Allahabad High Court
Sajjad Husain vs Qurban Ali Beg on 21 May, 1926
Equivalent citations: AIR1926ALL697, AIR 1926 ALLAHABAD 697
JUDGMENT
1. The plaintiff filed a suit on the 11th of April 1921, for a declaration that Mt. Usmani Begam had no right to make a gift of a share in a house, which belonged to the plaintiff, in favour of her son, Qurban Ali, and that Qurban Ali was not entitled to resist execution of a partition decree which the plaintiff had obtained for his share of the house against Usmani Begam.
2. The plaintiffs' case is that the house belonged to his father Irshad Husain, and that a share of 7/16ths devolved upon him by inheritance. Usmai Begam in execution of a money-decree against Mt. Mumtazunnissa (the widow of Irshad Husain and mother of the plaintiff) got the whole house put to sale and purchased it herself. The date of the sale was the 29th November 1904, and the sale was confirmed on the 2nd February 1905. On the 13th March 1916, the plaintiff Sajjad Husain brought a suit for possession of his share in the house by actual partition against Mt. Usmani Begam and his brother Ikram Husain. He obtained a final decree for partition on the 30th March 1917. In execution of the decree Qurban Ali, Defendant No. 1, the son of Usmani Begam,resisted the execution proceedings claiming that he was the sole owner of the house by virtue of a deed of gift from Usmani Begam, dated the 26th January 1915. The plaintiff was accordingly ordered to establish his title to a share in the house by a regular suit. Hence the suit which has given rise to this appeal.
3. The only point which we have to consider in second appeal is whether the suit is not barred by limitation. The lower appellate Court found that the suit was barred by limitation. Usmani Begam undoubtedly purchased the whole house on the 29th November 1904, and was given possession of the whole house as auction-purchaser. It is true that on the findings of the Courts below she was not entitled to bring to sale the whole house in execution of her decree against Mumtazunnissa only, since the latter had only a share in the house. Nevertheless, Usmani Begam did in fact purchase the whole house and got possession thereof, and in these circumstances her possession can only be considered as adverse to Sajjad Husain, who was entitled as an heir of Irshad Husain to 7/l6ths share in the house.
4. The suit for partition which was brought by the plaintiff in 1916, does not affect the question of limitation, because Usmani Begam, against whom the suit was brought had already transferred her entire interest in the house to Qurban Ali on the 26th January 1915, before the partition suit was instituted. The Court below finds, therefore that Usmani Begam was in adverse proprietary possession of the whole house from the 29th November 1904 and she transferred her rights to Qurban Ali on the 26th January 1915, and the latter has been in adverse possession ever since. The only question is whether one person who is in adverse possession of immovable property without title can tack on to his period of adverse possession the period of another person from whom he derives title who has previously been in adverse possession without title. In the present case, Usmani Begam must be regarded in the light of a trespasser in regard to the plaintiff's share and she transferred her rights to Defendant No. 1, who has been in possession ever since. In the case of Ram Piari v. Budhsain AIR 1921 All 389 the previous ruling in the case of Babu Ram v. Banks Behari Lal (1906) 3 ALJ 424 was approved in which it was held that if a period of possession of a trespasser and his predecessor-in-title who is also a trespasser extended over a period of 12 years, he acquired an absolute title to the property of which he had thus been in possession. In short the tacking of the periods of possession by two successive trespassers is permissible where one derives title from the other as in the present case. That ruling is applicable to the case before us, and we therefore agree with the Court below that the suit was barred by limitation and dismiss the appeal with costs'.