(1.) THE defendants-appellants who are the transferees from the original defendants Nos. 1 to 4 have filed this appeal challenging the judgment and decree passed by the Civil Judge, Senior Division, Amravati decreeing the suit for possession and mesne profits filed by the plaintiffs-respondent Nos. 1 and 2. The plaintiffs claimed the suit property as mutawallis appointed by a wake deed dated 4-7-1946 alleged to have been executed by deceased Sheikh Mehatab who died on 15-11-1946. By this wake deed Sheikh Mehatab purported to create a wake in respect of the properties specified therein, and according to the recitals in the wake deed Sheikh Mahatab was himself to be the mutawalli during his lifetime. The plaintiffs alleged that after Sheikh Mehatab died on 15-11-1946 defendant No. 1 Sheikh Gulab forcibly took possession of the property and alienated a large part of it. Sheikh Mehatab was the son of Sheikh Bawru and he had a brother by name Sheikh Chandu. Sheikh Chandu, had a son called Sheikh Wazir. Both these persons died before Sheikh Mehatab. Sheikh Wazir left behind a son, Sheikh Gulab, defendant No. 1 and two daughters, Batulbi and Bismillabi, defendants nos. 2 and 3. Katunbi, defendant No. 4, is the wife of Sheikh Gulab. Now, according to the plaintiffs, these defendants had no right whatsoever to the property left behind by Sheikh Mahatab which was the subject of the wake and the defendant No. 1 along with the defendants Nos. 2, 3 and 4, had sold properties to the various defendants. The details of the alienations made by these defendants are as follows : -
(1) Suit land from survey Nos. 127 of Shendurjana is sold by defendants Nos. 1, 2 and 4 and mother of defendant No. 1 to defendant No. 5 on 31-1-1951 (Ex. D-1 ).
(2) Suit land 4 acres of the western side from survey No. 131/1 of Shendurjana is sold by defendant No. 1 to Nookhan Rangwaikhan on 13-4-1955 and Noorkhan sold it to defendant No. 6 Vyankatrao on 21-6-1957 (Exs. D-9 and D-8 ).
(3) Suit land measuring 1 acre 6 gunthas on the eastern side from survey No. 131/1 of Shendurjana was sold by defendants Nos. 1, 3, 4 and mother of defendant No. 1 to defendant 7 on 24-6-1953 and defendant No. 7 sold it to defendants Nos. 8 and 9 on 23-6-1954 (Exs. D-2 and D-3 ).
(4)Survey No. 71/1-A of Malkapur was sold by defendants nos. 1, 2, 3, 4 and mother of defendant No. 1 to defendant No. 10 on 29-3-1954 (Ex. D-4 ).
(5) Survey No. 72/2 of Malkapur was sold by defendants Nos. 1, 3, 4 and mother of defendant No. 1 to defendant no. 13 and Tulsiram on 31-3-1955 and thereafter Tulsiram sold his share from this land to defendant no. 13 (Ex. D-14 ).
(6) Suit land measuring 5 acres and 20 gunthas of the western side from survey No. 15 of Khedi was sold to defendant No. 14 on 17-2-1949 by defendants Nos. 1 and 2 and mother of defendant No. 1 (EX. D-13 ).
(7) Suit land measuring 1 acre 25 gunthas of the northern side from survey No. 65 of Khedi was sold to defendants Nos. 10, 11 and 12 on 29-3-1954 by defendants Nos. 1, 2, 3, 4 and mother of defendant No. 1. (Ex. D-7 ).
(8) Two acres of eastern side of survey No. 33 of Mol Wihir was sold to defendant No. 15 by defendant No. 1 on 22-2-1956.
(9) Three acres on the eastern side from survey no. 33 of Mol Wihir were sold by defendant No. 1 to defendants Nos. 16 and 17 on 21-4-1956.
(10) Three acres of the eastern side from survey No. 33 were sold by defendant No. 1 to defendant No. 18 on 21-4-1956.
(11) Fourteen acres 33 gunthas of the eastern side from survey No. 33 of Mol Wihir were sold by defendants Nos. 1 and 4 to defendants Nos. 19 to 23 on 11-4-1958 (EX. D-15 ).
(12) Tiled house measuring 37 x 48 cubits of Shendurjana (mentioned at survey No. 4 in Schedule B of the plaint) is sold by defendant No. 1 to defendant No. 24. The plaintiffs have also alleged that in addition to these alienation's, defendant No. 1 was in possession of three open plots and one house mentioned in Schedule B of the plaint and possession of this property was also claimed in the suit.
(2.) BEFORE the trial Court, the defendants Nos. 3, 4, 15 to 18 and 24 were ex parte. The other defendants filed their written statements in which the pleas raised by them were almost identical. The suit of the plaintiffs was contested firstly on the ground of denial of the execution of the wake deed because the transferees-defendants claimed to have no knowledge of the said wake. The case of the defendants was that the entire field property with regard to which the wake was purported to be created was joint property of Sheikh Mehatab and Sheikh Gulab and did not belong exclusively to deceased Sheikh Mehatab. According to them, defendant No. 1 Sheikh Gulab and deceased Sheikh Mehatab were staying jointly and the properties were treated as joint properties by both of them. Another defence to the suit was that the wake was illegal and void as it was obtained by undue influence by the plaintiffs taking advantage of the old age of Sheikh Mehatab and his failing health. It was also alleged that the alleged wake, if there be any, was created during the death-illness (Marzul-maut)of Sheikh Mehatab and it could, therefore be valid only to the extent of 1/3rd of the property of the deceased i. e. , his share in the joint property after payment of funeral expenses according to Mohammed Law. The defendants contended that Sheikh Mehatab had never acted upon the wake during his lifetime and the suit properties were in joint possession of Sheikh Gulab and Skeikh Mehatab at the time of the death of Sheikh Mehatab and it was, therefore denied that he (Sheikh Gulab) took forcible possession of the properties after Sheikh Mehatab's death. It was alleged that Sheikh Gulab had himself half share in the suit properties and the remaining half share of Sheikh Mehatab devolved on Sheikh Gulab by succession. According to the defendants, they were bona fide purchasers for value without notice of the wake deed and hence the transfers in their favour could not be set aside. It was also alleged that the plaintiffs could not claim any specific land as no particular part of any of the fields in dispute belonged to deceased Sheikh Mehatab because there was no partition made during his lifetime. An alternative claim made in respect of S. Nos. 71/71-A and 72/2 was that defendant No. 1 Sheik Gulab had become the owner of adverse possession. At the trial on behalf of the plaintiffs four witnesses were examined and it is not now disputed that the only material evidence so far as the execution of the wake is concerned was the evidence of Kazi Rahimuddun. Five witnesses were examined on behalf of the defendants.
(3.) THE trial Court held that there was no evidence to show that the lands and the house property in the suit were exclusively properties of deceased Sheikh Mehatab and it gave a finding that those properties were the joint properties of Sheikh Mehatab and Sheikh Gulab at the time of the death of Sheikh Mehatab. The trial Court then came to a finding that the wake deed (Ex. P-29) was sufficiently proved and that decreased Sheikh Mehatab had created a wake of his properties mentioned in the wake deed (Ex. P-29) dated 4-7-1946. It may be stated at this stage that while coming to the conclusion that the execution of the wake deed was proved the trial court took into account three circumstances. The first circumstance was the statement of Kazi Rahimuddin that he had seen deceased Sheikh Mehatab sign the wake deed. The second circumstance was that on comparison the signature of Sheikh Mehatab on the wake deed (Ex. P-29) appeared to be his when compared with the authentic signature of Sheikh Mehatab made before the Sub-Registrar on the same wake deed at the time of registration. The third circumstance was that there was a certificate of the Sub-Registrar on the wake deed as prescribed under Section 3 of the Indian Registration Act, and according to the learned Judge, in view of the provisions of Section 60 (2) of the said Act as such an endorsement made by the Sub-Registrar could be some evidence of execution. On the contention of the defendants that the wake was one which was made during his death-illness by Sheikh Mehatab the trial Court held that there was no question of any apprehension of death by Sheikh Mehatab, nor was there any immediate danger of death of Sheikh Mehatab on 4-7-1946 when he executed the wake deed. The trial Court negatived the contention of the defendants that there were bona fide purchasers for value without notice and that their purchases were protected. On the issue of adverse possession in respect of S. Nos. 71/1-A and 72-2 the trial Court held against the defendants. Having held that wake deed to the proved the plaintiffs were held entitled as mutawallis to recover possession of the wake property. Having regard to the earlier finding that the properties were joint properties of Sheikh Mehatab and Sheikh Gulab, the trial Court cam to the conclusion that the wake could operate only in respect of half share of Sheikh Mehatab in the suit properties. The trial Court found that the plaintiffs could not claim land from any particular part of each filed. This applied only where the entire fields were not made the subject-matter of the wake. These were fields S. Nos. 127 and 131/1 of Shendurjana, S. Nos. 15 and 65 of Khedi and S. No. 33 of Mol Wihir, because in respect of these fields a particular part of the field was stated to be the subject of the wake in the wake deed. On the issue of mesne profits the trial Court rejected the evidence tendered on behalf of both the plaintiffs and the defendants and came to the conclusion that there was to mesne profits and, therefore, only nominal past mesne profits could be awarded to the plaintiffs. Consequently the trail Court awarded mesne profits at Rs. 50/- per year in respect of pieces of lands from S. No. 127 of Shendurjana and S. No. 65 of Khedi, at Rs. 100/- per year in respect of pieces of lands from S. No. 15 of Khedi and No. 131/1 of Shendurjana and S. nos. 71/1-A and 72/2 of Malkapur, and at Rs. 200/- per year in respect of piece of land from S. No. 33 of Mol Wihir. The total mesne profits which were thus awarded to the plaintiffs came to Rs. 1900/- as against the claim for Rs. 7350/- made by the plaintiffs initially. With regard to the house property also the trail Court found that the plaintiffs will two houses and three open sites mentioned in the plaint after its division of land will have to be done by the Collector, Amravati, under Section 54 read with Order 20, Rule 18 of the Code of Civil Procedure. So far as S. No. 33 of Mol Wihir was concerned, the trial Court found that the plaintiffs' claim could be allowed only to the extent of 13 acres 24 gunthas subject to the maximum to the extent of on-half share of deceased Sheikh Mehatab in that land. The plaintiffs who had claimed future mesne profits were also held entitled to them. Accordingly, a decree directing delivery of possession of the areas specified in the respective fields in the wake deed was passed subject, however, to a rider that in case of S. Nos. 131. 1 15, 65 and 33 the land of which possession would be given to the plaintiffs would not exceed half the area of the fields. S. Nos. 71/1-A and 72/2 of Malkapur were, however directed to be given possession of the plaintiffs wholly. Being aggrieved by this judgment and decree of the trail Court the defendants-transferees have filed this appeal.;