
`personal’in his hands and therefore the other heirs of Syed
Abdulla had no share in those. Regarding the house he put up
the plea of adverse possession, even though, avowedly, he
had a will in his favour from his father. The trial court
partly decreed the suit against him insofar as the Inam
lands were concerned but dismissed the suit insofar as the
house was concerned; and the lower appellate court affirmed
that decision. Before the High court the appeal of Abubakar
as also the cross-objections on the contrary were allowed
with the result that the entire suit stood decreed,
rejecting the claim of Abubakar of the Inam lands being
personal to him and the house being in his adverse
possession, maturing in his ownerships.
We have heard Mr. Ganpule, learned senior counsel for
the appellant-Abubakar, at great length and pointedly with
regard to the nature of regrant after the abolition of the
Inam. It stands conceded by him that the terms of the grant
are not in any manner peculiar to the facts emerging in this
case but rather are the usual ones which find mention in
such grants. He was frank enough to concede before us that
had the parties been Hindus then the two decisions of this
Court, namely, (i) Nagesh Bisto Desai etc. etc. vs. Khando
Tirmal Desai etc. [1982 (3)SCP 341]; and (ii) Annasaheb
Bapusaheb Patil and others vs. Balwant (dead) by lrs and
heirs and others [1995 (2) SCC 543] would have taken over
the field to hold that the properties in the hands of the
Watandar were joint family properties and partible after the
re-grant . He tried in vain to convince us that principally
it would make a difference if the parties were Mohammedans,
as presently they are. If we come to analyse the proposition
canvassed, Syed Abdulla’s estate should normally have
devolved upon his six children in accordance with the shares
as defined by the Shariat Law. But, since the properties
were Inams and Impartible and the services to the Ruler due
from the members of the family were expected to be taken
from the eldest son by the rule of primogeniture, then the
heirs of Syed Abdulla, even though not forming a joint Hindu
family as is known to Hindu Law, would still be a group of
people, the representative of which was Abubakar in order to
hold the Inam. Once that Inam was abolished and re-grant
given to Abubakar, impartibility of the estate vanished and
thus this group of people were definitely entitled to claim
their respective shares in accordance with the law of
Sharfat. All the three courts below have taken such a view
and we see no impelling reason to draw a line of distinction
qua the aforesaid two cases in Nagesh Bisto Desai and
Annasaheb Bapusaheb (supra) so as to carve out an exception
to the principle for Mohammedans. The prime reason for such
interpretation is that the Ruler while drawing up the Inam
initially and conferring it again on Abubakar did not intend
to create any distinction between his subjects, be it
Muslims or Hindus. Uniformity of tradition in that regard
would be a good rule of reason so as to set the matter at
rest here.
With regard to the plea of adverse possession, the
appellant having been successful in the two courts below and
not in the High Court, one has to turn to the pleadings of
the appellant in his written statement. There he has pleaded
a duration of his having remained in exclusive possession of
the house, but nowhere has he pleaded a single overt act on
the basis of which it could be inferred or ascertained that
from a particular point of time his possession became
hostile and notorious to the complete exclusion of other
heirs, and his being in possession openly and hostilely.It
is true that some evidence, basically of Municipal register
entries, were inducted to prove the point but no amount of
proof can substitute pleadings which are the foundation of
the claim of a litigating party. The High Court caught the
appellant right at that point and drawing inference from the
evidence produced on record, concluded that correct
principles relating to the plea of adverse possession were
not applied by the courts below. The finding, as it appears
to us, was rightly reversed by the High Court requiring no
interference at our end.
For the foregoing reasons, there is no merit in this
appeal which is hereby dismissed. No costs.