http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (civil)  2038-2041 of 2008

PETITIONER: JAITHOON BI AND ORS

RESPONDENT: P.A. KANNISAMY REDDIAR AND ORS. ETC

DATE OF JUDGMENT: 12/03/2008

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: JUDGMENT O R D E R

CIVIL  APPEAL  NOS. 2038-41   OF 2008 [Arising out of SLP(C) Nos.8593-8596/2004]

       Delay condoned.         Leave granted.         Heard the learned counsel appearing on behalf of the appellants. Learned counsel  for the appellants very fairly states that his client is interested only in the 8 cents out  of 48 cents of land in Survey No.224 qua the 1st respondent in the civil appeal arising  out of S.L.P.(C) No.8593/2004 and not in other matters.         Kannisamy Reddiar - the first respondent herein filed a suit, which was marked as  O.S. Nos. 711/82, against one Sheikh Mehboob and others, claiming title in respect of  the land in question. Another suit was filed by Sheikh Mehboob which was marked as  O.S. No. 146/86 wherein the said Kannisamy Reddiar, the first respondent herein was  the defendant.  

       Although we are not directly concerned but keeping in view the stand taken by the  learned counsel appearing on behalf of the appellants, we may notice that the said  Sheikh Mehboob also filed a suit against one Mariam Bi and another.  The appeal  against the judgment passed therein, however, does not survive as the appellant has  accepted the judgment of the First Appellate Court deciding the same in favour of  Mariam Bi.

       Appellants claimed title through the said Sheikh Mehboob who is the son of John Bi.    The properties in suit is said to be belonging to Moongali Ammen Temple  Devasthanam. It filed a suit against John Bi, mother of Sheikh Mehboob and four  others, praying for eviction from the suit land.  A compromise was entered into  therein in terms whereof the defendants became entitled to continue to possess the suit  land on payment of Rs. 336 to the Devasthanam. Allegedly, it was John Bi alone who  paid the entire amount and it was on that basis that she, and through her Sheikh  Mehboob, had been claiming the ownership of the entire 48 cents of the land.      

       The  learned Trial Judge noticed that Respondent No.1 purchased 8 cents of land  from one Wahab Sahib by a Deed of Sale dated 29.12.1960, who in turn had  purchased the same from one Sheikh Ameer Sahib on or about 1.2.1956.

       The learned Trial Judge, however, found that the said Deeds of Sale do not appear  to have any bearing on the suit property.  The said finding was affirmed by the High  Court.  However, the High Court, in our opinion, rightly came to the conclusion that  even in the said O.S. No.43/62 not only the 48 cents of land but the claim of the  Devasthanam Temple was in respect of 10 acres of land.  However, the said O.S. No.  43/62 was confined to 48 cents of land which had been in possession of John Bi, Ameer  Sahib and three others.                    There appears to be some demise of the temple properties by the trustees in favour  of various persons.  The said lessees started asserting titles in thereabout.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

       However, even if the claim of the lessees that they had acquired title by adverse  possession had not found favour by the Trial Judge, evidently, in view of the fact that  John Bi alone had signed the compromise and not others, the only course open to her  was to file an Execution Application for execution of the said decree.

       The High Court noticed that even if the title of the temple had been accepted,  having regard to the fact that the First Appellate Court, as noticed hereinbefore,  found that Mariam Bi was entitled to 12 cents of land because her predecessor was a  party to the previous suit in O.S. No. 43/62.  But despite the fact that the first  respondent and his vendor also claimed independent title, his suit was dismissed.  

       The High Court, therefore, in our opinion rightly held: \023No doubt if Jan Bi has taken such a stand at the time of passing of  the decree in O.S. No. 43 of 1962 she could have stepped into the  shoes of the plaintiff and executed the decree by recovering  remaining 28 cents from other defendants in the suit. She could have  also immediately filed a suit for recovery of balance of 28 cents from  other defendants in the suit of it was open to her to insist upon the  contribution for the payment made by her to the decree holder,  namely the temple from other defendants. But, she has not chosen to  do any of these things. Therefore, the result is John Bi/s possession  for 20 cents is legitimized by virtue of the compromise decree and so  also the possession of other defendants in the suit. Therefore, Jan Bi  could not claim any extent other than 20 cents claimed by her in the  suit because she has not recovered possession from other defendants.  Other defendants continued to be in possession and the temple never  asserted its titled in respect of other defendants also and it has  recognized and legitimized the possession of other defendants by  virtue of the compromise decree. Therefore, it is rightly pointed out  by the appellants that Jab Bi has become entitled only to 20 cents  out of 48 cents and therefore, the remaining extent continued to be  in possession of other defendants under whom Kanniswamy Reddiar  and Mariam Bi have claimed.\024   

       Apart from the fact that Mariam Bi’s title in respect of 12 cents of land stands  accepted now, we do not see any reason as to why the same yardstick should not have  been applied in the case of the first respondent.         We may also place on record that on a query made by us, learned counsel  categorically stated that since 1962, John B. or for that matter Sheikh Mehboob had  not taken any steps to take possession of the properties in question from respondent  No.1 or his vendor.        

       For the reasons aforementioned, we do not find any merit in this appeal which is  dismissed. However, since nobody has appeared on behalf of the  respondents, there  shall be no order as to costs.