1980 PLP 759 (CLC)

(9) Have the plaintiff in Suits Nos. 139 of 1962 and 140/62 any right of ownership in the suit land ? (10) Whether plaintiffs in the above suits are entitled to partition ? (11) Whether Court-fee stamp paid in the suits are sufficient ? (12) Whether these suits are bad on account of non-joinder of necessary parties ? (13) What should the decree be ? It is evident from the facts stated above that several persons have claimed to be the owners of two parcels of land in dispute, and these are 629 acres arid 182 acres in Deb Bhimpura in Taluka Hyderabad. Parties have led evidence in support of their respective claims. All this evidence shows that, this land originally belonged to one Hasan Ali Shah. Pedigree-tables have been produced by the parties and we find very little difference in them. Exh. 103 is one such pedigree-table which was produced in Civil Suit No. 45; i2 in the Court of Ist Class Civil Judge, Hyderabad J. Certain persons had made their statements (Vide Exh. 78) after the death of Bibi Siloo daughter of Ghulam Muhammad Shah and they have referred to this pedigree-table. Haji Imam All Shah, Exh. 21, Ghulam Murtaza Exh. 46 and Muhammad Alam Shah Exh. 77 in their evidence have also referred to the same heirs of Hasan Ali. Shah All this evidence shows that Hasan Ali Shah had four sons, namely Bahadur Shah, Allah Bux Shah, Pinial Shah and Allahyar Shah, The latter two sons had died issueless. Bahadur Shah had six sons, namely Kamal Shah, Karim Shah. Pinial Shah, Sumar Shan, Jhando Shah and Rahim Shah. After the deaths of Allah Yar Shah and Pinial Shah these two parcels of land left by Hasan Shah were inherited by his two remaining sons, namely Bahadur Shah and Allah Bux Shah in equal shares i. e. each owned this land to the extent of eight annas. Rahim Shah son of Bahadur Shah had one son by name Bahadur Shah (Junior) who left one son, namely Ahmad Shah to whom reference bas already been made while narrating the facts. Allah Bux Shah had three sons, namely Ghulam Ahmad Shah, Said Shah and Hasan Shah. The latter two had died issueless and when Ghulam Shah died in or about 1912, he had left two daughters, namely Bibi Saloo and Bibi Noor. These two daughters therefore inherited together 2/3rds of the land i.e. eight annas share belonging to Ghulam Muhammad Shah after his 2 brothers had died. We have already pointed out that Ahmad Shah had inherited the remaining eight annas share. We will not refer to documentary evidence in this respect. The first document is Exh.

81. It is an entry in the Revenue Record of the year 1884-85 in respect of the land in Deb Bhimpura. Next document is Exh.

47. It is an entry in Deb Form VII in respect of land in Bhimpura, Taluka Hyderabad. It is dated 30-8-1928. It mentions Bibi Saloo daughter of Ghulam Ahmad Shah as the sole owner of this entire land and she is described as the head of the family. She is also described as Khatedar by virtue of inheritance from 1911-12. It has also been pointed out by us that Ghulam Ahmad Shah hats died at that time. Exhs. 109, 110 and 111 are the three notices issued under Land Acquisition Act in May, 1937 in respect of Badin land and are addressed to Bahadur Shah (father of Ahmad Shah), Bibi Noor and Bibi Saloo (daughters of Ghulam Ahmad Shah. One more document in this connection is Exh.

79. It is an entry in register of disputed areas in respect of land in Taluka Badin and is dated 29-1-1945. We may add here that Hasan Shah owned besides these two parcels of land in Taluka Hyderabad another piece of land in taluka Badin. All these documents show that after the death of Ghulam Muhammad Shah, his one daughter only namely Bibi Saloo was shown as the owner of the entire land in Deb Bhimpura. We have also shown that Ahmad Shah who bad descended from Bahadur Shah had eight annas share in this land after his two brothers Allah Yar Shah and Pinial Shah had died issueless. Ahmad Shah bad sold four annas share to one Imam Ali son of Noor Shah from his eight annas share in land in Deb Bhimpura on 22-2-1945 and the sale-deed is Exh. 49. .After the death of Bibi Saloo in 1942, the entire eight annas share came to her sister Bibi Noor. She sold one piece of land measuring 182-28 acres to Haji Imam Ali Shah Son of Chhuttan Shah on 16-3-1946 and the sale deed is Exh. 56 we have already pointed out that she had eight annas share only in this land but in spite of this fact she had sold all the sixteen annas share in it to plaintiff Haji Imam Ali Shah. W e may at this stage refer to Exh. 48 which is an entry in Deb Form VII in respect of land in Deh Bhimpura, Taluka Hyderabad. It is dated 24-6-1946. Bibi Noor is shown to bz: transferor in respect of the entire land while Ahmad Shah is shown as owner of eight annas share in this land. It was brought to our notice at the time of arguments that when Ahmad Shah had learnt that the entire land had beer. recorded in the name of Bibi Noor he had filed an appeal and it succeeded with the result that this mutation was made in the record of rights. Column V of this entry reads as follows "On account of the death of Bibi Saloo whole rupee-was received by Bibi Noor but on account of the inheritance and the appeal preferred by Ahmad Shah, she got eight annas share ride Order No. 56/65 dated 3-6-1946 of Deputy Collector, Hala." As a result of sale (vide Exh. 56) mutatioNwere made in Deb Form VII and the relevant entry is Exh. 59 dated 6-8-1946. Name of flaji Imam Ali Shah son of Chhuttan Shah is mentioned in it as a result of sale deed dated 16-3-1946 executed by Mst. Noor Bibi and he is shown to be the owner of all the 16 annas share in this land. Next deed in time is the waqf deed executed by Mst. Bibi. Noor in respect of both these parcels of land in Deb Bhimpura. Its perusal shows that the land sold by her under Exh. 56 is excluded. It is Exh. 55 and is dated 14-10-1946. Thereafter plaintiff Haji Imam Ali Shah gave this land (182-28 acres in Deh Bhimpura) on lease to. Kabool for three years were Kharif 1948-49 to Rabi 1950-51. This lease-deed is Exh. 89 dated 24-6-1947. Ahmad Shah son of Bahadur Shah had already sold his four annas share to Haji Imam Ali Shah son of Noor Shah by sale deed Exh,

49. The remaining, four nnnas share in the land in Dell Bhimpura was sold by him to Wadero Kabool on 20-1-1951 and the sale deed is

50. Imam Ali Shah son of Noor Shah then made a gift of his four annas share in this land to his two sons Ghulam Rasul Shah and Ali Muhammad Shah on 8-10-1951 and the entry in Deb Form Vll is Exh.

51. Another lease in respect of the same land in Dell Bhimpura was given by plaintiff Inam All Shah son of Chhuttan Shah to same Kabool for three years commencing from Kharif 1952-53 to Rabi 1954-55. The lease deed is Exb. 90 and is dated 1-12-1951. After Syed Ahmad Shah had sold his eight annas share in this land by two sale deeds referred to above, he executed the deed which is termed deed of consent on 3-3-1953 and it is Exh.

99. This deed refers to two lands situated in Taluka Badin and Hyderabad. He has conceded that all the sixteen annas share in these two lands belonged to Bibi Noor and further that: Inadvertently eight annas share of the said property has been entered in my khara in the record of rights. But in fact it is a nominal khara. Msr. Bibi Noor has been in possession of the said property from antiquity. Before that, it was in possession and appropriation of her father. 1 have no right or interest in the said land and nor shall I have any." This deed then recites that Mst. Bibi Noor who is issueless has gifted four annas share to plaintiff Haji Imam Ali Shah and the remaining twelve annas share to his daughter Bibi Rachida for the reasons mentioned in it. This deed of gift was executed on 10-10-1959 and Ahmed Shah has admitted that he had no objection to this gift. It is now apparent that this Ahmad Shah wanted to resile from the two sale transactions referred to above. As a result of sale deed Exh. 56 and this deed of consent Exh. 99 mutations were made in the record of right and the relevant entry is Exh. 57 in Deh Form VII. It is dated 20-6-1955. It described Ahmad Shah as transferor in respect of four annas share arid Haji Imam Ali Shah son of Chhuttan Shah as transferee in respect of this four annas share. Column 5 appears to be more relevant and it is reproduced below "Finding as per registered deed executed on 16-3-1956 for Rs. 50,000, the whole on: rupee was purchased by Haji Imam Ali Shah of entry whereof is already kep,' (Serial Nos. 66 and 74 in Form VII of the year 1948-49. But as per ecsiun of the Deputy (torn) Ahmad Shah, the (,torn) was gr4xit d to him. The entry to that effect has been kept at serial No. 65 of Form I'll of 1946-47. As such, the whole rupee was not entered in the record in the name of Haji Imam Ali Shah and only eight annas were entered. Now by another registered deed executed on 3rd March, 1954 (Ahmad Shah) he has withdrawn his share which is in record in favour of Haji Imam Ali Shah. At present, only four annas share from the eight annas share of Ahmad Shah, was entered in his name, which was transferred and entered in the name of Haji Imam Ali Shah on the length of both above mentioned deeds." Thereafter plaintiff Haji Imam Ali Shah son of Chhuttan Shah executed another lease deed for ten years in respect of the lard measuring 182-28 acres in Deh Bhimpura in favour of Kabool and his son Rabadino on 23-3-1956. This lease-deed is Exh.

91. Ghulam Rasool Shah who had got two-anna share by way of gift from his father Imam Ali Shah sold the same to Loung and Rabadino on 23-6-1956. The sale-deed is Exh.

52. Plaintiffs Imam Ali Shah and his daughter Bibi Rashida executed lease deed in respect of another land in Deh Bhimpura measuring 629-26 acres in favour of (i) Syed Alam Shah, (li) Haji Muhammad Ismail, (iii) Kabcol and (iv) Mst. Varial for a period of five years w. e. f. Kharif 1958-59 to Rabi 1962-63 on 2-7-1957. The lease-deed is Exh.

88. It is the subject-matter of the Suit (No. 142/62) stated above. .Syed Ali Muhammad Shah another son of Imam Ali Shah sold his two annas share in land 182 acres, Deh Bhimpura to Lounge and Rabadino by Exh. 53 dated 23-1-1959. We have already pointed out that Kabool had purchased four-anna share from Ahmad Shah by Exh. 50 and his two sons Lounge and Rabadino had purchased the remaining four-anna share from the two sons of Imam Ali Shah by Exh. 52 and Exh.

53. They sold their eight7anna shares to plaintiffs Ghulam Murtaza. Varial and Usman on 16-12-1960 under sale-deed Exh.

54. This is also subject-matter of the Partition Suit (No. 140/61). The mutation made as a result of this transac tion on 3-1-1961 is Exh. 65.

7. We have referred to all the documentary evidence in chronological order in order to show how the land left by Hasan Shah has been dealt with after his death. Reference has been made to three notices Exhs. 109, 110 arid 111, issued under Land Acquisition Act. It is correct that these nutices are not in respect of the land in dispute. But one thing is clear, i.e. Bahadur Shah was a co-sharer along with two daughters of Ghulam Ahmad Shah and this fact proves that Ahmad Shah had eight annas share land wide the remaining eight annas share belonged to Bibi Noor after the. death or Ire: sister Bibi Saloo. Therefore she could not sell all the sixteen-anna shares m this land to plaintiff Haji Imam Ali Shah. In support of it we were referred to compromise application filed in Suit No. 284/59. It is Exh. 82 and is dated 3-2-1961. This compromise includes the land in Deh Bhimpura and is in respect of the entire land measuring 2472 acres in Hyderabad and Badin Talukas. It is signed by both Ahmad Shah and Imam Ah Shah himself and his daughter Bibi Rashida. Ahmad Shah has been alloyed eight annas share. If he was not the descendant or had no share in it the to plaintiffs namely Haji Imam Ali Shah and his daughter Bibi Rashida would not have consented to his share as shown in this applicatio,i, Lastly we were referred to the statement Exh. 60 made by Haji lnlam Ali Shah on oaf:. before the Mukhtiarkar, Hyderabad on 7-10-1959. He has admitted in that statement that he owned land measuring about 325 acres in Deh Bhimpura. It is nearly half of 629 acres in that Deh and which is the subject-matter of this litigation. On considering all the entries and evidence the trial Court rightly came to the conclusion that Haji Imam Ali Shah and his daughter Bibi Rashida had only eight annas share and we find no reason to differ from this finding. It had rightly come to the conclusion that the remaining eight-anna share in this land belonged to Ghulam Murtaza, Varal and Usman. Refer ence to relevant documents has already been made by us.

8. Issue No. 4 deals with the question of possession of 629 acres in respect of which Suit No. 142/6:, has been filed while Issue No. 5 deals with the same question in respect of land leased out by Imam Ali Shah to Wadero Kabool and his son Rahim Dino in respect of which Suit No. 136/62 has been filed by the lessors namely Imam Ali Shah and his daughter Bibi Rashida. The main defence plea by the lessee in these two suits was that the lessor had put them in possession of 8 annas share of the land leased out to them. Thus burden of proof lies upon them.

9. The trial Court had come to the conclusion that Imam Ali Shah was not a reliable witness. It had taken into consideration circumstances which go against the lessor. On: of the circumstances relied upon by the trial Court was that the two lessors, namely Imam Ali Shah and his daughter Bibi Rashida owned eight-anna share only and hence they could not have put their lessees in possession of the entire 16 annas share of the land leased out by them. There is an oral evidence of Imam Ali Shah only and he had deposed before the trial Court that Kabool was in possession of this land already in view of the previous leases to which reference has already been made. First lease deed executed by Kabool in favour of Imam Ali Shah is Exh.

89. It is dated 24-6-1947 and the lease was for a period of 3 years commencing from Kharif 1948-49 till Rabi 1950-51. The land leased out to him measured 182-28 acres and is located in Deh Bhimpura. Second lease deed executed by same Kabool is Exh. 90 dated 1-12-1951 and it is in respect of the same land in Deh Bhimpura. This lease was for three years commencing from Kharif 1952-53 and ending in Rabi 1954-55. The third lease deed (Exh. 91) was executed by Kabool and his son Rahimdino on 23-3-1956, It is in respect of the same land in Deh Bhimpura and was for a period of 10 years (Kharif 1956-57 to Rabi 1965-66). It is in respect of this lease that the suit has been filed. Imam Ali Shah has relied upon the two previous lease deeds, in support of his contention that the entire leased out land was put in possession of Kabool and his son Rahimdino. With regard to this lease deed (Exh. 91) which was registered on 23-3-1956 it was urged before us that the lease was to commence from Kharif 1956-57. It recites that the possession. In respect of land which was not under cultivation for Rabi crops had been given to the lessees. It was brought to our notice that for Rabi cultivation 54 of the land is allowed for cultivation and consequently lessees must have been put in possession if this recital is true to the extent of 46 % only. There is the oral word of plaintiff Imam Ali Shah only to prove his claim. As regards the lease given to Alam Shah and three others the lease deed Exh. 88 though executed on 2-7-1959 was registered on 31-7-1959. This fact clearly indicates that lessees could not have been put into possession of this land from Kharif as preparation for Kharif crop must have started earlier. All these factors weighed very much with the trial Court which had come to the conclusion that Imam Alt Shah had not put the lessees into possession of the entire land leased out to them. In our view the entire evidence which has been adduced by the parties does not appear to be sufficient and satisfac tory. The material witnesses are Haji Imam Ali Shah (lessor) and his twc lessees namely Wadero Kabool and Muhammad Alam Shah. With regard to the lease of Alam Shah and three others Haji Imam Ali Shah (Exh. 21 page 17 of the paper book) had deposed before the trial Court that he had leased out. this land to these 4 lessors and had received lease money for one year amounting to about over Rs. 12,

500. He has said nothing about the possession of the entire land in spite of the fact that he knew the defence plea that he had put the lessees into possession of 8 annas share only. The relevant passage in his evidence (examination-in-chief) reads as follows :- "Before this lease was given it was leased .out to Kabool (torn) as the four defendants remained in possession of the land on lease on its terms." This is alt what he has stated in his Examination-in-Chi-.f with regard to possession of the leased out lands to two parties. . During his cross examination he had stated as follows "1 took over the possession of this land in dispute when it was gifted to me. Bibi Noor did not sell to me this land in dispute. It was the different land. I leased out the land when it was gifted to me and the possession was given to me immediately thereafter." We may add here that Bibi Noor had executed the so-called gift deed Exh. 55 on 14-10-1946.

10. Wadero Kabool is one of the lessees. It is strange to find that not a single question has been put to him in respect of his plea that he was not put into possession of the entire land leased out to him by Imam Ali Shah. The relevant passage. in his evidence (cross-examination) reads as follows: "Imam Ali Shah Ahmad and Shah were is joint possession. I was a lessee before the purchase along with Alam Shah. The lessor was Noor Bibi but afterwards she had gifted her share to Imam Ali Shah and his daughter. We used to take lease from them. I have never taken the lease of this land from' Ahmad Shah in writing. At the time I sold the share to the plaintiff I was in possession of the entire land 8 annas as lessee and 8 annas as owner. I received vacant possession of 8 annas. The possession of the remaining 8 annas is of Master Ghulam Murtaza." He is the same Ghulam Murtaza who has filed partition suit. Last material witness is Muhammad Alam Shah. He has referred to pedigree table and the documents with regard to transaction of the land under dispute. The relevant passage in his evidence with regard to possession reads as follows :- "I and Haji Imam Ali Shah had taken lease of 16 annas from Imam AIL' Shah son of Chuttan Shah in 1957 (lease deed is Exh. 88 and is dated 8-7-1957). He did not give possession of all the 16 annas. He gave possession of half the areas comprising of 314 acres 40 ghuntas. All the sixteen annas lease money for the first year Rs. 12,593 was paid in the first year. As we did not get possession of the remaining area. I asked Imam Ali Shah to adjust the first years lease-money for the second year also. Mr. Imamah in his notice admitted this amount to be lease money for two years. Mr. Imarnah subsequently wrote to us that it was typing error and the lease money was for the first year ...... Imam Ali Shah took back fourteen acres and six ghuntas by mutual consent. In 1960-61 I paid Rs. 5,000-8-0 as lease money I paid Rs. 8,000 and Rs. 6,000 more in the subsequent years." In his cross-examination on the question of possession he had stated as follows :- "I asked Imam Ali Shah whether he could give possession of the remaining 8-anna share or whether I should purchase it. from those in possession and he had advised me to purchase it. I did not give a written notice to Imam Ali Shah that I had not received possession but there was private talks between us. Wadero Kabool was present at the lime of these talks."

11. This is the entire evidence which the parties have adduced in support of their versions. It is evidence that it is neither sufficient nor satisfactory to arrive at correct decision in these two suits. It is correct that parties in civil litigation must win or loose on the basis of their pleadings and the evidence adduced by them, It is not the function of civil Court to direct the parties to lead any kind of evidence. But in this particular case for the reasons stated above we are unable to arrive at the correct conclusion and therefore find that it is a fit case in which additional evidence must be recorded. It is therefore ordered that the suits be remanded back to the trial Court for recording further evidence on these two issues and submit the record within three months. M, Y. M, Appeal accepted.