Hoshiyar Khan vs Smt. Bittan

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the parties.

This is plaintiff''s Second Appeal arising out of Original Suit No.65 of 1983 which was dismissed on 12.11.1986 by IV Additional Munsif, Jhansi. Against the said decree plaintiff-appellant filed Civil Appeal No.7 of 1987 which was dismissed on 12.5.1987 by II Additional District Judge, Jhansi hence this Second Appeal.

Original plaintiff-appellant and defendant respondent no.1 were real brother and sister. Their parent were Ghafoor Khan and Rahiman. Respondent no.2 -Sattar Khan was husband of defendant-respondent no.1. All the parties have died and have been substituted by their sons/legal representatives. The suit was filed for eviction from a house. In the plaint plaintiff stated that the house belonged to him and he had given the same on licence to defendant-respondent no.1 - Smt. Bittan. However, in the oral evidence plaintiff admitted that the house belonged to his late father Ghafoor Khan. Smt. Bittan pleaded that house belonged to Ghafoor Khan who gave the same to his wife Smt. Rahiman and she executed a registered Gift Deed of the same in her favour on 25.8.1971. However, defendant no.1 neither alleged nor proved that in what manner house was given by Ghafoor Khan her father to her mother Smt. Rahiman.

Smt. Bittan did not examine herself as witness. Her husband defendant no.2 appeared as witness. An argument was raised by the plaintiff before the Trial Court that adverse inference must be drawn against the defendants as defendant no.1 asserted that Gafoor Khan had given the house in dispute to Rahiman and she alone could prove it but she was not examined. In this regard courts below held that plaintiff could not take benefit of weakness of the case of the defendants.

5.This Second Appeal was admitted on 21.8.1987 on question no.2 stated in the memorandum of appeal which is quoted below:

Whether the plaintiff is not the owner of the suit property?

As plaintiff admitted that the house in dispute belonged to his late father hence there was no question of his being its exclusive owner. As far as the case of defendant no.1 that Ghafoor Khan gave the house to his wife Rahiman is concerned, she did not state that in what manner this transaction was brought into existence. Neither it was stated that some written sale deed or gift deed was executed nor it was stated that it was orally gifted. Moreover in this regard her husband could not be a competent witness as statement given by him in this regard was merely a hear say (something which he might have heard from his wife).

Accordingly, both the parties i.e. original plaintiff and original defendant no.1 and other heirs of Ghafoor Khan if any inherited the house in dispute. Thereafter both plaintiff and defendant no.1 were co-sharers. There is no question of grant of licence by one co-sharer to another co-sharer. A co-sharer cannot seek eviction of other co-sharer. The only remedy of plaintiff was/is to sue for partition.

Accordingly, the substantial question of law is decided partly in favour of the appellant and it is held that plaintiff-appellant is co-owner of the suit property. However, one co-owner cannot seek eviction of other co-owner hence suit was rightly dismissed.

Second Appeal is therefore dismissed.