ABUBAKAR ABDUL INAMDAR (DEAD) BY LRS. AND ORS.versusHARUN ABDUL INAMDAR AND ORS.

A      ABUBAKAR ABDUL !NAMDAR (DEAD) BY LRS. AND ORS.
                                         v.
                   HARUN ABDUL !NAMDAR AND ORS.

                                AUGUST 30, 1995

B         [MADAN MOHAN PUNCHHI AND FAIZAN UDDIN, JJ.)

         Bombay Merged Tenitories Miscellaneous Alienations Abolition Act,
    1955:

C          Muslim Law-Succession-!namdar-Death-lmpmtible Inam lands
    devolving on eldest son by Rule ofp1imogeniture-Abolition of Inams-Eldest
    son regarded as a Watandar on re-grant-Claim by other brothers and sisters
    as· co-sharer-Held pennissible.

          Adverse possessi01t-f'leadings-Held no amount of proof can sub-
D stitute pleadings.

           The dispute in this appeal relates to two properties which belonged
    to one S. On his death agricultural lands which were Inams and impartible
    in nature devplved upon his eldest son A by the Rule of primogeniture. The
    other property was a dwelling unit which remained in possession of A.
E
    Subsequent to the abolition of loams under the Bombay Merged Ter-
    ritories Miscellaneous Alienations Abolition Act, 1955, A was regarded as
    a Watandar on re-grant of the properties. The brothers and sisters of A
    filed a suit claiming share in agricultural land as co-heirs and sought
    partition of house property as heirs. The Trial Court decreed their suit in
F   respect of loam lands, but dismissed the same in respect of the house
    property. The Appellant Court affirmed the decision of the Trial Court.
    The High Court decreed the entire suit. It rejected the claim of A that loam
    lands became'personal' in his hands or regrant as well as the plea of
    adverse possession taken by him with regard to the house property.
G   Against the decision of the High Court an appeal was preferred before this
    Court.

          Dismissing the appeal, this Court

          HELD : 1. Estate of S should normally have devolved upon his
H   children in accordance with the shares as defined by the Shariat Law. But
                                        172
                    A.A. INAMDAR v. H.A. !NAMDAR                         173

since the properties were Inams and impartible and the services to the          A
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 S, 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 A in order to hold
the Inam. Once that Inam was abolished and re-grant given to A, impar-
tibility of the estate vanished and thus this group of people were definitely
                                                                                B
entitled to claim their respective shares in accordance with the law of
Shariat. There is no impelling reason to draw a line of distinction qua the
two cases in Nagesh Bisto Desai* and Annasaheb Bapusaheb** 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 loam      C
initially and conferring it again on A did not intend to create any distinc-
tion 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. [175-B-E]

      *Nagesh Bisto Desai Etc. Etc. v. Khando Tinnal Desai Etc. [1982) 3 D
SCR 341; ** Annasaheb Bapusaheb Patil and Ors. v. Balwant (dead) by Lrs.
and heirs and Ors. (1995] 2 SCC 543, relied on.

      2. It is true that some evidence, basically of Municipal register
entries, were inducted to prove the point of adverse possession but no          E
amount of proof can substitute pleadings which are the foundation of the
claim of a litigating party. The finding relating to the plea of adverse
possession was rightly reversed by the High Court. [175-G-H; 176-A]

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2750 of
~n.                                                                             F
    From the Judgment and Order dated 11th August, 1976 of the
Bombay High Court in Appeal No. 298 of 1970.

      V.N. Ganpule and A.M. Khanwilkar for the Appellants.
                                                                                G
      B.N. Naik, Arnn Mohan, S.V. Tambwekar, Krishan Mahajan, M.
P.H. Parekh and Ms. Shefali Z. Fazal for the Respondents.

      The following Order of the Court was delivered :

      This appeal having arisen     from the judgment and order of the          H
    174'                  SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   Bombay High Court relates to two properties which belonged to one Syed
    Abdul 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 assigned
    to Abubakar, the eldest son, by certain orders passed by the Ruler of
B   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.

c          On the abolition of the 'Inams' under the provisions of the Bombay
    Merged Territories Miscelaneous Alienations abolition Act, 1955,
    Abubakar was regarded as a Watandar ori 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
D
    having gone. Regarding the house property, they laid claims to partition it
    as heirs. Abubakar resisted the suit by laying claim that the landed proper-
    ties which were erstwhile 'lnams' 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,
E   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
    disrnissed 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 of his opponents were taken up
F   together. The appeal of Abubakar was dismissed and the cross-objections
    on the contrary were allowed with the result that the entire suit stood
    decreed, 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.

G         We have heard Mr. Ganpule, learned senior counsel for the appel-·
    lant-Abubakar, at great length and pointedly with regard to the nature of
    re-grant after the abolition of the lnam. 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.
H   He was frank enough to conced before us that had the parties been Hindus
                   AA. INAMDAR v. H.A. INAMDAR                         175

then the two decisions of this Court, namely, (i) Nagesh Bisio Desai Etc. A
Etc. v. Khando Timwl Desai Etc., [1982] 3 SCR 341 and (ii) Annasaheb
Bapusaheb Patil and Others v. Ba/want (dead) by Lrs. and heirs and Others,
[1995] 2 sec 543 would have taken over the field to hold that the proper-
ties in the hands of the Watandar were joint family propertil!s and partible
after the re-grant. He tried in to convince us that principally it would make
                                                                              B
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 service to the Ruler due from the members of the family
were expected to be taken from the eldest son by the rule of primogeniture,  c
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 ground of people were definitely entitled to D
claim their respective shares in accordance with the law of Shariat. 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 from such inter-
pretation is that the Ruler while drawing up the Inam initially and confer- E
ring 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 F
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. partf.ular point of G
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 H
    176                  SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A   produced on record, concluded that correct principles relating to the plea
    of adverse possession were not applied by the courts below. The findings,
    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 appeal which is
B hereby dismissed. No Costs.
    T.N.A.                                                  Appeal dismissed.