{"id":188846,"date":"2005-06-20T00:00:00","date_gmt":"2005-06-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pathamuthu-joharan-vs-syed-ibrahim-died-on-20-june-2005"},"modified":"2014-03-19T21:12:53","modified_gmt":"2014-03-19T15:42:53","slug":"pathamuthu-joharan-vs-syed-ibrahim-died-on-20-june-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pathamuthu-joharan-vs-syed-ibrahim-died-on-20-june-2005","title":{"rendered":"Pathamuthu Joharan vs Syed Ibrahim (Died) on 20 June, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Pathamuthu Joharan vs Syed Ibrahim (Died) on 20 June, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 20\/06\/2005 \n\nCoram \n\nThe Honourable Mr. Justice T.V. MASILAMANI   \n\nS.A. No.1410 of 1993 \n\nPathamuthu Joharan                                             .. Appellant\n\n-Vs-\n\n1. Syed Ibrahim (died)\n2. Habuta Nachiar\n3. Mahaboola Nisa \n4. Kamarunnisa \n5. Bokaruddin\n6. Akber Ali                                                 .. Respondents\n\n\n        Second Appeal against the judgment and decree dated 10.2.1993 made  in\nA.S.No.213  of 1991 on the file of the District Judge, Nagapattinam confirming\nthe judgment and decree dated 9.5.1991 in O.S.No.56 of 198 8 on  the  file  of\nthe Subordinate Judge, Nagapattinam. \n\n!For Appellant :  Mrs.G.  Devi\n\n^For Respondents :  Mr.K.Chandramouli, S.C. \n                For Mr.A.Muthukumar.\n\n\n:JUDGMENT   \n<\/pre>\n
        The defendant before the court below is the appellant.\n<\/p>\n
        2.   The  respondent  filed the suit for recovery of possession of the
\nsuit property from the appellant and for future mesne profits.  The  appellant
\nresisted the  suit  by  filing  written  statement.    The  trial court having
\nanalysed the evidence both oral and documentary adduced  on  either  side  and
\nupon  hearing  the  arguments of both sides decreed the suit as prayed for and
\ndirected a separate enquiry regarding future mesne profits under Order 20 Rule
\n12 C.P.C.\n<\/p>\n
        3.  Aggrieved by the judgment and decree passed by  the  trial  court,
\nthe  appellant preferred the appeal before the District Judge, Nagapattinam in
\nA.S.No.213 of 1991.  The learned District Judge after considering the recorded
\nevidence and the arguments of both sides confirmed  the  judgment  and  decree
\npassed by  the  trial court and dismissed the appeal.  Hence, the above Second
\nAppeal.\n<\/p>\n
        4.  The averments in the plaint filed by the respondent\/plaintiff  may
\nbe briefly stated as follows:-\n<\/p>\n
                (a)  The common ancestor of the plaintiff and the defendant is
\nSikkandar Rowthar.  The plaintiff is the grand son of the  Sikkandar  Rowthar.
\nThe  defendant is the grand daughter of the said Sikkandar Rowthar through his
\nanother son Mohamed Hussain.  Sikkandar Rowther  executed  a  settlement  deed
\ndated  8.6.1935  in respect of all his properties in favour of his sons and he
\nretained the right of enjoyment over the properties settled thereunder  during
\nhis life time.  ‘A’ schedule property in the settlement deed had been given to
\nMohamed  Sultan  to  be  taken  and enjoyed by him absolutely and ‘B’ schedule<\/p>\n
property had been given to Mohamed Hussain absolutely.  ‘C’ and  ‘D’  schedule
\nproperties  in the settlement deed had been given to his 3rd son Mohamed Kasim
\nand his wife Fathima Bibi.\n<\/p>\n
                (b) The suit property is a  portion  of  the  house  given  to
\nMohamed Sultan under the said settlement deed and the remaining portion of the
\nhouse was given to Mohammed Hussain.  After the death of Sikkandar Rowthar his
\nsons,  namely,  Mohamed  Sultan  and  Mohamed Hussain became entitled to their
\nrespective portions in the house as per the settlement deed.  The property tax
\nwas paid by both of them in respect of the house property.\n<\/p>\n
                (c) After the death of  Mohamed  Sultan,  all  his  properties
\nincluding  the  suit  property  had devolved upon his 2 wives and 3 sons and a
\ndaughter by his second wife in accordance with the  Muslim  law.    After  the
\ndeath  of  one of the widows, Raguman Bibi, her share also devolved upon her 3
\nsons and a daughter.  The plaintiff obtained the release deed dated  23.3.1983
\nfrom  his  two brothers, Mohamed Arif and Mohamed Ismail and sister Noorjahan.
\nUnder sale deed dated 31.1.1984 having purchased the undivided  share  of  his
\nstep  mother  Jamina Bibi also, the plaintiff has become the absolute owner of
\nthe suit property.\n<\/p>\n
        (d) The defendant obtained release deed from her  mother  Ajitha  Bibi
\nand  sisters  Urunnisa  and  Noorjahan  by  means  of  a registered deed dated
\n29.12.1983.  The defendant who is the grand daughter of Sikkandar Rowthar  has
\nno manner  of  right  or title to any portion in the suit property.  Her claim
\nthat her father Mohamed Hussain has prescribed title by adverse possession has
\nno legal basis and therefore the plaintiff is entitled to  recover  possession
\nof the suit property and to receive future mesne profits.\n<\/p>\n
        5.   The  averments  in  the written statement filed by the appellant\/
\ndefendant are briefly as follows:-\n<\/p>\n
                The plaintiff is not the son of Mohamed Sultan who had married
\nonly one wife and therefore it is false to contend that Mohamed Sultan married
\nthe mother of the plaintiff also.    Sikkandar  Rowthar  had  3  sons  Mohamed
\nSulthan, Mohamed  Hussain and Mohamed Kasim.  The plaintiff has suppressed the
\nexistence of the son Mohamed Kasim.  Similarly, Syed Ebrahim and Mohamed  Arif
\nand  Mohamed Ismail and Noorjahan are not sons and daughter of Mohamed Sultan.
\nTherefore the plaintiff is not the grand son of Sikkandar Rowthar as  alleged.
\nOn  the  date  of  the  settlement  deed executed by Sikkandar Rowthar (i.e.,)
\n8.6.1935, Mohamed Sultan was living in Rangoon and therefore he did not accept
\nthe settlement and obtained possession of the properties thereunder.   Mohamed
\nSultan had never enjoyed any of the properties covered by the settlement deed.
\nIn fact, the defendant, daughter of Mohamed Hussain has been in possession and
\nenjoyment of  the  suit property.  Further she has also perfected title to the
\nsuit property by adverse possession.  The suit is not valued properly for  the
\npurpose of court-fee.\n<\/p>\n
        6.   On  the  above pleadings, the following issues were framed by the
\ntrial court for trial:-\n<\/p>\n
        (1) Whether the plaintiff is entitled to the  relief  of  recovery  of
\npossession of the suit property?\n<\/p>\n
        (2) To what relief, the plaintiff is entitled to?\n<\/p>\n
        7.   In  the  appeal,  the  learned District Judge had also framed the
\nfollowing issues for consideration:-\n<\/p>\n
        (1) Whether Mohamed Sultan had married two wives  as  claimed  in  the
\nplaint?\n<\/p>\n
        (2)  If so, whether the plaintiff is the son of Mohamed Sultan through
\nhis second wife?\n<\/p>\n
        (3) Whether the defendant has perfected title to the suit property  by
\nadverse possession?\n<\/p>\n
        8.   Having perused the recorded evidence and upon hearing both sides,
\nthe  courts  below  have  rendered  concurrent  judgments  holding  that   the
\nrespondent  is  entitled  to  the suit property, that he is the son of Mohamed
\nSultan born through his second wife, that  the  appellant  has  not  perfected
\ntitle  to  the  suit  property  by  adverse  possession and that therefore the
\nrespondent is entitled to the reliefs as prayed for.\n<\/p>\n
        9.  Heard Mrs.G.Devi, learned counsel  for  the  appellant  and  Mr.K.
\nChandramouli, learned senior counsel for the respondents.\n<\/p>\n
        10.   The  learned counsel for the appellant\/defendant has argued that
\nthe courts below failed to consider the  document  under  Ex.A-2  whereby  the
\nhouse  was  divided into two portions, one settled in favour of Mohamed Sultan
\nand another in favour of Mohamed Kasim and Mohamed Sultan had not accepted the
\nsettlement and taken possession of the property.  Therefore the settlement  in
\nfavour  of  Mohamed  Sultan  was not acted upon and hence became invalid under
\nlaw.  The courts below failed to see that Mohamed Sultan  had  only  one  wife
\nJamina Bibi  and he did not marry Raguman Bibi as his second wife.  Therefore,
\nthe courts below ought to have held that the marriage of the  second  wife  to
\nMohamed Sultan  has not been proved in accordance with law.  Similarly, courts
\nbelow failed to appreciate the evidence to prove the defendant’s title to  the
\nsuit property by adverse possession.\n<\/p>\n
        11.   In  the above circumstances, the following substantial questions
\nof law were formulated by this court on 3.11.1993 for consideration:-\n<\/p>\n
        (1) Whether the courts below have correctly and  properly  interpreted
\nExs.A-3, A-4 and A-5?\n<\/p>\n
        (2)  Whether  the  courts below are justified in rejecting the plea of
\nadverse possession by the defendant and her predecessors-in-title?\n<\/p>\n
        (3) Whether the  courts  below  are  justified  in  finding  that  the
\nsettlement deed Ex.A-2 executed by the grand father of the defendant is valid?\n<\/p>\n
        12.   The  parties to this appeal may be referred to hereunder as they
\nwere arrayed before the trial court.  Since rendering a finding with reference
\nto one question is likely to  overlap  the  other  one,  all  the  substantial
\nquestions are discussed together.\n<\/p>\n
        13.  The facts which are not in controversy may be set out as under so
\nas  to analyse the recorded evidence and the arguments advanced on either side
\nin this appeal.  The suit property is a building which originally belonged  to
\nSikkandar Rowthar.  He executed the registered Hiba deed dated 8.6.1935 Ex.A-2
\nin favour of his wife Fathima Bibi and 3 sons, Mohamed Sultan, Mohamed Hussain
\nand  Mohamed  Kasim  and  the  portion described in ‘A’ schedule in Ex.A-2 was
\ngiven to Mohamed Sultan, the portion ‘B’  schedule  to  Mohamed  Hussain,  the
\nportion  ‘C’  schedule  to  Mohamed  Kasim  and the portion in ‘D’ schedule to
\nFathima Bibi.  After the death of Sikkandar Rowthar and  Fathima  Bibi,  their
\nheirs became  entitled  to the said properties.  Mohamed Sultan married Jamina
\nBibi and they had no issues.  Mohamed Hussain married Ajitha Bibi and they had
\nbegotten 3 daughters, namely Pathamuthu Joharan, Urunnisa and Noorjahan.   The
\nappellant\/defendant is the said Pathamuthu Joharan.\n<\/p>\n
        14.   The  learned  counsel for the appellant has argued at the outset
\nthat the Hiba deed under Ex.A-2 executed by Sikkandar Rowthar was not accepted
\nby Mohamed Sultan, who was residing in Rangoon at that  time  and  that  since
\nMohamed  Hussain,  father  of the defendant alone was in India residing in the
\nsuit property, the plain tiff claiming under Mohamed Sultan could not have had
\nany title to the suit property.  Similarly, she  would  contend  that  Mohamed
\nSultan  never  got  into  the possession of the suit property either under the
\nsettlement deed Ex.A-2 or by any other process known to law.\n<\/p>\n
        15.  In answer to such  contention,  Mr.Chandramouli,  learned  senior
\ncounsel  appearing  for  the  respondents  2 to 7, legal heirs of the deceased
\nfirst respondent\/sole plaintiff would draw the  attention  of  this  court  to
\nExs.B-16  to  B-44  documents  to show that the gift under Ex.A-2 was not only
\naccepted by Mohamed Sultan, but he was also in possession and enjoyment of his
\nportion in the suit property pursuant to  the  gift  deed  under  Ex.A-2.    A
\ncareful  scrutiny of Ex.B-16 to B-44 would indicate clearly that the house tax
\nwas paid by Mohamed Sultan for himself and on behalf  of  other  donees  under
\nEx.A-2.   Therefore  this Court is of the considered view that since the house
\ntax was assessed in the name of Mohamed Sulthan (vide) Ex.B-16  to  B-44  from
\n1963  to 198 3, it is too late in a day to contend that Mohamed Sultan had not
\naccepted the gift in his favour as per Ex.A-2.   In  this  context,  both  the
\ncourts  below have analysed the evidence on this aspect of the matter and came
\nto the right conclusion that all the 3 sons of the deceased Sikkandar  Rowthar
\naccepted  the  gift  and  acted upon the settlement deed under Ex.A-2 and that
\nthey were in possession and enjoyment of the respective  shares  in  the  suit
\nproperty as  per  the  gift  deed.   Hence, this court is unable to accept the
\nfirst contention put forth by the learned counsel for the appellant.\n<\/p>\n
        16.  The next contention urged in the argument of the learned  counsel
\nfor  the  appellant  is  that  the  plaintiff (since deceased) was not born to
\nMohamed Sultan through his second wife as alleged and that therefore he  would
\nnot  have  succeeded  to  any  portion  in  the suit property as a heir of the
\ndeceased Mohamed Sultan.  According to the plaintiff, Mohamed  Sultan  married
\nJamina Bibi as his first wife and since they had no issues, he married Raguman
\nBibi  as  his  second  wife  and  out of their wedlock, the plaintiff, 3 other
\nchildren namely Mohamed Arif, Mohamed Ismail and Noorjahan were born to  them.
\nIn  support  of  such  contention Exs.A-2 to A-4, A-5, A-8, A-15 and A-16 have
\nbeen pressed into service in the evidence of P.W.1, the plaintiff.\n<\/p>\n
        17.  Ex.A-4 is the registered sale deed dated  31.1.1984  executed  by
\nJamila  Bibi,  first  wife  of  Mohamed  Sultan  in favour of the plaintiff in
\nrespect of  her  undivided  1\/16th  share  in  the  suit  property  and  other
\nproperties  and the relevant recitals relied on by the learned counsel for the
\nplaintiff in the said document are as follows:-\n<\/p>\n
“,jdoapy; fz;l tpgug;goa[s;s brhj;J fhyk; brd;w vdJ  fztUk;  vdJ  je;  ija[khd
\nA.S.Kfk;kJ  Ry;j;jhd;  mtu;fSf;F  mtuJ  je;ijahu; rpf;fe;ju; uht[j;juhy; brd;w
\n8.6.1935 njjpapy; vGjpitf;fg;gl;Ls;s brl;oy;bkz;Lg;goa[k; A.S.Kfk;kJ Ry;j;jhd;
\nmtu;fshy; brd;w 20.8.1956  njjp  mg;Jy;  cwkPJ  uht[jjuplkpUe;J  thq;fpa  fpua
\nrhrdg;goa[k;  fpilj;J  vd;DlDk;  mtu;  ,uz;lhk;  jhu kidtp ucwpkhd; gptpa[lDk;
\nru;tRje;jpu ghj;jpaq;fSld; Mz;L mDgtpj;Jte;J \\  A.S.Kfk;kJ  Ry;j;jhd;  24.1.78
\nnjjpapy; fhykhfptpl;lhu;.”\n<\/p>\n
        18.  The above recitals in the sale deed executed by the first wife of
\nMohamed  Sultan  have  proved  categorically  that  Mohamed Sultan married two
\nwives, namely, Jamina Bibi and Raguman Bibi and that the plaintiff is the  son
\nof Mohamed  Sultan  born through his second wife.  Similarly, Ex.A-16 marriage
\ninvitation dated 14.2.1956 discloses that Mohamed Sultan being the  father  of
\nthe  plaintiff celebrated the plaintiff’s marriage and therefore it is evident
\nthat the acknowledgement of both Mohamed Sultan and his wife Jamina Bibi  that
\nthe  plaintiff  is  the  son  of  the  former  through  his  second wife would
\nvouch-safe the paternity of the plaintiff now under question.\n<\/p>\n
        19.  In this context, learned senior counsel appearing for respondents
\n2 to 6 has drawn the attention of this court to the provisions  of  law  under
\nSections  226  and  227  of the Muslim Law by THABJI (4th Edition at page 208)
\nwith reference to proof of paternity and  presumption  of  acknowledgement  of
\nparentage  respectively  in support of his further argument that the documents
\nante litum mortem referred to above  would  establish  the  paternity  of  the
\nplaintiff as well as the presumption of acknowledgement arising therefrom.\n<\/p>\n
        20.   The  above  principles of law under Sections 226 and 227 read as
\nfollows:-\n<\/p>\n
        “226.  Proof of paternity:  Statements  by  a  member  of  the  family
\ntouching  the  sonship or heirship of a person are good evidence of the family
\nreport concerning him.\n<\/p>\n
        227.  Adoption not known to Muslim law:  If a man has  openly  treated
\nanother  as his child, it may be presumed that the former has acknowledged the
\nparentage of the latter.”\n<\/p>\n
        21.  In view of the above provisions  of  law  in  the  light  of  the
\ndocumentary  evidence  under  Exs.A-4,  A-15  and  A-16,  the paternity of the
\nplaintiff that he was born to Mohamed Sultan through his second  wife  Raguman
\nBibi has  been  amply  established.    Similarly,  the acknowledgement of both
\nMohamed Sultan and his first wife Jamina Bibi as per Exs.A-4,  A-15  and  A-16
\nalso lend  support  to  the proof of paternity.  As has been rightly argued by
\nthe learned senior counsel for the respondents, in view of the ratio laid down
\nin the decision HOHAMMAD SADIQ v.  MOHAMMAD HASSAN (AIR (30) 1943 LAHORE 225),
\nthe acknowledgement of Mohamed Sultan that  the  plaintiff  is  his  son  born
\nthrough  the  second  wife  has  to  be  held  as proved until the contrary is
\nestablished by the defendant adducing rebuttal evidence  and  the  ratio  laid
\ndown therein reads as follows:\n<\/p>\n
        “The  same  subject  has  been  dealt with in para 85 of Wilson’s Ango
\nMahomedan Law where it is laid down that if a man has acknowledged another  as
\nhis  legitimate child, the presumption of paternity arising therefrom can only
\nbe rebutted by (a) disclaimer on the part of the person acknowledged; (b) such
\nproximity of age, or seniority  of  the  acknowledgee,  as  would  render  the
\nalleged  relationship  physically  impossible; (c) proof that the acknowledgee
\ncould not possibly have been the lawful wife of the acknowledger at  any  time
\nwhen the   acknowledgee  could  have  been  begotten.    None  of  these  four
\nimpediments has either been alleged or established in the present case.”\n<\/p>\n
        22.  In this case also, as per the ratio referred supra, the defendant
\nhas not alleged or established any of the impediments  narrated  by  the  said
\ndecision.   Therefore this Court is of the considered view that the contention
\nput forth on the side of the appellant in this respect has to be  rejected  as
\nnot sustainable.   It follows necessarily that the finding of fact rendered by
\nboth the courts below on this aspect of the matter has to be affirmed.\n<\/p>\n
        23.  The last contention of the learned counsel for the  appellant  is
\nthat  by adverse possession, the defendant has perfected her title to the suit
\nproperty.  In this regard, as has been rightly argued by  the  learned  senior
\ncounsel  for  the  plaintiff,  on  her  own  showing  as per Exs.B-16 to B-44,
\nreceipts for payment of house tax issued  in  favour  of  Mohamed  Sultan  and
\nothers from 1963 to 1983, such contention of the defendant cannot stand even a
\nmoment’s  scrutiny for the simple reason that Mohamed Sultan was in possession
\nof the property within 12 years prior to suit  and  that  the  suit  was  laid
\nwithin 5 years from the date of last receipt under Ex.B-44 issued on 30.8.1983
\nin favour of him.\n<\/p>\n
        24.   Hence,  the  learned  senior  counsel  for  the plaintiff placed
\nreliance on the decision rendered by this Court NAGARAJAN v.    RAJAMANI  IYER<\/a>
\n(1999 (I)  C.T.C.   428) wherein the statement of law on this subject has been
\nreiterated as under.  The learned Single Judge  having  considered  catena  of
\ndecisions  rendered  by  this  Court, other High Courts and the Apex Court and
\nquoted the principle of adverse possession as laid down by the Apex  Court  in
\nDR.MAHESH CHAND SHARMA  v.   RAJKUMARI SHARMA (AIR 1996 S.C.  569) which reads
\nas follows:-\n<\/p>\n
“A person pleading adverse possession has no equities in his favour.  Since he
\nis trying to defeat the rights of the true owner, it is  for  him  to  clearly
\nplead  and  establish  all  the  facts  necessary  to  establish  his  adverse
\npossession.”\n<\/p>\n
        25.  If the evidence let in by the defendant is analysed in the  light
\nof  the  above  principle  of  law cited above, there is no doubt that she has
\nneither pleaded specifically  in  her  written  statement  all  the  necessary
\naverments to constitute the plea of adverse possession nor let in any evidence
\nworth mentioning to establish such plea.\n<\/p>\n
        26.   But,  on the contrary, the documentary evidence Exs.B-16 to B-44
\nas referred to above are not only against the defendant  on  this  aspect  but
\nwould also establish that the plaintiff’s predecessor-intitle was in effective
\npossession  and  enjoyment  of his share in the suit property for more than 13
\nyears till his death.  Similarly, the other evidence let in by  the  plaintiff
\nhas  categorically  established  his  possession  and  enjoyment  of  the suit
\nproperty along with other heirs till he acquired absolute right and  title  to
\nthe  same  by virtue of registered documents under Exs.A-3 and A-4, registered
\nrelease deed dated  23.3.1983  and  sale  deed  dated  31.1.1984  respectively
\nexecuted by the other heirs of Sikkandar Rowthar in respect of their undivided
\nshare in the suit property.\n<\/p>\n
        27.   For the aforesaid reasons, this Court finds no illegality in the
\njudgments and decrees rendered by both the  courts  below  and  therefore  the
\nSecond Appeal  deserves no merit and is accordingly dismissed.  However, there
\nshall be no order as to costs.\n<\/p>\n
Index:  Yes
\nWebsite:  Yes
\ndpp <\/p>\n
To<\/p>\n
1.  The District Judge, Nagapattinam.\n<\/p>\n
2.  The Subordinate Judge, Nagapattinam.\n<\/p>\n
3.  The Section Officer, V.R.Section, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Pathamuthu Joharan vs Syed Ibrahim (Died) on 20 June, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20\/06\/2005 Coram The Honourable Mr. Justice T.V. MASILAMANI S.A. No.1410 of 1993 Pathamuthu Joharan .. Appellant -Vs- 1. Syed Ibrahim (died) 2. Habuta Nachiar 3. Mahaboola Nisa 4. Kamarunnisa 5. Bokaruddin 6. Akber […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-188846","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPathamuthu Joharan vs Syed Ibrahim (Died) on 20 June, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pathamuthu-joharan-vs-syed-ibrahim-died-on-20-june-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pathamuthu Joharan vs Syed Ibrahim (Died) on 20 June, 2005 - 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