Man Mohan Saw and Another vs Muhammad Husain Khan and Others

Ross, J.—This is an appeal by the defendants in a suit brought by the plaintiffs for recovery of possession of one bigha of land forming part of the compound of 1heir house in Muradpur. The plaintiffs allege that they and the pro forma defendants are the heirs of Nasir Nawab and that they are entitled to the land in suit. There was a case u/s 145 of the Criminal Procedure Code which was decided in favour of the defendants, and the plaintiffs, therefore, brought this suit for recovery-of possession of the land. In the written statement it is alleged that Bibi Munirunnissa, the second wife of Nasir Nawab, left a son and two daughters who were necessary parties. The shares of the plaintiffs in the property were also disputed. It is further alleged that the disputed land had been in cultivating possession of the defendants since 1871 and that their possession had been declared by the Criminal Court in a proceeding u/s 145, Criminal Procedure Code, on the 3rd of July 1916; and that they had been granted a lease by a registered deed from Bibi Munirunnissa of the land in suit on the 14th of July 1916.

The Munsif disbelieved the alleged settlement in 1871 and the receipts, produced by the defendants. With regard to the lease granted by Bibi Munirunnissa, he went into the question of the status of that lady but seems to have left the question open, observing that "one cannot be definite on the point in the absence of the particular evidence required by Muhammadan l,aw to prove the marriage." He also seems to have held that, what ever might have been the legal effect of a lease granted by her, this particular lease remained a lease on paper only and was never followed by possession and was a collusive act. He gave the plaintiffs a decree for confirmation of possession. The learned Subordinate Judge on appeal also disbelieved the settlement in 1871 and the receipts. In dealing with the settlement by Munirunnissa he considered the question of her status. His finding is to the effect that there was no evidence of actual marriage, and, even if there had been, the marriage it could not have been valid in law. His finding is thus much more definite than the Munsif''s. He further held that the lease was executed in order to create evidence and did not confer any title, and that the defendants were not in possession of the land.

It is now contended, in the first place, that the decision in the case u/s 145, Criminal Procedure Code, being in the appellant''s favour on the question of possession and their possession being confirmed by the lease of 1916, the onus was on the plaintiffs to show that they had no possession and that the plaintiffs had both title and possession. Reference was made to the decisions in Lillu v. Annaji Parashram 5 B. 387 : 3 Ind. Dec. 255 and Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani 29 C. 187 : 29 I.A. 24 : 6 C.W.N. 385 : 12 M.L.J. 83 : 4 Bom. L.R. 167 : 8 Sar. P.C.J. 224 (P.C.) as showing that the decision of the Criminal Court in a case u/s 145 is conclusive of the fact of possession and that the fact thus established remains. The judgments of the Courts below are not altogether precise on this point. The Munsif''s decree was for confirmation of possession. The Subordinate Judge, although he did not vary the decree, evidently thought that it should have been a decree for recovery of possession. On the facts found as to the defendant''s want of title and possession except under the decision in the case u/s 145, Criminal Procedure Code, such a decree is correct.

In the second place, it is argued with regard to the title of the appellants, first, that no issue was framed as to the marriage of Munirunnissa and that the suit should be remanded for a decision on this point after framing an issue. I do not think that the fact that no issue was raised necessitates a remand of the case. If the defendants wanted an issue on the question -of marriage, they should have taken it. The questions that they put in issue in their written statements'' were questions of parties and the shares. These questions indirectly raised the question of the status of Munirunnissa and evidence was gone into on both sides. The fact that no issue was framed was not material; the defendants cannot say that they were taken by surprise. Secondly, it is argued that Munirunnissa was acknowledged as his wife by Nasir Nawab and that this is proof of marriage. Reference was made to the case of Bibee Fazilatunnessa v. Bibee Kamarunnessa 9 C.W.N. 352. I do not see how that decision helps the appellants. All that was decided there was that, "unless there is an absolute bar or impediment to a valid marriage, acknowledgment has the effect of the legitimation according to Muhammadan Law where either the fact of the marriage or its exact time with reference to the legitimacy of the child''s birth is a matter of uncertainty." The law is stated more fully in Syed Habib''ur Rahman Chywdhury v. Syed Altaf Ali Chowdhury 60 Ind. Cas. 837 : 33 C.L.J. 479 : 40 M.L.J. 510 : 19 A.L.J. 414 : 23 Bom. L.R. 636 : (1921) M.W.N. 366 : 48 I.A. 114 : 29 M.L.T. 354 : 14 L.W. 175 : 26 C.W.N. 81 : 48 C. 856 : AIR (1922) (P.C.) 159 (P.C.), and under the rule in that case the finding of fact by the Subordinate Judge that there could not have been a valid marriage disposes of the acknowledgment as proof of marriage--see also the judgment of Mahmood, J., in Muhammad Allahdad Khan v. Muhammad, Ismail Khan 10 A. 289 : 6 Ind. Dec. (N.S.) 193 and Liaqat Ali v. Karimunnissa 15 A. 396 : A.W.N. (1893) 167 : 7 Ind. Dec. (N.S.) 973. Although, in my opinion, for the purposes of the present litigation in which the question of the marriage of Munirunnissa arises only incidentally, the decision might equally well have been given as the Munsif gave it without definitely coming to any conclusion on the point, the findings of the Court below cannot be disturbed on the ground pi the Muhammadan doctrine of acknowledgment.

Finally, it is argued that the appellants took settlement from Munirunnissa as a co-sharer landlord and, therefore, acquired a non-occupancy right. Reference was made to Binad Lal v. Kalu Pramanik 20 C. 708 : 10 Ind. Dec. (N.S.) 477, but that decision can have no application where it is found that there was no real settlement of the land by Munirunnissa.

All the grounds urged in this appeal, therefore, fail. The decree of the Court below is modified by making it a decree for recovery, and not for confirmation of possession and with this formal modification of the decree the appeal is dismissed with costs.