BASHA AND ORS. versus KHAIRUNNESSA BIVI AND ORS.

Citation: [1994] SUPP. 2 S.C.R. 709 · Decided: 17-08-1994 · Supreme Court of India · Bench: K. RAMASWAMY, S.C. AGRAWAL

Judgment (excerpt)

BASHA AND ORS. 
v. 
KHAIRUNNESSA BIVI AND ORS. 
AUGUST 17, 1994 
[K. RAMASWAMY AND S.C. AGRAWAL, .JJ.J 
Mohammedan Law-Ancesral property-Partition of-Oral gift of cer-
tain propert)- Plaintiff in unintemtpted possession and enjoynzent in asser-
tion to his own right as on owner under partition deed-He having posses.1·01)' 
A 
B 
title from 1952 till date of suit-Suit for declaration of title filed in 
C 
1968-Defendants tre;passed imo the property in January, 1968-f'lea of ad-
verse possessibn found fals!?-Decree granted is legal-Code of Civil proce-
dures, 1908. 
The 2nd plaintiff and his brother partitioned the properties by a 
partition deed dated December 4, 1952. Eversince they have been in pos-
D 
session and enjoyment of the property. The second plaintiff by an oral gift 
settled some property to the 1st plaintiff. When the appellants - defendants 
attempted to trespass into the land on January 6, 1968, the plaintiffs filed 
suit on July 4, 1968 for declaration of title and for recovery of possession, 
The Trial Court dismissed the suit. On appeal, the suit was decreed. The E 
High Court while upholding the decree dismissed the second appeal. 
In appeal by special leave it is contended that the property belongs 
to the appellants and the declaration of title and possession of the property 
was illegal. 
Dismissing the appeal, the Court 
F 
HELD : 1.1. In the instant case, in the partition deed, there is a clear 
recital of the properties which admittedly form part of ancestral property. 
There is also a clear recital that they separated the property and thereafter G 
the properties continued to be in possession and enjoyment of the respective 
parties. The suit was filed on July 4' 1968 by which date more than 16 years 
have passed and the plaintiff remained in uninterrupted possession and 
enjoyment is assertion to his own right as an owner having obtained the 
same under partition deed. Thereby he had possessory title right from 1952 
till date of the suit. The declaration oftitle thereby given is clearly legal. The H 
709 
710 
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R. 
A 
appellants trespassed into the property on January 6, 1968. The assertion 
that they have title by adverse possession is round raise .because the trespass 
was for the first time on January 6, 1968 and the suit was filed on July 4, 
1968. Under these circumstances, the decree granted by the Appellate Court 
and affirmed by the High Court is perfectly legal. (711 ·C·F] 
B 
CIVIL APPELLATE JURISDICTION : Ci\11 Appeal No. 397 of 
c 
D 
1979. 
From the Judgment and Order dated 9.8.78 of the Madras High 
Court in Second Appeal No. 1640 of 1977. 
G. Viswanatha Iyer, Dileep Tandon. and P.K. Pillai for the Appel· 
!ants. 
A.T.M. Sampath and S. Balaji for the Respondents 
The following Order of the Court was delivered : 
The appellants are the defendants. One Murthuza Hussain Sahib, the 
2nd Plaintiff and his brother Nawab Basha @ Syed Badrajjalami Hussain 
Sahib under Partition deed dated December 4, 1952, Ex.A-2 partitioned 
the properties and Item Nos. 1 and 2 of the ancestral property fell to the 
E share of Syed Murthuza Hussain Sahib. ihe Partition deed recites thus : 
"The share of properties allotted to the respective person, shall be 
enjoyed by them with absolute right. and freedoin thereto un· 
disputedly from this day onwards hereditarily from son to grand 
son and with powers of effecting gift sale and alienation one 
F 
individual shall have no right in respect of properties belonging to 
the other individual." 
Eversince they have been in possession and enjoyment of the property. 
The 2nd Plaintiff by an oral gift settled item no.l to the !st Plaintiff. When 
G the appellants attempted to trespass into the land on January 6, 1968, the 
respondents filed suit on July 4, 1968 for declaration of title and for 
recovery of possession. The Trial Court dismissed the suit. On appeal, the 
District Judge, Madurai in A.S. No. 358/1975 by its judgment and decree 
dated July 7, 1977 reversed the judgment and decree of the Trial Court 
and decreed the suit. The High Court in S.A. No. 1640/77 by judgment and 
H decree dated August 9, 1978 dismissed the second appeal. Thus this appeal 
BASHA 1·. K. BIVI 
711 
by special leave. 
It is contended by Mr. G. Viswanatha Iyer, learned senior counsel 
for the appellants that the property belongs to Be<lralam Sahib and the 
appellants, the 5th defendant and defendant Nos. 3 and 4 are the <laughters 
A 

Excerpt shown. Read the full judgment & AI analysis in Lexace.