1. This appeal arises out of the judgment and order passed by the learned Civil Judge, Senior Division, Palghar in Special Civil Suit No. 528 of 1996, dated 20th January, 1998 thereby dismissing the suit of the plaintiffs, which was filed by the present Appellants alongwith other plaintiffs, viz. Respondent Nos. 14 to 21 herein,
2. The facts in nutshell out of which the present appeal arise are as under:
3. For appreciating the lis between the parties, it will be convenient to refer the genealogy of the parties, which is as under:
"TREECHART OMITTED".
Rest of the Defendants are other parties, who have purchased
properties from Defendant Nos. 1 to 4.
4. The deceased Gulam Nabi Bhure was owning and
possessing huge properties in Vasai and Palghar talukas of district
Thane. The properties are described in Schedule "A" to the suit and
reptroduction thereof would unnecessarily make the judgment bulky.
To state in nutshell, the property owned by Gulam Nabi consisted of
vast agricultural lands, bungalows and salt lands consisting of 2350
salt pans. Gulam Nabi had three children, viz. one son (Khalil) and
two daughters (Zubaida and Zulekha). Plaintiff Nos. 1 to 12 are
children of Zubaida and Ajij Ahmed Akbar Nachan who is Plaintiff
No. 13. It is their case that they have 25% share in the suit property,
originally owned by Gulam Nabi. The suit came to be filed for
administration i.e. for partition, separate possession and declaration
with ancillary reliefs. Defendant No. 1 Khalil is son of deceased
Gulam Nabi. Defendant Nos. 2 to 4 are sons of Defendant No. 1.
Defendant No. 5 - Zulekha Rais is sister of Defendant No. 1 Khalil
and deceased Zubaida. It is claim of the Plaintiffs that deceased
Gulam Nabi died on 25th December, 1963, leaving behind Defendant
No. 1 as his only son, and Defendant No. 5 Zulekha and deceased
Zubaida as the only daughters. It is claim of the Plaintiffs that after
the death of Gulam Nabi, Defendant No. 1, being male member of the
family and as a trustee of his two sisters, took charge and control of
the suit lands for himself as well as Defendant No. 5 and deceased
Zubaida. It is their case that Defendant No. 1 had no exclusive right,
title and interest in the properties left by the deceased. It is claim of
the Plaintiffs that as per Islamic Law (Shariyat), Defendant No. 1 was
entitled to 50% share whereas Defendant No. 5 and deceased Zubaida
were entitled to have 25% share each in the suit lands. Zubaida died
on 23rd February, 1965.
5. It is claim of the Plaintiffs that the deceased Zubaida was demanding her 25% share in the suit properties till her death i.e. 23rd February, 1965. However, Defendant No. 1 kept on promising, but did not give any share till her death. It is further case of the Plaintiffs that Plaintiff No. 13 and other Plaintiffs were also making the demands for their share. However, Defendant No. 1 kept on promising that he will give the share, but did not act on the said promise. It is their further case that in or around October 1994 Plaintiffs came to know that Defendant No. 1 had illegally and unlawfully excluded the Plaintiffs and Defendant No. 5 from their share. It is their further case that on inquiry, they came to know that since long that Defendant No. 1 with malicious, mischievous intention and in malafide manner, was attempting to deprive the Plaintiffs of their legitimate 25% share in the suit properties. It is their case that Defendant No. 1 was promising them that he would give their share, however, for the first time on 1st August, 1995 Defendant No. 1 denied them to give their share. In this background, the suit came to be filed for various reliefs, including the main relief of declaration that the Plaintiffs are entitled to 25% share of deceased Zubaida and for administration i.e. partition and separate possession of 25% share in the suit properties to which they are entitled.
6. Suit came to be resisted by Defendant Nos. 1 to 4 (for short "the contesting Defendants") by filing written-statement. It is main contention of the contesting Defendants that much prior to the death, deceased Gulam Nabi, by a valid oral gift deed, had gifted the properties to Defendant Nos. 1 to 4 as well as to late Smt. Khairunnissa, who was wife of Defendant No. 1. It is their further case that vide registered deed dated 14th February, 1959 he executed a declaration of gift in writing. It is their further case that on the basis of the said oral gift, which was subsequently registered, deceased Gulam Nabi made correspondence to the various authorities for mutating name of these defendants in the record.
7. It is their further case that deceased Gulam Nabi, who was having 50% share in salt pans alongwith deceased Haji Amir Saheb Mohiuddin Rais, had divided his share in the lands including salt pans into four parts and had given equal share to Defendant Nos. 1 to 4. It is their further case that insofar as residential properties / bungalows are concerned, said properties were gifted by deceased Gulam Nabi to late Khairunnisa. It is their further case that Gram Panchayat Manikpur had passed a resolution for transferring the said bungalows in the name of Khairunnisa in the year 1961. It is further case of the contesting Defendants that deceased Gulam Nabi Amin Saheb Bhure had gifted an amount of Rs. 15,000/- each to his daughters, viz. Defendant No. 5 Zulekha and deceased Zubaida, which amount was duly accepted by Defendant No. 5 and deceased Zubaida. It is further case of contesting Defendants that Defendant No. 1 had paid huge amount on account of gifts to his daughters. It was further case of the contesting Defendants that deceased Zubaida and the Plaintiffs, and Defendant No. 5 were very much aware about all this since the year 1958. It was their specific case that suit was barred by limitation.
8. Defendant No. 5 by filing written-statement supported the claim of the Plaintiffs and claimed that she is entitled to 25% share in the property left left by deceased Gulam Nabi.
9. Rest of the Defendants claimed that they were subsequent purchasers having purchased the property bona fide by paying valuable consideration after making due enquiry, and as such, prayed for dismissal of the suit against them.
10. On the basis of rival pleadings, the learned trial Judge framed following issues:
1. Do the Plaintiffs prove that the oral gift dt. 5/2/58 and the gift deed dt. 14/2/59 are illegal and void?2. Do the Plaintiffs prove that they have ? share in the suit properties?3. Do the plaintiffs prove that transfer of suit lands situated at Village Ten, Tal Palghar, in favour of the defendants No. 2 to 4 is illegal and void?4. Do the Plaintiffs prove that the sale deeds dt. 4/3/1991, 6/5/1991, and 28/8/1992 executed by the defendants No. 2 to 4 in favour of the defendants No. 6 to 13 are illegal and void?5. Do the plaintiffs prove that the defendants No. 1 to 4 are unlawfully trying to alienate the suit properties?6. Do the defendants No. 6 to 13 prove that they are bonafide purchasers of the respective suit lands for value without notice?7. Whether suit is within limitation?8. Whether the plaintiffs are entitled to the reliefs as prayed for?9. What order and decree?
11. Plaintiffs examined Plaintiff No. 7 - Asif Nachan as PW 1 in support of their claim. Plaintiffs also examined one Najir Chikhalkar as PW 2 to support their claim that the deceased Gulam Nabi was not in good physical as well as mental condition. One Nadirshah Sadik Husan was examined as PW 3 to support the claim of the Plaintiffs that they came to know that suit lands are acquired by Defendant No. 1 in the year 1995. Plaintiffs examined one Sharad Patil, Talathi of the village as PW 4 to support their their case that the Defendant No. 1 started illegal activities somewhere in the year 1994.
12. Defendant No. 1 Khalil examined himself as DW 1 in support of case of Defendant Nos. 1 to 4. contesting Defendants also examined one Dilip Desai as DW 2 in support of their case that the Gram Panchayat had passed the resolution on 3.3.1958 to transfer the property in the name of Defendant No. 1 and his wife Khairunnisa. They also examined one Nazim Rais in support of their case that the property was gifted to them by deceased Gulam Nabi, and that deceased Gulam Nabi was in good physical and mental condition in the year 1958. They also examined one Shriram Thombare as DW 4, who was Dy. Superintendent of Salt at Umeda, to prove that an application was made by Gulam Nabi Bhure for transferring his eight Anna share in the name of his son and grand sons. The documentary evidence was also led on behalf of the Defendant Nos. 1 to 4 to support their claim that oral gift in respect of which written document was registered in the year 1959 was duly acted upon by the deceased Gulam Nabi. It is their further case that on the basis of these applications, the properties came to be transferred in the names of the contesting Defendants as well as Khairunnisa, the wife of Defendant No. 1 and their names were entered in the record in pursuance thereof. After considering the evidence on record, the trial Court answered the issues as under:
1. No.2. Succeeded in proving their 1/4th share only in the suit lands situated at village Nandgaon.3. No.4. No.5. No.6. Does not survive.7. The suit is within limitation only in respect of declaration relating to the sale deeds dt. 28.8.1992.8. No.9. The suit is dismissed.
13. Being aggrieved by the impugned judgment and order of the learned trial Court, the Appellants who are some of the Plaintiffs have approached this Court.
14. We have heard Mr. A. Y. Sakhare, learned senior counsel appearing on behalf of the Appellants and Mr. Mr. M. M. Vashi, learned senior counsel appearing on behalf of Defendant Nos. 1 to 4 and Mr. R. S. Datar appearing for Respondent No. 11.
15. Mr. Sakhare, learned senior counsel submits that the learned trial Court has grossly erred in dismissing the suit on the issue of limitation. He submits that the learned trial Judge has erred in holding that the suit is barred in view of Article 65 of the Indian Limitation Act. He submits that the period of limitation will have to be computed from the date of knowledge of plaintiffs. He submits that property was in possession of Defendant Nos. 1 to 4 as co-tenant and the point of limitation would start from the date of denial of the right of the Plaintiffs. He submits that all throughout Defendant Nos. 1 to 4 were enjoying the properties as co-tenants and only in the year 1994 they have denied claim of the Plaintiffs. It is therefore, submitted that the learned trial Judge has erred in dismissing the suit on the ground of limitation. Mr. Sakhare further submitted that in 1994 contesting Defendants had never denied claim of the Plaintiffs, and as such, the learned trial Judge has wrongly applied the provisions of Article 65 of the Limitation Act, while dismissing the suit.
16. The learned senior counsel further submitted that ownership of the suit lands vests in the Government of India. He submits that as per the lease-deed, unless there is prior approval of the Collector, the lease could not have been assigned by the deceased Gulam Nabi to the contesting Defendants. He therefore, submits that the appeal deserves to be allowed and the decree of partition and separate possession should be passed. Learned senior counsel Mr. Sakhare relied on the judgment of the Supreme Court in the case of - Syed Shah Ghulam Ghouse Mohiuddin & Ors., Appellants Vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri & Ors., Respondents, 1971 (1) Supreme Court Cases 597.
17. Mr M. M. Vashi, learned senior counsel submits that the Plaintiffs were knowing from the inception that property was gifted to the Defendant No. 1 to 4 and deceased Khairunnisa by the deceased Gulam Nabi in the year 1958 and thereafter the contesting Defendants were enjoying the suit property as the absolute owners thereof. He submits that oral gift coupled with registered document of 1959 would clearly show that Gulam Nabi had gifted the property to the contesting Defendants. He submits that the voluminous documents placed on record by the Appellants would reveal that the deceased Gulam Nabi had taken various steps, which are required under the provisions of law for effecting the transfer in the name of the contesting Defendants. He further submits that as a matter of fact in the year 1972 Defendant No. 1 had given solvency certificate so as to enable Plaintiff No. 13 to purchase forest land. He submits that in the said solvency certificate details of all the properties of contesting Defendants, as they owners being thereof are mentioned.
18. Mr. Vashi, learned senior counsel relied on the following judgments :
(i) Mamomedally Tyebally & Ors, Appellants Vs. Safiabai & Ors., Respondents, A. I. R. 1940 Privy Council 215; [Privy Council judgment](ii) Mohammadbhai Kasambhai Shaeikh & Ors., Appellants Vs. Abdulla Kasambhai Sheikh, Respondents, (2004) 13 Supreme Court Cases 385. [Apex Court Judgment]
19. With the assistance of the learned counsel appearing for the parties, we have scrutinised the evidence on record.
20. Since we find that the appeal deserves to be dismissed only on the issue of limitation, we frame the following issues for consideration and record our findings against them as under:
| Issues | Findings | |
| (i) | Whether the suit is within limitation? | No. |
| (ii) | What order & decree? | Appeal is dismissed. |
21. By now, it is settled principle of law that the issue of limitation is a mixed question of fact and law. It is not in dispute that the parties are closely related to each other. It is also not in dispute that Defendant Nos. 1 to 4 and Defendant No. 5 are residents of the same village, whereas the Plaintiffs are residents of another village in adjoining tahsil of the same district. In this background, it will be appropriate to refer to Article 65 of the Limitation Act. Relevant part of the said Article is as under:
| Description of suit | Period of limitation | Time from which period begins to run | |
| 65 | For possession of immovable property of any interest therein based on title. | Twelve years | When the possession of the defendant becomes adverse to the plaintiff. |
| Explanation.- For the purposes of this article - | |||
| (a) ... | |||
| (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; |
22. It will also be relevant to refer the observations of the Privy Council in the case of Mahomedally (supra), which read as under:
"It was not contended before the Board that the plaintiff''s suit is of the character mentioned in Art. 106 Limitation Act. It is a suit against certain Mahomedan coheirs by a person entitled to part of the interest of an heir and the High Court on appeal rightly held that to such a suit neither Art. 106 nor Art. 123 is applicable. The heirs of a Mahomedan succeed to his estate in specific shares as tenants in common and, the plaintiff''s suit against the son and daughters of Ebrahimji for due administration of what came to their hands as property left by their father is governed as regards immovable property by Art. 144 and as regards movables by Art. 120: 20 I A 155, 20 I A 155 Mahomed Riast Ali v. Hasin Banu.; 59 I A 74, 59 I A 74 Ghulam Muhammad v. Ghulam Husain. Upon the proper appreciation of Art. 120 as between tenants in common, it will be sufficient to refer to 57 I A 325, 57 I A 325 Mt. Bolo v. Mt. Koklan. and 45 Mad 648, 45 Mad 648 Yerukola v. Yerukola. It does not appear that the widow, son or daughters of Ebrahimji received what was to come to them under the agreement of 24th September 1924 until the suit of 1924 had been decreed in 1926 which is well within six years of filing of the present suit on 23rd July, 1930. But their Lordships think it right to add that on the evidence they find no reason for holding that there had been an ouster or exclusion of the plaintiffs prior to 23rd July, 1924 : indeed there are concurrent findings of the Courts in India which are inconsistent with any such contention."
23. It can be seen that the Privy Council has held that the heirs of a Mahomedan succeed to his estate in specific shares as tenants in common, and the suit for recovery of immovable property is governed by Art. 144, presently Art. 65. It could thus, be seen that in view of Art. 65, the suit will have to be filed within a period of 12 years when the possession of the defendant becomes adverse to the plaintiff. It could thus, be seen that under Art. 65, suit will have to filed within a period of twelve years from the ouster or exclusion of the plaintiff. However, in the present case since the Plaintiffs are claiming through deceased Zubaida, in view of Explanation (b) of Art. 65, possession of Defendant Nos. 1 to 4 shall be deemed to have become adverse only after the death of Zubaida.
24. In the present case, the dates are undisputed. The deceased Gulam Nabi has expired on 25th December, 1963. Zubaida through whom Plaintiffs are claiming died on 23rd February, 1965. It could thus, be seen that the issue that will have to be decided is as to whether ouster or exclusion of the Plaintiffs is in the year 1994-95 as claimed by them, or it is from 1959 as claimed by Defendant Nos. 1 to 4. If the Plaintiffs prove that it is for the first time in the year 1994-95 there was ouster or exclusion from the suit property, the suit will be within limitation. Conversely, if the contesting Defendants prove that ouster is prior to period of 12 years from the date of institution of the suit, it will have to be held that suit is barred by limitation.
25. For considering the said issue, we will have to refer to the pleadings as well as oral and documentary evidence on record. The Plaintiffs have made a statement in paragraph 8 of the plaint that since the death of Gulam Nabi Bure, the demands of 25% share in the suit property were made several times. It is further averred that Defendant No. 1 kept on promising, but did not give share till 1st of August, 1995. It is stated that for the first time in October 1994, the Plaintiff No. 7 came to know that Defendant No. 1 had illegally, in order to oust and exclude the Plaintiffs, started showing inherited properties to the prospective purchasers for the purpose of selling the same. It is stated that thereafter after making enquiry and investigation by Plaintiff No. 7 and Plaintiff Nos. 13, they came to know about illegal design of the contesting Defendants. It is stated that at that time, the demand was made for 25% share by the Plaintiffs and Defendant No. 1 assured to give them their share. However, thereafter on several occasions the Defendant No. 1 except promising did nothing. On 1st of August, 1995, the Plaintiffs asked for the final reply from Defendant No. 1 and on that day, Defendant No. 1 for the first time refused to give share. It is therefore contended that 1st August, 1995 would be relevant date to consider ouster or exclusion.
26. It will be relevant to refer the evidence of PW 1 Asif Nachan, who is Plaintiff No. 7, and who is the only plaintiff examined on behalf of the plaintiffs. Perusal of examination-in-chief of the said witness itself would reveal that in the year 1963, he was nine years of age. He has stated his mother had demanded share in the suit property from Defendant No. 1, from time to time till her death. However, Defendant No. 1 went on giving assurance. In para 10 of the evidence, he has stated that after the death of his mother, Plaintiffs made demand on several occasions, but Defendant No. 1 kept on assuring them. Then he deposed about the averments made in the plaint with regard to first time refusal by Defendant No. 1 on 1st of August, 1995.
27. In cross-examination, he has admitted that his father had purchased forest land at village Asaverista, taluka Mokhada, district Thane near about the year 1972 to 1974. He has admitted that solvency certificate was necessary to purchase forest in that village. To a specific suggestion as to whether the solvency certificate of Rs. 2,00,000/- was given to him by Defendant No. 1 Khalil Ahmed, he has shown ignorance. To another suggestion as to whether all the suit properties were shown to be of Defendant No. 1 in the solvency certificate, again he has shown ignorance. In the cross-examination on behalf of Defendant No. 13, he has fairly admitted that his mother never tried to get her name entered in the suit properties after the death of Gulam Nabi. He further admitted that after the death of his mother Zubaida, his father i.e. Plaintiff No. 13 never tried to get names of plaintiffs entered in the suit property to the share of his mother.
28. As against this, Defendant Nos. 1 to 4 in their writtenstatement have specifically averred that deceased Gulam Nabi in the year 1958 had, on his free will, gifted various properties, including the agriculture lands, salt pans, so also various bungalows and also forest in favour of Defendant No. 1 and late Khairunnisa. It is further stated that on the basis of this oral gift, the deceased himself gave a statement for entering the name of Defendant No. 1 in the record of rights of the Gram Panchayat and Salt Department. Insofar as salt pans are concerned, it is stated that salt pans were owned by deceased Gulam Nabi and one Mr. Rais. It is further stated that mutation was duly entered in the year 1960, wherein names of four defendants were entered as the Shilotridars alongwith Mr. Rais as co-owner in respect of the lands including salt pans.
29. It is further asserted by Defendant No. 1 that acting as an exclusive owner he had divided and partitioned his agricultural land at village Ten in the year 1964 and transferred them in the name of Defendant Nos. 2, 3 and 4, and mutation entry to that effect was also entered. It is further stated that necessary entries with regard to transfer of bungalows in the name of Khairunnisa were also taken in the record of Gram Panchayat.
30. Defendant Nos. 1 to 4 have examined Defendant No. 1 Khalil as DW 1. He has specifically stated in his deposition that right from 1958 when the properties were gifted by deceased Gulam Nabi, the contesting Defendants and deceased Khairunnisa were having exclusive ownership of suit property and were possessing the same as exclusive owners. He has specifically stated that deceased Zubaida and the Plaintiff No. 13 were very well aware about the gift deed executed in their favour by the said Gulam Nabi.
31. It would thus, be seen that so far as oral testimony of the witnesses for the Plaintiffs and the contesting Defendants are concerned, it would be word against the word. We therefore, find that it will be more appropriate to refer to the documentary evidence placed on record by the contesting Defendants. Defendant No. 1 has specifically averred in his deposition that on 5th February, 1958 his father expressed the desire to gift his property of his share to Defendant No. 1, his sons and his wife, and therefore on the very same day he made a declaration of oral gift. He has further deposed that his father has executed a declaration of gift in writing on 14th February, 1959 before the Sub-Registrar, Palghar. The said deed is duly exhibited as Exhibit 169. The said deed was shown to DW 3 Najim Rais, who is son of Amir Saheb, who was co-owner of the salt pans alongwith Gulam Nabi. He has stated that his father Amir Saheb gifted all his properties to his sons by way of oral gift. He has stated that he used to meet Gulam Nabi in respect of business matters and family affairs and he was residing with his son near his house. He has stated that Gulam Nabi was in good physical as well as mental condition till his death. He has stated that in the year 1958 he was 21 years old. In the year 1958 Gulam Nabi told that he had orally gifted his properties to his son, daughter in law and grand sons. He has stated that after the gift in the year 1958, Defendant Nos. 1 to 4 became co-owners with him and his brothers, so far as salt pans are concerned. He has stated that in the month of February, 1958 Gulam Nabi made declaration of oral gift and in the month of February 1959 Gulam Nabi made in writing declaration of the oral gift.
32. He further stated that in the Sub-Registrar''s office one Najim Rais, apart from his relative Mohammad Miya Bhure and Sub- Registrar of Palghar were present. This witness is signatory to the registered deed of declaration of gift. In his evidence, he has identified signatures of deceased Gulam Nabi at Exhibit 169 and the attesting witnesses, including himself. In paragraph 12 of his crossexamination, he was thoroughly cross-examined with regard to genuineness of the declaration of gift executed on 14.2.1959. However, no damage could be done to his testimony.
33. Exhibit 170 is Jamin Kharda extract. The entry therein is of 13th November, 1958. Exhibit 171 is the order passed by the Dy. Superintendent of Salt. It shows that the office of the Dy. Superintendent had received an application on 5th February, 1958 from Gulam Nabi stating therein that he has transferred his share in the name of the contesting Defendants. The said application is allowed vide order dated 11th October, 1960. The contesting Defendants have examined one Shriram Ratan Thombare as DW 4. He has deposed on the basis of the official record. He has deposed that an application was made by Gulam Nabi to the Dy. Superintendent, Salt on 5th February, 1958. He has stated that the Department had called for certain explanation from Gulam Nabi. He has produced the said application in his evidence. Exhibit 209 is another application dated 8th September, 1959 made by the said Gulam Nabi. On these applications, the order below Exhibit 171 came to be passed deleting name of Gulam Nabi and entering name of the contesting Defendants. Exhibit 175 and 176 are 7-12 extracts of land Survey No. 151 of village Manikpur. Exhibit 127 is the mutation entry with respect to the lands of village Manor. The said entry is executed on 28th February, 1965. Exhibits 172 and 173 are the certificates from Income Tax Officer, Palghar stating therein that Defendant No. 1 was assessed for the assessment year 1959-60 on lease money received from saltpans, and these salt-pans were received by him as a result of gift made by late Shri Haji Gulam Nabi Bhure in February, 1958. Exhibit 180 is an assessment order passed by Gift Tax Department on 21st February, 1962 in respect of assessment of the deceased Haji Gulam Nabi Amin Saheb. The said order clearly shows that salt pans are gifted to Defendant No. 1 and Defendant Nos. 2 to 4, and land was gifted to Defendant No. 1. The residential houses were gifted to deceased Khairunnisa. These documents also show that deceased Gulam Nabi has gifted Rs. 30,000/- to his married daughters. It could thus, be found from perusal of the documentary evidence as placed on record, that Defendant Nos. 1 to 4 have been claiming to be in exclusive ownership and possession of the entire suit properties right from inception. All the documents of revenue authorities, Dy. Superintendent of Salt, Gram Panchayat, show that either deceased Gulam Nabi or Defendant No. 1 have made applications to the concerned authorities for entering the names of the contesting Defendants in respect of immovable properties.
34. On perusal of the documents placed on record, it could thus, be clearly seen that contesting Defendants are asserting their rights as owner of the suit properties right from the beginning. Perusal of the documents, which are part of official record, viz. revenue authorities, Union of India and the Gram Panchayat, would reveal that most of such entries are prior to the year 1965.
35. The Plaintiffs except vague statement in the plaint, and deposition of Plaintiff No. 7, have stated that their mother Zubaida was demanding the share till her death and that thereafter Plaintiff No. 13 was demanding the share, and Defendant No. 1 was assuring that he would give them the same. The Plaintiffs have not placed a single document on record to substantiate their contention. In any case, it is important to note that if the deceased was demanding their share and Defendant No. 1 was dilly dallying, then at least after deceased Zubaida''s death the Plaintiffs could have taken some action to assert their right. Undisputedly, after Zubeda''s death, after a period of almost 30 years, suit is filed. As already discussed hereinabove, the Plaintiffs and contesting Defendants are closely related to each other. Defendant Nos. 1 to 4 and Defendant No. 5, who supports the case of the Plaintiffs, resided in the same village. Perusal of documentary evidence reveals that after execution of declaration of the oral gift in writing, the deceased Gulam Nabi had made applications to various authorities including Revenue, Salt and Gram Panchayat for transferring the properties in the name of contesting Defendants. Not only that, but the said authorities had also given effect to the said applications and transferred the properties in the name of contesting Defendants and deceased Khairunnisa. It is thus, more than evident that contesting Defendants had asserted their right to the suit properties as exclusive owners thereof right from the period between 1958 to 1960. It is further to be noted that it has come in the testimony of DW 1 Khalil that in the year 1965 he had sold godown which was gifted by him to the husband of DW 5. The true copy of the said saledeed is produced at Exhibit 159/2. It could thus, be seen that at least in the year 1965 all the parties were closely related to each other and they knew that contesting Defendants or at least Defendant No. 1 had asserted his right to the properties, gifted to him by deceased Gulam Nabi, as the exclusive owner thereof. It is difficult to believe that Plaintiffs were not aware about assertion by Defendant Nos. 1 to 4 with regard to their ownership of the suit property.
36. It could thus be seen that in view of the law laid down by the Privy Council in the case of Mahomedally Tyebally (supra), the suit ought to have been filed within a period of 12 years from the date on which the contesting Defendants had asserted their right in the suit property as exclusive owners thereof. The view taken by the Privy Council in the case of Mahomedally Tyebally (supra) has been followed by the Apex Court in the case of Mohammadbhai Kasambhai (supra).
37. Insofar as the judgment of the Apex Court in the case of Syed Shah Ghulam Ghouse Mohiuddin (supra) is concerned, the learned senior counsel is right in relying on the following observations of the Apex Court, which read as under:
"11. ... The estate of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. Where the heirs continue to hold the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster of denial of title and Article 144 of Schedule I of the Limitation Act, 1908 would be relevant Article."
38. The Apex Court in clear terms has held that period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of the title and that Art. 144 of Schedule I (Art. 65 of the present Act) would be the relevant article. However, it would be relevant to refer to the observations of their Lordships in paragraph 18, which read thus:
"18. ... In the present case, it is apparent that until the year 1927 the appellant and the other parties were clearly kept out of the knowledge of the true character of the properties. Even after 1927 it cannot be said on the evidence on record that the appellant had any knowledge of the true character of the properties orof ouster of adverse possession of Abdul Hai. The reasons are that Abdul Hai never alleged against the appellant and the other parties openly that he was enjoying the properties to the total exclusion of the appellant and the other brothers. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them."
39. In the case before the Hon''ble Apex Court, the Plaintiffs and other parties were kept out of knowledge of true character of the property. It was posed that the properties were Dargah and Khankah properties and not Matrooka properties. It was therefore, held by Their Lordships that on account of active concealment of the fact that the properties were not Dargah and Khankah, though the person who claims adverse possession was having full knowledge of the fact, and therefore, when the said fact came to the knowledge of the plaintiff with regard to concealment of the nature of the property, the plaintiff got a right to sue. The facts of the reported case are totally different from the present case. In the present case, documents between 1958 to 1965, which documents are part of official record of the State Government, Central Government and the Gram Panchayat, clearly show that Defendant Nos. 1 to 4 were asserting their right as owners of the property. The civil suit is required to be decided on the basis of preponderance of probabilities. The stand of the Plaintiffs that they were not aware about acts done by the contesting Defendants till 1994 is improbable. We are inclined to take this view, particularly taking into consideration the undisputed relations between the parties. As already been discussed hereinabove that acting upon the gift, deceased Gulam Nabi had made various applications for transferring the land in the name of the contesting Defendants and deceased Khairunnisa. Not only that but the authorities, viz. State (Revenue), Union of India (Salt Department) and Gram Panchayat acting upon the said applications had made necessary entries in the statutory documents. Not only this, but the husband of Defendant No. 5 had himself purchased one of the properties gifted to Defendant No. 1 by a registered sale-deed in the year 1965. If that be so, then the contention of the Plaintiffs that the contesting Defendants were holding possession of the property as coowners is totally improbable.
40. In the result, we hold that Plaintiffs have failed to prove that suit is within limitation. Appeal is therefore, dismissed confirming the judgment and order of the trial court dismissing the suit, with no order as to costs.
41. In view of disposal of the first appeal, Civil Application No. 5 of 2014 filed therein does not survive, and it is accordingly disposed of.
