MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS. versus SAYED AHMED MOHINDEEN AND ORS.

Citation: [1989] SUPP. 2 S.C.R. 519 · Decided: 15-12-1989 · Supreme Court of India · Bench: K.N. SINGH · Disposal: Disposed off

Judgment (excerpt)

( 
MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS. 
v. 
SA YEO AHMED MOHJNDEEN AND ORS. 
DECEMBER 15, 1989 
[K.N. SINGH AND N.M. KASLIWAL, JJ.] 
Indian Limitation Act, 1963: Adverse possession-Claim of-
Among co-heirs there must be evidence of an essertion of hostile title 
coupled with possession and enjoyment. 
Mohd. Zainulahdeen and Yasin Bi filed a suit for declaration that 
they were entitled to be in enjoyment and possession of Saint Syed 
Moosa Shah Khadiri Dargah in Madras for 27 days and to restrain the 
defendants from interfering with the plaintiffs' aforesaid right and 
management in the Dargah. 
A 
B 
c 
In reply the defendant No. I alleged that in the management of the 
D 
Dargah, female members had no right nor could they claim the right of 
Mujawar. It was also alleged that Fathima Bee through whom the 
Plaintiffs were claiming never enjoyed the right to Hundial collection of 
the Dargah and share in the Mujawarship and even if she had any right 
the same was tost as she did not claim any right till her death and 
therefore the Plaintiffs were also not entitled to any relief. Defendants 
E 
7, 8 and IO '!owever in their written statements admitted family 
members to lie sharer in.the income and management of the Dargah and 
they also admitted that they were paying such share to their sister 
Ahamadunnissa (10th defendant) in the Hundial collections and that the 
City Civil Court in snit No. 7518 of 1971 had also recognised the right of 
7th defendant Anser Bi to management of the Dargah for 9 days in a 
F 
year. Thus it was false to contend that the females were not entitled to 
claim management. 
The trial conrt decreed the suit of the Plaintiffs and held that they 
were entitled to manage the Dargah for 27 days in a year. Defendants 3 
to 6 and 12 to 19 filed appeals against the judgment of the trial court. 
G 
The City Civil Judge, howevr, affirmed the judgment of the Trial Court 
with some modificatios in the relief. 
Different sets of defendant filed two second appeals before the 
High Court and both were disposed of by the High Court by its judg-
ment and Order dated 17th November, 1981 whereby it reversed the 
H 
519 
520 
SUPREME COURT REPORTS 
[ 1989] Supp. 2 S.C.R. 
,judgments and decrees of the courts below and dismissed the suit med by 
A the Plaintiffs. 
This Court came to the conclusion that there is no controversy as 
regards the period of 27 days falling to the share of the Plaintiffs and the 
right of the ,females to the management of the Dargah according to 
B 
Muslim law. As regards the question of right of Fathima Bee having 
become barred by limitation by ouster and that as such the Plaintiffs too 
had lost that right, this Court, while setting aside the Judgment and 
Decree of the High Court and restoring that of the Trial Court as 
modified by the First Appellate Court, 
c 
D 
E 
F 
G 
HELD: It is wfll settled that where one co-heir pleads. adverse 
possession against another co-heir it is not enough to show that one out 
of them was in sole possession and enjoyment of the profits of the 
properties. The possession of one co-heir is considered in law as posses-
sion of all the co-heirs. The co-heir in possesion cannot render his 
possession adverse to the other co-heirs not in possession merely by any 
secret hostile animus on his own part in derogation of the other co-heirs 
title. [526G-H; 527A] 
It is a settled rule of law as between co-heirs that there must be 
evidence of open assertion of hostile title coupled with exclusive posses-
sion and enjoyment by one of them to the knowledge of tjie other so as to 
construe ouster. [527 Al 
The High Court in the instant case committed a serious error in 
reversing the finding of the lower Appellate Court and in taking a 
wrong approach in holding ouster on the basis of the judgment and 
decree given in Suit No. 116 of 1909 and on the ground that Fathima 
Bee had not made a demand or asked for her share of the hundial 
collections at any point of time till her death in 1957. [527G I 
P. Lakshmi v. L. Lakshmi Reddy, [1957] SCR 195, referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3160 
of 1983. · 
From the Judgment and Order dated 17 .11.1981 of the Madras 
High Court in Second Appeals Nos. 650 and 874 of 1981. 
V.M. Tarkunde, Ms. S. Khanna, Jagmohan Kha.nna and A.S. 
H 
Khan for the Appellants. 
MOHD. ZAINULABUDEEN v. S.A. MOHINDEEN [KASLIWAL, J.] 521 
T.S. Krishnamurthy, K. R. Choudhary, S.M. Amjad Nainar 
and S. Thananja

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