AIR 2020 MADHYA PRADESH 30
AIROnline 2019 MP 1386
(INDORE BENCH)
Sabbir Khan (Deceased) through L. Rs. and others v. Sher Mohmmad and others.
S. A. No. 421 of 2001,
D.15-10-2019.
(A) Specific Relief Act (47 of 1963), Ss. 34, 38- Suit for declaration and perma- nent injunction Defendants, brothers of plaintiff claiming share in suit property – Plaintiff purchased suit property in name of his father Plaintiff was in possession of suit property since 23 years with out any interruption-Plea by defendants that said property was purchased from joint family income- There is no such concept of joint family property in Muslim law- Moreover, defendants were minor and had no source of income at time of purchase of property-Failure of defendants to prove that they contributed for purchase of property Defendants had no share in suit property during lifetime of their father- Suit rightfully decreed in favour of plain- tiff. (Para 10)
(B) Specific Relief Act (47 of 1963), Ss. 34, 38-Prohibition of Benami Property Transactions Act (45 of 1988), S. 3 (As inserted by Act 43 of 2016) – Limitation Act (36 of 1963), Arts. 64, 65-Suit for decla- ration and permanent injunction – Raising multiple pleas Pleas of Benami Transaction and adverse possession over suit property When plea of Benami transaction has been disbelieved or not examined then plaintiff cannot be denied to take plea of adverse possession to render him remedy less for protection of possession. (Para 15)
(C) Specific Relief Act (47 of 1963), Ss. 34, 38-Limitation Act (36 of 1963), Art. 65- Suit for declaration and permanent injunction Plaintiff filing suit against his own father claiming title by adverse possession Plaintiff purchased suit property in name of his father Plaintiff denied title of his father and claiming him- self to be owner of suit property Defendants contending that possession of plaintiff cannot be regarded as adverse but mere permissive possession Possession of plaintiff becomes adverse possession when it was within knowledge of his father but never objected by him – Father deposing that he demanded partition of suit property at instance of defendants i.e. his sons Father never disputed possession of plaintiff for more than 12 years Father admitted plaintiff as actual owner and in exclusive possession of suit property Plaintiff became owner of suit property by virtue of adverse possession Suit decreed in favour of plaintiff, proper. (Paras 12, 13, 14, 15)