NIZAMUDDIN Vs. MANGAL SEN

JUDGEMENT

(1.) This is a defendants appeal in a suit for partition of a 49/72 sihams share in a house. The following pedigree will elucidate the facts:

(2.) Khairat Ali in the above pedigree died in 1920, after which his widow Hafiz-un- Nisa brought a Suit No. 278 of 1921 of the Court of Munsif, Muzaffarnagar, for recovery of her dower debt against her own son and daughter, Himayat Ali and Hashmi Begum. On 9 August 1921, a compromise was effected in the suit that Hafiz-un-Nisa and Hashmi Begum would be deemed to be the absolute owners of the entire house in dispute, while the entire zamindari property left by Khairat Ali would be deemed to be owned by Himayat Ali only. It was further provided that within a month of the date of the compromise the two ladies would apply to the revenue Court to enter the name of Himayat Ali alone over the said zamindari property and that Himayat Ali, in his turn, would execute a sale-deed in respect of his share in the house in favour of those ladies. There was a further clause in the compromise that in case of failure of the two ladies in this behalf, their suit for dower would stand dismissed and that in case of failure by Himayat Ali to carry out his part of the agreement, the suit would stand decreed. In compliance with the above settlement, Hafiz-un-Nisa and Hashmi Begum did apply to the revenue Court within a month of the compromise that the name of Himayat Ali alone might be entered against the entire zamindari property left by Khairat Ali. Himayat Ali, on the other hand, did not carry out his part of the agreement within the time stipulated under the compromise. However, he did, after the expiry of that period, execute a sale-deed on 24 October 1921, in favour of the ladies regarding his share in the house in dispute. On this, on 28 November 1921, the ladies made an application to the revenue Court that their previous application for the mutation of the name of Himayat Ali against the zamindari property might be struck off. On the death of Khairat Ali, Himayat Ali had inherited a 14/24th, Hashmi Begum a 7/24 and Hafiz-un-Nisa a 3/21 share in the house in dispute. In disregard of this devolution, Himayat Ali on 19 February 1923, however, executed a sale- deed in respect of the entire house to .Shanker Lal, father of the plaintiff- respondent. Not being able to get possession over the house, which had all along been in the occupation of Hafiz-un-Nisa and Hashmi Begum, Shanker Lal sold the house to one Mt. Lado, and this lady then brought a Suit No. 3175 of 1925 of the Court of Munsif, Muzaffarnagar, against Shanker Lal and Hafiz-un-Nisa for possession over the house, and, in the alternative, for refund of the sale-price by Shanker Lal. Mt. Lado, in para. 2 of her plaint, had alleged that Mt. Hafiz-un-Nisa had been in unlawful possession of the house without any right. Both the defendants, Shanker Lal and Hafiz-un-Nisa, contested the suit, the former pleading that he had in fact handed over possession over the house to Mt. Lado, and the latter that she, along with her daughter Hashmi Begum, had been in proprietary possession over the house, and that neither the plaintiff, Mt. Lado, nor her predecessor-in-title had ever been in possession thereof, nor had the plaintiff any right to claim possession over the house as against her. The learned Munsif, while holding that Shanker Lal had not proved that the sale-deed executed by Himayat Ali in his favour was for valuable consideration, dismissed the suit of Mt, Lado for possession, but decreed the claim for refund of the purchase price against Shanker : Lal on 6 April 1926. This decree was affirmed in appeal by the learned District Judge of Meerut on 25 June 1926, and the latter decree became final.

(3.) Shanker Lal then filed Suit No. 30 of 1936 against Hafiz-un-Nisa and the heirs of Hashmi Begum, who had since died, for partition of a 14/24 share in the. house. This means that Shanker Lal in this suit did not claim the share which Himayat Ali his vendor, might have inherited from his sister Hashmi Begum. On 31st. March 1937, this suit was dismissed for default, with costs. Thereafter the present suit was; filed by Mangal Sen, son of Shanker Lal for the relief I have already mentioned. The defendants contested the suit principally on three grounds : (1) that the suit was barred by Order 9, Rule 9, Civii P.C., on account of the dismissal of Shanker Lal's Suit No. 30 of 1936; (2) that it was barred by Section 11, Civil P.C., on account of the decree in Suit No. 3175 of 1925; and (3) that the defendants having acquired title by adverse possession for over 12 years, it was also barred by limitation.