Jaithoon Bi and Ors Vs.
P.A. Kannisamy Reddiar and Ors. Etc [2008] INSC 426 (12 March 2008)
S.B. Sinha & P.P. Naolekar
O R D E R Civil Appeal
Nos. 2038-41 of 2008
[Arising out of SLP(C)
Nos.8593-8596/2004] Delay condoned.
Leave granted.
Heard the learned counsel appearing on behalf of the appellants. Learned
counsel for the appellants very fairly states that his client is interested
only in the 8 cents out of 48 cents of land in Survey No.224 qua the 1st
respondent in the civil appeal arising out of S.L.P.(C) No.8593/2004 and not in
other matters.
Kannisamy Reddiar - the first respondent herein filed a suit, which was
marked as O.S. Nos. 711/82, against one Sheikh Mehboob and others, claiming
title in respect of the land in question. Another suit was filed by Sheikh
Mehboob which was marked as O.S. No. 146/86 wherein the said Kannisamy Reddiar,
the first respondent herein was the defendant.
Although we are not directly concerned but keeping in view the stand taken
by the learned counsel appearing on behalf of the appellants, we may notice
that the said Sheikh Mehboob also filed a suit against one Mariam Bi and
another. The appeal against the judgment passed therein, however, does not
survive as the appellant has accepted the judgment of the First Appellate Court
deciding the same in favour of Mariam Bi.
Appellants claimed title through the said Sheikh Mehboob who is the son of
John Bi.
The properties in suit is said to be belonging to Moongali Ammen Temple
Devasthanam. It filed a suit against John Bi, mother of Sheikh Mehboob and four
others, praying for eviction from the suit land. A compromise was entered into
therein in terms whereof the defendants became entitled to continue to possess
the suit land on payment of Rs. 336 to the Devasthanam. Allegedly, it was John
Bi alone who paid the entire amount and it was on that basis that she, and
through her Sheikh Mehboob, had been claiming the ownership of the entire 48
cents of the land.
The learned Trial Judge noticed that Respondent No.1 purchased 8 cents of
land from one Wahab Sahib by a Deed of Sale dated 29.12.1960, who in turn had
purchased the same from one Sheikh Ameer Sahib on or about 1.2.1956.
The learned Trial Judge, however, found that the said Deeds of Sale do not
appear to have any bearing on the suit property. The said finding was affirmed
by the High Court. However, the High Court, in our opinion, rightly came to the
conclusion that even in the said O.S. No.43/62 not only the 48 cents of land
but the claim of the Devasthanam Temple was in respect of 10 acres of land.
However, the said O.S. No.
43/62 was confined to 48 cents of land which had been in possession of John
Bi, Ameer Sahib and three others.
There appears to be some demise of the temple properties by the trustees in
favour of various persons. The said lessees started asserting titles in
thereabout.
However, even if the claim of the lessees that they had acquired title by
adverse possession had not found favour by the Trial Judge, evidently, in view
of the fact that John Bi alone had signed the compromise and not others, the
only course open to her was to file an Execution Application for execution of
the said decree.
The High Court noticed that even if the title of the temple had been
accepted, having regard to the fact that the First Appellate Court, as noticed
hereinbefore, found that Mariam Bi was entitled to 12 cents of land because her
predecessor was a party to the previous suit in O.S. No. 43/62. But despite the
fact that the first respondent and his vendor also claimed independent title,
his suit was dismissed.
The High Court, therefore, in our opinion rightly held:
No doubt if Jan Bi has taken such a stand at the time of passing of the
decree in O.S. No. 43 of 1962 she could have stepped into the shoes of the
plaintiff and executed the decree by recovering remaining 28 cents from other
defendants in the suit. She could have also immediately filed a suit for
recovery of balance of 28 cents from other defendants in the suit of it was
open to her to insist upon the contribution for the payment made by her to the
decree holder, namely the temple from other defendants. But, she has not chosen
to do any of these things. Therefore, the result is John Bi/s possession for 20
cents is legitimized by virtue of the compromise decree and so also the possession
of other defendants in the suit. Therefore, Jan Bi could not claim any extent
other than 20 cents claimed by her in the suit because she has not recovered
possession from other defendants.
Other defendants continued to be in possession and the temple never asserted
its titled in respect of other defendants also and it has recognized and
legitimized the possession of other defendants by virtue of the compromise
decree. Therefore, it is rightly pointed out by the appellants that Jab Bi has
become entitled only to 20 cents out of 48 cents and therefore, the remaining
extent continued to be in possession of other defendants under whom Kanniswamy
Reddiar and Mariam Bi have claimed. Apart from the fact that Mariam Bi's
title in respect of 12 cents of land stands accepted now, we do not see any
reason as to why the same yardstick should not have been applied in the case of
the first respondent.
We may also place on record that on a query made by us, learned counsel
categorically stated that since 1962, John B. or for that matter Sheikh Mehboob
had not taken any steps to take possession of the properties in question from
respondent No.1 or his vendor.
For the reasons aforementioned, we do not find any merit in this appeal
which is dismissed. However, since nobody has appeared on behalf of the
respondents, there shall be no order as to costs.
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