JUDGMENT
Navin Chandra Sharma, J.
1. Dispute relates to a plot of land marked v c l n in the site plan annexed to the plaint which admeasures 80′ east-west and 49.6′ north-south and which is situated in Mohalla Sardarpura of Banner on the north of the pol of Joshi Khimraj. Undoubtedly by a registered sale deed executed on June 7, 1987 and registered on July 15, 1987, Suleman Khan son Anwar Khan and Usman and Habib sons of Suleman Khan Pathan Musalmans of Barmer had for a consideration of Rs. 499/-, sold a plot of two houses measuring 30 cubits east-west and 40 cubits north-south with boundaries specified therein to Usman son of Gheesa and his son Alladeen. Cubit is an old measurement, the length of the arm from the elbow to the tip of the middle finger and is from 18 to 22″. The boundaries of this plot were specified in the sale-deed Ex. 1 as follows:
East-‘Parat’ land of Shri Sardaro and Pancho;
West-Way and gate of the plot sold opening on the way;
North-Gali;
South-House of Khatik Mirabux and Ismail.
2. Usman son of Gheesa was father of Alladeen defendant No. 6 of the Civil Original Suit No. 184 of 1968 (old), (13 of 1970 (new) instituted by Ranchhoddas respondent No. 1, Mira Prakash defendant No. 1 in this suit claimed himself to be son-in law of Usman son of Gheesa and according to him, Usman had two children, namely, Alladeen defendant No. 6 (son) and Mst. Jahura (daughter). Deen Mohammed defendant No. 4 is son of Meerabux from Mst. Jahura. Ismail defendant No. 2 was brother of Mira Prakash, Mst. Amina deceased defendant No. 3 was the widowed mother Mira Bux and Ismail and Umaria defendant No. 5 was son of Ismail.
3. On April 12, 1968 Ranchhod Das respondent No. 1 instituted the above civil suit against the aforesaid defendants in the court of the Civil Judge Balotra, which was subsequently transferred to the court of the Munsif Barmer with the averments that Alladeen son of Usman had purchased the aforesaid plot from Suleman Khan son of Anwar Khan and Usman and Habib sons of Suleman Khan under a sale-deed registered on July 15, 1937 and since then he was in possession of the said plot. On the southern side of the plot there was a constructed house of Mira Prakash and Ismail (defendant Nos. 1 and 2) which they had purchased from Sitaram, Jassiram and Atma Ram sons of Ganesh Mal Agarwal under a sale-deed dated February 9, 1939. It was alleged by that plaintiff that out of the plot of the land which had been purchased on July 7, 1937, Alladeen made a gift of a portion of the plot marked v c l n in favour of Deen Mohammed defendant No. 4 son of Mira Prakash. The portion of the land gifted by Alladeen to Deen Mohammed measured 15 cubits north-south and 30 cubits east-west. After excluding the portion of the plot gifted by Alladeen to Deen Mohammed, he was left with the portion of the plot marked v c l n in the site plan annexed to the plaint. Just adjoining the plot v c l n towards its north there were 8 ‘kotadies’ belonging to Alladeen and gates of ‘katades’ opened towards the plot marked v c l n Alladeen was indebted and therefore, by a registered mortgage-deed dated, february 7, 1961, he mortgaged the plot marked v c l n alongwith 8 ‘kotadies’ and ‘dalechi’ and some vacant land towards north of the ‘kotadies’ with the plaintiff after borrowing a sum of Rs. 200/- from the latter. It was stipulated in the mortgage-deed Ex. 2 that Alladeen will pay interest at rate of Re. 1 % per cent per month on the said amount of Rs. 2000/- coming to Rs. 20/-per month. It was a usufructuary mortgage. However, Alladeen took the eight ‘kotadies’ and the land on rent from the plaintiff under the rent note Ex. 3 and agreed to pay Rs. 20/- per month as rent to the plaintiff in lieu of interest on the mortgage amount. Ranchhod Das plaintiff had obtained a money decree for Rs. 1290/- against Alladeen and in execution of that decree, he got attached the said plot of the land and the ‘kotadies’ and got proclamation for sale issued subject to the mortgage in August, 1964. Consequently, Alladeen by a registered sale-deed dated September 23, 1966 sold the plot of land and the 8 ‘kotadies’ to the plaintiff for a consideration of Rs. 7000/-. Thus the plaintiff claims that he became the owner of plot of land marked v c l n along with 8 ‘kotadies’ and “Dalechi” on the north on the Kotadies and obtained their possession. However, it was alleged that when on September 28, 1966, the plaintiff went to this plot to collect rent from the tenants in the ‘katadies’, he found that defendants Nos. 1 to 5 were dismantling the thorny bushes which existed at place v c l n to v c l n marked in the site plan and these defendants ousted the plaintiff from the land v c l n It was also alleged that along with the plot of land, the plaintiff had also purchased 5 Patties and 1300 stones (Khandas) which were lying on the plot. Ranchhod Das plaintiff, therefore, sued for declaration that he was owner of the plot of land marked as v c l n in the site plan, for Rs. 430/- as price of the five Patties and 1300 stones and mesne profits as the rate of Rs. 12/- per month from defendants Nos. 1 to 5.
4. The suit was contested by Meerabux defendant No. 1 His case was that the plots of land v c l n and v c l n were no doubt purchased by Usman father of defendant No. 6 from Suleman, but according to him, some time after the purchase of the plot, Usman father of defendant No. 6 had made a gift of the entire plot in favour of his daughter Mst. Jahura (wife of Meera bux defendant No. 1 ) and since then Mst. Jahura was in its possession. It was denied that Alladeen was even in possession of the plot. On the south of the plot, there was house of Meerabux which he had purchased in the year 1939 from Sitaram, Jassiram and Atmaram. Meerabux alleged that as Usman had gifted the entire plot for her daughter Mst. Jahura, Alladeen was left with no right, title or interest in the plot which he could mortgage and subsequently transfer in favour of the plaintiff. In the alternative, it was pleaded that Mst. Jahura and the defendant No. 1 had acquired title by adverse possession to the plot. The plaintiff filed a rejoinder on August 4, 1968.
5. Munsif Barmer in his judgment dated October 9, 1971 found that the plot had been purchased by Usman father of Alladeen defendant No. 6 from Suleman on June 7, 1937 under the sale-deed Ex. 1. After the death of Usman, defendant No. 6 became its owner and he had mortgaged it in favour of the plaintiff on February 7, 1961 and subsequently sold it in plaintiff’s favour on September 23, 1966 under the sale-deed Ex. 10. The defendant No. 6 remained in occupation of the ‘kotadies’ and the plot as a tenant of the plaintiff during the subsistence of the mortgage. After the sale in favour of the plaintiff, the plaintiff became its owner. The Munsif disbelieved the version of the defendant No. 1 Meerabux that Usman had gifted the plot in favour of his daughter Mst. Jahura or that Mst. Jahura was in possession of the plot. It was accepted that defendant No. 6 has also sold five Patties and 1300 ‘Khandas’ to the plaintiff and plaintiff was entitled to recover Rs. 430/- as price of these Patties and Khandas from the defendants Nos. 1 to 5. It was found that defendants Nos. 1 to 5 had dispossessed the plaintiff from the plot on September 28, 1966 and took the plot in their possession forcibly. Consequently, the trial court decreed the suit of the plaintiff in toto. It may be mentioned here that Mst. Amina defendant No. 3 had died during the pendency of the suit July, 1968 and as her legal representatives were already on record, her name was removed from the array of the defendants by order of the Munsif dated July 22, 1968.
6. Aggrieved by the decree of the Munsif, Barmer, the defendants Nos. 1, 2, 4 and 5 filed Civil First Appeal No. 2 of 1974 which was dismissed by the Civil Judge Barmer on December 17, 1974. The First Appellate Court, upheld the findings of the Munsif on all the issues and maintained the decree, passed in favour of the plaintiff by the Munsif. These defendants filed the present Second Appeal before this Court. During the pendency of this appeal, appellant, defendant No. 1 Meerabux died on July 20, 1977 and appellants Nos. 1 (a) to (h) are his legal representatives. Similarly, appellant-defendant No. 2 Ismail died on May 6, 1980 and appellants 2(a) to (f) were substituted as his legal representatives, Alladeen defendant No. 6, who was respondent No. 2 in his appeal, also died during the pendency of the appeal and respondents Nos. 2(a) to (g) are his legal representatives.
7. Mr. A.L. Chopra appearing for the appellants frankly conceded that it was not established that Usman father of Alladeen had made a gift of the plot in suit in favour of his daughter Mst. Jahura. However, he contended that it had been admitted by the plaintiff-respondent No. 1 in his rejoinder to the written statement that the plot in dispute was owned and possessed by Usman. Usman was survived by his son Alladeen and his daughter Jahura On the death of Usman, Mst. Jahura was also entitled to inheritance as heir of Usman & as daughter she was entitled to get 1/3rd share in the plot left by Usman and the remaining 2/3rd share was to go to Alladeen. It was pointed out that this argument was raised on behalf of the appellants before the First Appellate Court, but the learned Civil Judge did not consider the point on the grounds that the question raised was a mixed question of law and fact and could not be allowed to be agitated for the first time in appeal.
8. On going through the entire evidence adduced in the case, it is clear from the sale-deed Ex. 1 executed by Suleman Khan son of Anwar Khan, Usman and Habib sons of Suleman Khan had sold a plot of land on which, two houses could be constructed to Usman son of Gheesa and his son Alladeen and the entire plot measured 30 cubits east-west and 40 cubits north-south. In this sale-deed, houses of Meerabux and his brother Ismail were mentioned as the southern boundary of the plot of sold. Both the courts below have concurrently found that the appellants had failed to establish that the entire plot had been gifted by Usman father of Alladeen during his life time in favour of his daughter Mst. Jahura and this finding of fact cannot be questioned in second appeal. It may be mentioned that when cross-examined Meerabux was not able to state as to in which year. Usman had made the alleged gift of plot in favour of his wife Mst. Jahura. Thus the case set up by the appellants in their written statement that Usman had made the gift of the entire land in favour of Mst. Jahura totally fails.
9. However, the learned Counsel for the appellants contended that in the rejoinder filed by the plaintiff on August 4, 1968, the plaintiff had admitted that the disputed plot and the Kotadies belonged to Usman. On the death of Usman, it was not Alladeen alone who could succeed to the former. Usman had, besides Alladeen left a daughter Mst. Jahura who was married to Meerabux defendant No. 1. According to Mohammedan Law of inheritance on the death of the father who is survived by a son and a daughter, the daughter gets 1/3rd share & the remaining 2/3rd goes to the son. It was pointed out that the plaintiff, in Para No. 1 of the Additional pleas taken by him in his rejoinder dated August 4, 1968 had admitted unambiguously that Mst. Jahura was daughter of Usman. All that the plaintiff did was that Usman had not made any gift of the plot in favour of Mst. Jahura. In reply to the above contention raised by the learned Counsel for the appellants, Mr. Lekh Raj Mehta appearing for the plaintiff-respondent No. 1 contended that in the written statement, the defendants did not claim their right to the plot in question on the basis of heirship of Mst. Jahura to Usman. Their entire case in the written statement was that the suit plot of land and the Kotadies belonged to Usman who had purchased the same and Usman after some time gifted the entire property in favour of his daughter Mst. Jahura to the Complete exclusion of Alladeen. The only case pleaded by Meerabux in the alternative was that his wife Mst. Jahura and he himself had acquired title by adverse possession over the disputed plot.
10. It is true that the entire case pleaded by Meerabux in his written Statement in answer to the plaintiff’s suit was that the plots marked v c l n and v c l n had been purchased by Usman father of Alladeen defendant No. 6 and that soon after the purchase Usman made gift of the entire plot in favour of Mst. Jahura wife of Meerabux and daughter of Usman. Meerabux asserted that he was in possession of the entire plot since the time of the gift. In the alternative, Meerabux pleaded to the plaintiff’s case that he and his wife had acquired title by adverse possession to the entire plot. It is also true that according to the Mohammedan Law of Inheritance, if a father dies survived by a son and a daughter the daughter will get 1/3rd share & the remaining 2/3rd will go to the son. However, the First Appellate Court was right in holding that this plea raised on behalf of Meerabux involved a mixed question of law and fact and not merely a pure question of law. The question of fact intermixed with the question of law, was, whether Mst. Jahura had survived Usman or had died during the life time of Usman. Had Meerabux taken this plea in the written statement that Mst. Jahura was heir of Usman as she survived him, the plaintiff would have been in a position to assert, if it was true, that Mst. Jahura died during the life time of her father Usman and did not survive him. In the absence of any plea being taken by Meerabux that Mst. Jahrua, in the alternative had got 1/3rd share in the property left by Usman the plaintiff is undoubtedly prejudice because in the absence of any pleading to that effect in the written statement, he is deprived of his right to meet such a plea. Even the date of death of Mst. Jahura has not been mentioned by Meerabux in the written statement. The only plea taken by Meerabux in the alternative in the written statement was that of adverse possession of Mst. Jahura and himself over the disputed plot. On the question of adverse possession, issue No. 7 was framed by the trial court and both the courts below have found as a fact that Alladeen son of Usman had usufructuarily mortgaged the plot v c l n and ‘kotadies’ in favour of the plaintiff on February 7, 1961 by a registered mortgage-deed Ex. 2 and in lieu of payment of interest, Alladeen had taken the plot and the Kotadies on rent at Rs. 20/-per month from the plaintiff under a rent note Ex. 3. It was thus clear that it was Alladeen was in possession on behalf of the plaintiff over the plot v c l n and the 8 Kotadies till the date he sold the plot v c l n and the Kotadies on the plaintiff on September 23, 1956 by a registered sale-deed Ex. 10 and that it was only after that that Meerabux ousted the plaintiff from the disputed plot and on September 28, 1966, Both the courts have found that neither Mst. Jahura nor Meerabux were in possession of plot marked v c l n and the 8 Kotadies upto the time Alladeen had sold the same to the plaintiff and that Alladeen or sub-tenants of Alladeen were in possession of the Kotadies and Alladeen himself had the possession by virtue of the rent note Ex. 3 executed by him in plaintiffs’ favour. It was thus rightly held that Mst. Jahura and for that matter her husband Meerabux had not acquired title by adverse possession in relation to the plot marked v c l n and the 8 Kotadies.
11. It is well-settled that rights of the parties are determined on the basis of the case set up by the parties and it is not the function of the courts to make out a case for any party and determine the rights on the basis of a case not set up.
12. It may be mentioned that one Shah Nemichand had obtained a decree against Meerabux and in execution of that decree, Nemichand got attached the eight Kotadies and the disputed plot in execution of his decree on May 18, 1962 representing that the same belonged to Meerabux. The plaintiff thereupon filed an objection petition Ex. 4 mentioning therein that the property attached belonged to Alladeen defendant No. 6 who had mortgaged the same with possession to the plaintiff on February 7, 1961. Meerabux was party to this objection. In that objection case, the decree-holder Shah Nemichand and Meerabux had taken a plea that Usman had gifted this property to Meerabux. It is worthy to be noted that it was not contended either by the decree-holder or Meerabux in that objection case that Usman had gifted the property to Mst. Jahura. The Civil Judge Balotra before whom this objection case was pending had appointed a Commissioner to enquire and report about possession over the disputed plot and Kotadies. Shri Madan Lal Advocate was appointed as Commissioner and he gave report Ex. 7 which has been duly proved by the plaintiff by examining Madan Lal as PW 7. It is clear from this report that the Commissioner found Alladeen or his tenants in possession of Kotadies and the plot on May 11, 1963 when the Commissioner inspected the site and made the enquiry. The Civil Judge Balotra by his order Ex. 6 dated July 19, 1963 allowed the objection petition filed by the plaintiff and released the disputed plot and the Kotadies from the attachment.
13. The plaintiff’s version is very correct. The true position was that the entire plot v c l n and v c l n had been purchased in the names of Usman and his son Alladeen on June 7, 1937 under the sale-deed Ex. 1. After the death of his father Usman, Alladeen had made a registered gift of the portion of this plot i.e. of the portion marked v c l n on August 1, 1960 in favour of his sister’s son Deen Mohammed. Deen Mohammed was son of Jahura deceased from Meerabux. Subsequently, Alladeen had filed a suit C.S. No. 77 of 1964 against Deen Mohammed for canellation of the gift deed dated August 1, 1960 in the court of Munsif Barmar. However, that suit was got returned by Alladeen on January 15, 1965 for presentation in the proper court and thereafter he did not present the suit to the proper court. It is clear, therefore, that Alladeen had gifted the portion of the plot marked v c l n in favour of Deen Mohd. son of Meerabux on August 1, 1960. The plaintiff is not claiming the land marked v c l n. He is claiming declaration and possession with respect to plot of land marked v c l n and over 8 Kotadies on which Meerabux trespassed few days after Alladeen had sold the same in favour of the plaintiff.
14. Resultantly, both the courts below were right in holding that the disputed plot belonged to the plaintiff and that, the plaintiff was in its possession through Alladeen upto 27-9-1966, and that appellants trespassed over it on 28-9-1966. They were also right in holding that the plaintiff had also purchased five Patties (pats) and 1300 Khandas. The courts were also correct in holding that the defendants have failed to establish that Usman had made a gift in relation to the disputed plot in favour of Mst. Jahura during his life time. The plea of adverse possession raised was also rightly negatived.
15. Consequently, this second appeal has no merit in it and it is here by dismissed with costs to the plaintiff-respondent No. 1.