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PETITIONER: ABUBAKAR ABDUL INAMDAR (DEAD)BY LRS. AND OTHERS.

       Vs.

RESPONDENT: HARUN  ABDUL INAMDAR AND OTHERS

DATE OF JUDGMENT30/08/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. FAIZAN UDDIN (J)

CITATION:  1996 AIR  112            1995 SCC  (5) 612  JT 1995 (7)   179        1995 SCALE  (5)87

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  having arisen  from the Judgment and order of the  Bombay High  Court relates  to two  properties which belonged to  one Syed  Abdulla Inamdar. On his death, he was succeeded by  six children;  four of  whom are  sons and two daughters. The eldest son is Abubakar.      On the  death of Syed Abdulla, agricultural lands which were Inams  in his  hands, were  assigned to  Abubakar,  the eldest son,  by  certain  orders  passed  by  the  Ruler  of Kolhapur as  Inams of  two kinds. It is the admitted case of the parties  that these  Inams were  impartible and  had  to devolve upon  the eldest  son by  the rule of primogeniture. The other  property was  a dwelling  unit which was owned by Sayed Abdulla and remained in possession of abubakar.      On the abolition of the ‘Inams’ under the provisions of the  Bombay  Merged  Territories  Miscellaneous  Alienations Abolition Act,  1955, Abubakar was regarded as a Watandar on re-grant of the properties. His brothers and sisters, on the one  side  ,laid  claims  to  those  lands  as  co-heirs  of Abubakar, taking  the plea  that by  virtue of  inheritance, they had a share in that property; the bar of impartiability and the  rule of  primogeniture having  gone. Regarding  the house property,they  laid claims  to partition  it as heirs. Abubakar resisted  the suit  by laying claim that the landed properties which  were erstwhile  ‘Inams’ became on re-grant ‘personal’in his hands and therefore the other heirs of Syed Abdulla had no share in those. Regarding the house he put up the plea  of adverse  possession, even  though, avowedly, he had a  will in  his favour  from his father. The trial court partly decreed  the suit  against him  insofar as  the  Inam lands were  concerned but  dismissed the suit insofar as the house was  concerned; and the lower appellate court affirmed that decision.  Before the High court the appeal of Abubakar as also  the cross-objections  on the  contrary were allowed with  the   result  that  the  entire  suit  stood  decreed,

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rejecting the  claim of  Abubakar of  the Inam  lands  being personal  to   him  and  the  house  being  in  his  adverse possession, maturing in his ownerships.      We have  heard Mr.  Ganpule, learned senior counsel for the appellant-Abubakar,  at great  length and pointedly with regard to  the nature  of regrant after the abolition of the Inam. It  stands conceded by him that the terms of the grant are not in any manner peculiar to the facts emerging in this case but  rather are  the usual  ones which  find mention in such grants.  He was  frank enough to concede before us that had the  parties been  Hindus then the two decisions of this Court, namely,  (i) Nagesh  Bisto Desai etc. etc. vs. Khando Tirmal Desai  etc. [1982  (3)SCP 341];  and  (ii)  Annasaheb Bapusaheb Patil  and others  vs. Balwant  (dead) by  lrs and heirs and  others [1995  (2) SCC  543] would have taken over the field  to hold  that the  properties in the hands of the Watandar were joint family properties and partible after the re-grant .  He tried in vain to convince us that principally it would  make a difference if the parties were Mohammedans, as presently they are. If we come to analyse the proposition canvassed,  Syed   Abdulla’s  estate  should  normally  have devolved upon his six children in accordance with the shares as defined  by the  Shariat Law.  But, since  the properties were Inams  and Impartible and the services to the Ruler due from the  members of  the family  were expected  to be taken from the  eldest son  by the rule of primogeniture, then the heirs of Syed Abdulla, even though not forming a joint Hindu family as  is known  to Hindu Law, would still be a group of people, the representative of which was Abubakar in order to hold the  Inam. Once  that Inam  was abolished  and re-grant given to  Abubakar, impartibility of the estate vanished and thus this  group of people were definitely entitled to claim their respective  shares  in  accordance  with  the  law  of Sharfat. All  the three  courts below have taken such a view and we see no impelling reason to draw a line of distinction qua the  aforesaid two  cases  in  Nagesh  Bisto  Desai  and Annasaheb Bapusaheb  (supra) so as to carve out an exception to the  principle for Mohammedans. The prime reason for such interpretation is  that the  Ruler while drawing up the Inam initially and conferring it again on Abubakar did not intend to create  any  distinction  between  his  subjects,  be  it Muslims or  Hindus. Uniformity  of tradition  in that regard would be  a good  rule of  reason so as to set the matter at rest here.      With regard  to the  plea of  adverse  possession,  the appellant having been successful in the two courts below and not in  the High  Court, one has to turn to the pleadings of the appellant in his written statement. There he has pleaded a duration of his having remained in exclusive possession of the house,  but nowhere has he pleaded a single overt act on the basis  of which it could be inferred or ascertained that from a  particular  point  of  time  his  possession  became hostile and  notorious to  the complete  exclusion of  other heirs, and  his being  in possession openly and hostilely.It is true  that some evidence, basically of Municipal register entries, were  inducted to  prove the point but no amount of proof can  substitute pleadings  which are the foundation of the claim  of a  litigating party. The High Court caught the appellant right at that point and drawing inference from the evidence  produced   on  record,   concluded  that   correct principles relating  to the  plea of adverse possession were not applied  by the courts below. The finding, as it appears to us,  was rightly  reversed by the High Court requiring no interference at our end.      For the  foregoing reasons,  there is  no merit in this

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appeal which is hereby dismissed. No costs.