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PETITIONER: HINDUSTAN LEVER LTD.

       Vs.

RESPONDENT: B.N. DONGRE

DATE OF JUDGMENT17/08/1994

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) AHMADI, A.M. (J) DAS, SUDHI RANJAN (CJ) RAMASWAMY, K. SAHAI, R.M. (J)

CITATION:  1995 AIR  817            1994 SCC  (6) 157  JT 1994 (4)   599        1994 SCALE  (3)529

ACT:

HEADNOTE:

JUDGMENT:                            ORDER 1.The  appellants  are  the  defendants.   One   Murthuza Hussain Sahib, the 2nd plaintiff and his brother Nawab Basha @ Syed Badrajjalami Hussain Sahib under partition deed dated 4-12-1952, Ex.  A-2 partitioned the properties and Item Nos. 1 and 2 of the ancestral property fell to the share of  Syed Murthuza Hussain Sahib.  The partition deed recites thus:               "The  share  of  properties  allotted  to  the               respective  person, shall be enjoyed  by  them               with   absolute  right  and  freedom   thereto               undisputedly    from    this    day    onwards               hereditarily  from  son to grandson  and  with               powers of effecting gift, sale and alienation,               one individual shall have no right in  respect               of   properties   belonging   to   the   other               individual." Ever since they have been in possession and enjoyment of the property.   The 2nd plaintiff by an oral gift  settled  Item No.  1 to the Ist plaintiff.  When the appellants  attempted to trespass into the land on 6-1-1968, the respondents filed suit  on 4-7-1968 for declaration of title and for  recovery of  possession.   The trial court dismissed  the  suit.   On appeal, the District Judge, Madurai in AS No. 358 of 1975 by its judgment and decree dated 7-7-1977 reversed the judgment and  decree  of the trial court and decreed the  suit.   The High  Court in S.A. No. 1640 of 1977 by judgment and  decree dated  9-8-1978  dismissed  the second  appeal.   Thus  this appeal by special leave. 2.It  is  contended  by Mr G.  Viswanatha  lyer,  learned Senior Counsel for the appellants that the property  belongs to Badralam Sahib and the appellants, the 5th defendant  and defendants 3 and 4 are the daughters of Syed Badralam  Sahib

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son of Babjan Sahib.  Defendants 1 and 2 are the husbands of defendants  3 and 4. The property belonged to  Babjan  Sahib and  the  respondents have no title to the  property  unless they established the title through Babjan who is claimed  to be the owner of the property.  The declaration of title  and possession  of the property is clearly illegal.  We find  no force  in the contention.  It is seen that in the  partition deed,  Ex.  A-2 there is a clear recital of  the  properties which admittedly form part of ancestral property.  There  is also  a clear recital that they separated the  property  and thereafter the properties continued to be in possession  and enjoyment  of  the  respective  parties.   Thereby  Murthuza Hussain  Sahib  had the properties allotted  to  his  share. Thereafter  he remained in possession and enjoyment till  he parted with possession of Item No. 1 by a gift given to  the 1st  respondent,  his daughter and second item  in  his  own possession.   Admittedly, the suit was filed on 4-7-1968  by which date more than 16 years have passed and he remained to be in uninterrupted possession and enjoyment in assertion to his  own  right as an owner having obtained the  same  under partition  deed, Ex.  A-2.  Thereby he had possessory  title right  from 1952 till date of the suit.  The declaration  of title thereby given is clearly legal.  It is found that they were  in  possession of the property and were  enjoying  the same by lease out etc.  It is 157 also  found by the District Judge and affirmed by  the  High Court  that the appellants trespassed the property  on  6-1- 1968.   The  plea  of  adverse  possession  set  up  by  the appellants has been negatived.  The assertion that they have the  title by adverse possession is found false because  the learned  District  Judge and the High Court found  that  the trespass was for the first time on 6-1-1968 and the suit was filed  on  4-7-1968.   Therefore, the  question  of  adverse possession  does not arise.  Under these circumstances,  the decree  granted by the appellate court and affirmed  by  the High  Court  is perfectly legal.  It does  not  warrant  any interference.   The  appeal is  accordingly  dismissed.   No costs. 160