Imambi v. Khaja Hussain Alias Khajasab

The Judgment of the Court was delivered by

Nesargi, J.:— Imambi, who was plaintiff in O.S No. 47 of 1967 on the file of the Civil Judge, Raichur, has preferred this appeal. Respondent-3-defendant-3 Yelgatti Hanumappa is the contesting respondent. He died during the pendency of this appeal and his L.Rs have been brought on record.

2. Khaja Hussain respondent-1 defendant-1 is the husband of the plaintiff. Khajabi Respondent-2 defendant-2 is the mother of defendant-1.

3. The suit properties are lands in Survey Nos. 165 and 166 of Anwari village, Lingsugur Taluk, Raichur District, commonly called as Rai Sakruppana Hola.

4. The plaintiff prayed for declaration that she is the owner of the suit lands; that the sale deed dated 28-4-1966 (Ex. D.2) executed by defendants 1 and 2 in favour of defendant No. 3 selling these suit lands to defendant-3 is illegal, null,—void and in-operative and not binding on her; and for permanent injunction, restraining the defendants from interfering with her possession of the suit lands.

5. The undisputed facts are that the suit lands originally belonged to one Biamma w/o Alamsab. Their son was Bavasab-husband of defendant-2. Bavasab pre-deceased Biamma. Biamma gifted the suit lands to defendant-1, the son of Bavasab and defendant-2. The marriage of defendant-1 was performed on 19-4-1958. One of the terms of agreement at that time was that the suit lands were to be given to the plaintiff as prompt dower. On 28-4-1966 defendants 1 and 2 executed sale deed Ex. D.2 selling the suit lands to defendant-3.

6. Defendant-1 has filed his written statement denying executing Ex. D.2 along with defendant-2 in favour of defendant-3. He has sailed with plaintiff in regard to all the plaint averments made by him.

7. Defendant-3 contended that plaintiff was a minor when her marriage with defendant-1 was performed and was incapable of giving any consent in regard to dower and in fact the suit lands were not given to her either as dower or in lieu of dower and even if it is taken that they were given to her, such transfer is hit by the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the ‘Act’). His further contention is that defendant-1 had right, title and interest to sell the lands to him and he has executed Ex. D2 and put him in possession of the suit lands. He has been in possession throughout.

8. The Trial Court raised the following issues for consideration:

1) Whether the plaintiff proves that the suit lands were given to her in lieu of Mehar by the 1st defendant on 19-4-1958?

2) Whether the 1st defendant was competent to so give the lands to her?

3) Whether Biamma had consented to that transfer and it was a valid consent?

4) Whether the alleged transfer is invalid for want of registration?

5) Whether the plaintiff is in possession of suit lands?

6) Whether the suit is properly valued and within jurisdiction?

7) Whether the suit is maintainable in view of suit No. 32/1 of 1968 on the file of the Munsiff Lingsugur being withdrawn?

8) What order or relief?

Additional issue No. 1:

Does plaintiff prove that she is married with defendant No. 1?

Additional Issue No. 2:

Whether plaintiff proves the execution of sale deed dated 28-4-1966 by the defendant Nos. 1 and 2 in favour of defendant No. 3?

9. Plaintiff examined herself as PW-1 and eight witnesses on her behalf. PW-3 is the Vakil who acted as such during the marriage between plaintiff and defendant-1. PW-5 is the khaji who performed the marriage and maintained the record (Ex. P. 4). PW-7 Rajesab is the father of the plaintiff who was present, according to him, during the marriage and speaks of the terms of agreement. Rest of the witnesses are also examined to establish the marriage and the dower or Mahr agreed upon. Defendant-3 has examined himself as DW-2. He has examined 3 more witnesses D.Ws 1, 3 and 4 in order to prove the sale transaction in his favour.

10. The Trial Court has concluded that the suit lands were given by defendant-1 to the plaintiff in lieu of dower or Mahr. Defendant-1 was in law competent to give the same to the plaintiff as he had got title to the suit lands being the donee of Biamma and that the transfer of the lands in favour of plaintiff is valid though the transfer is not by registered document. It has held that the plaintiff had not established that she was in possession of the suit lands on the date of the suit. Lastly it has held that the execution of the sale deed by defendants 1 and 2 in favour of defendant-3 has been satisfactorily established and the plaintiff has to fail as transfer in her favour is hit by Section 47 of the Act.

11. Sri B.S Raikote, the Learned Advocate appearing on behalf of plaintiff urged that the Trial Court is not correct in understanding the provisions of Section 47 of the Act and also in concluding that the plaintiff had failed to establish her possession of the suit lands on the date of the suit.

12. On the other hand Sri V.T Rayaraddy, Learned Advocate appearing on behalf of defendant-3 vehemently argued that the transaction in favour of plaintiff is hit by Section 17 of the Indian Registration Act, and therefore, plaintiff cannot claim title to the suit lands and that as the transfer in favour of plaintiff amounts to permanent alienation, the Trial Court is right in applying Section 47 of the Act. In this very connection he contended that the plaintiff had not established satisfactorily that the lands were given to her either as dower or in lieu of dower at the time of her marriage. He lastly argued that the finding of the Trial Court in regard to possession of the suit lands by the plaintiff as on the date of the suit, is to be sustained as it is supported by sound reasoning.

13. There is not much dispute in so far as the marriage between plaintiff and defendant-1 is concerned. The same is satisfactorily proved through the evidence of P.W 7 father of the plaintiff; PW-5 Khazi who performed the marriage and PW-3 the Vakil, the trial Court has believed the evidence of these witnesses. We find no reason to disbelieve the evidence of these witnesses.

14. The argument of Sri V.T Rayaraddy, is that the execution of ‘sianama’ is not proved as the evidence suffers from various infirmities. He has pointed out that the name of the Vakil is not shown in Ex. P. 4 and he has not signed it as a witness. The witnesses who are signatories to Ex. P. 4 are not examined and that the signature alleged to be that of the plaintiff is of no consequence because she was admittedly a minor at that time.

15. PW-5 is the Khazi, who is a person mainly concerned in the marriage. He has maintained the register of which Ex. P. 4 is a part. He has sworn to its contents and to his signature below it. He has also sworn to the signature of PW-7 the father of the plaintiff. He has stated that PW-3 and other witnesses have also affixed their signatures as identified by him. PW-3 has sworn to the same effect. The fact that Ex. P. 4 does not disclose the name of any Vakil representing, defendant-1 cannot in any way go against the witnesses. Even if it be taken that no such Vakil had been appointed to act on behalf of defendant-1, the signature of defendant-1 is available in Ex. P. 4, is spoken to by PW-5. Ex. P. 4 shows that PW-1 was 22 years old on the date of marriage viz., 19-4-1958. Sri V.T Rayaraddy, argued that as per the evidence of P.Ws 7 and others, the difference in the ages of plaintiff and defendant-1 was three years or so. When Ex. P. 4 shows the age of plaintiff as 12 years, he urged that defendant-1 would have been a minor on the date of marriage. Expanding this argument further, he urged, that defendant-1 was incompetent to enter into any agreement regarding dower and give the suit lands to the plaintiff as dower or in lieu of dower.

16. The argument of Sri V.T Rayaraddy, in regard to the minority of defendant-1 at the time of his marriage cannot at all be entertained by us as the facts on which this argument is based are not pleaded in the written statement of defendant-3. Sri Rayaraddy, proceeded on the premise that the facts relied upon are available in the evidence of the plaintiff's witnesses and therefore this argument is sustainable. Even if it be so, it is clear that the fact relied upon is the version that the difference in the age of plaintiff and defendant-1 was about 3 years. That oral version is contradicted by what is found written in Ex. P. 4 itself. The contents of Ex. P. 4 have been satisfactorily established through the evidence of P.Ws 3, 5 and 7. Therefore, we reject this argument and hold that defendant-1 was 22 years old at the time of his marriage with plaintiff.

17. The next question for consideration is whether the suit lands were given to the plaintiff as dower or in lieu of dower and whether such a transfer in favour of the plaintiff requires registration as per the provisions under Section 17 of the Indian Registration Act.

18. Ex. P-4 is in Urdu, Its English Translation is furnished. The relevant words, in this behalf, appear in column No. 10 as follows:—

“Amount of Dower in coins whether prompt or deferred dower:

Sy. No. 165, 15 acres 20 guntas, situated at Anwari Tq. Lingsugur.

Sy. No. 166, 28 acres 23 guntas, situated at Anwari, Tq: Lingsugur, two lands given in lieu of Dower prompt dower.”

It is clear that amount of dower in coins is not mentioned. It is also clear that the suit lands were given to the plaintiff to meet the dower debt. Whether the words ‘in lieu of dower’ would in the circumstances be of special significance and import is to be considered in the light of various decisions rendered by various High Courts while dealing with this aspect of the matter of registration and the question whether such transfer is simple gift (hiba) or ‘hiba-bil-iwaz’ or sale. The principle that under Mahomedan law, dower is an obligation imposed upon the husband as a mark of respect to the wife has been accepted by all the High Courts. It is well settled that dower or Mahr can be in law recovered by the wife concerned by instituting an action in law as if it was a debt due to her. Hence it follows that the obligation to pay dower to his wife that Mahomedan law imposes on a husband gives rise to a debt in favour of his wife. Dower in law can be prompt or deferred. If it is prompt that obligation is to be discharged at the time of the marriage. If it is deferred it is to be discharged when the specified event occurs and on demand made by the wife. It is well settled that dower or Mahr can be in cash or in kind.

19. In case dower or Mahr is agreed to be paid in cash and it is prompt dower, no question of registration arises in regard to such terms of agreement. In case dower is fixed in kind such as immovable property the question of registration arises as transfer of such property is required to be made by the husband in favour of his wife. Such transfer arises out of the obligation already referred to. It is in this background that the words ‘in lieu of dower’ have been gone into by the various High Courts under, given set of facts and circumstances.

20. Though decisions date back to years earlier to 1948, we would be adverting to decisions rendered by the High Courts from the year 1948 onwards as all these decisions have taken into consideration the decisions rendered earlier by the High Courts in this Country.

21. In Jaitunbi v. Fatrubhai . AIR 1948 Bombay 114. Lokur J. has laid down that assignment of land by the bridegroom to the bride in lieu of mahr at the time of marriage is in the nature of gift and no writing is necessary for the validity of the gift since Section 129 of the Transfer of Property Act exempts a gift by a Mahomedan from the provisions of that Act and that the gift would be complete and valid if the three ingredients viz., offer, acceptance and delivery of possession are satisfied. The relevant agreement in regard to the dower was as follows:

“Certified…. that marriage was celebrated by the gift of a piece of land at Deolali, Ahmednagar District, in lieu of Mahr of Rs. 2,500.”

His Lordship has expressed as follows:

“In my opinion, when at the time of the marriage a land is assigned by the bridegroom to the bride in lieu of mahr, the assignment is a simple gift (hiba), and neither a sale nor a hiba-bil-iwaz. No writing is necessary for the validity of such a gift, since Section 129, T.P Act, exempts a gift by a Mahomedan from the provisions of that Act, but such a gift is subject to the doctrine of Mushaa, and the gift would not be complete and valid without delivery of such possession as the subject of the gift is susceptible of.”

22. In Mohammad Usman v. Amir Main . AIR 1949 Patna 237. a Division Bench of the Patna High Court has concluded that oral gift by husband of immovable property in lieu of dower, is sale and not hiba-bil-iwaz and does not pass title. It has held that such a sale can be effected only by registered deed. The relevant fact before their Lordship was that Nazar Ali the husband had made an oral gift of his share in the properties to Mt. Shahzadi, his wife, in lieu of her dower debt. What is plain is pre-existence of dower debt and the transfer of his interest in immovable property made by the husband was in discharge of that debt.

23. A Full Bench of the Allahabad High Court has in Ghulam Abbas v. Razia Begum . AIR 1951 Allahabad 86. held that an oral transfer of immoveable property worth more than Rs. 100/- in lieu of dower-debt exceeding Rs. 100/- is a transaction which is neither a gift nor a combination of gifts which can be made orally and it is a sale which can be effected by means of a registered instrument only. In this case the contention of the concerned wife was she was in possession of the suit house in her own right under an oral gift in lieu of Rs. 2500/- which was part of her dower, while her dower amounted to Rs. 15,000/-. Here again it is plain that the oral gift was said to have been made to discharge a part of the pre-existing dower debt. The decision in Jaitunbi's case is not adverted to.

24. A Division Bench of the Hyderabad High Court in Mohammed Hashim v. Aminabi . AIR 1952 Hyderabad. has considered all the earlier decisions rendered by the various High Courts, including Jaitunbi case, but has not considered Ghulam Abbas case. While considering Jaitunbi's case in paragraph 8, it is excerpted as follows:

“When at the time of the marriage, a land is assigned by the bridegroom to the bride in lieu of ‘mehar’ the assignment is a simple gift and neither a sale nor ‘Hiba’.”

We are afraid there appears to be a printing mistake as the excerpt ought to have read as follows:

“When at the time of the marriage, a land is assigned by the bridgegroom to the bride in lieu of ‘mehar’ the assignment is a simple gift (Hiba) and neither a sale nor Hiba-bil-iwaz.”

The principles in Jaitunbi's case has been fully accepted.

25. A Division Bench of the Madras High Court has in Masum Vali Saheb v. Illuri Modin Sahib . AIR 1952 Madras 671. laid down as under:

“A transfer of immoveable property by a Muhammadan husband in favour of his wife for her dower debt does not involve two reciprocal gifts but is only one contract. The hiba bill iwaz so called in India is a sale within the meaning of Section 54 and unless made by a written instrument, duly registered, will not convey title to the person, in whose favour such a conveyance is made. Consequently an oral conveyance of immovable property worth more than Rs. 100 by a Muhammadan husband in favour of his wife in lieu of her dower is not valid.”

The decision in Jaitunbi's case is not adverted to. The decision in Mohammad Usman's case has been considered and accepted as laying down the correct law. The facts before the Division Bench were that a site was owned by Kasim Peeran and his brothers. In a division amongst the brothers a portion of the site was allotted to him. He built the suit house on that portion of the site. In order to discharge his dower debt he transferred the house he had so built in favour of his wife Basiri Bibi, who in turn sold the house in or about the year 1941. It is plain that an orai gift was made by Khasim Peeran in favour of his wife Basir Bibi in discharge of a pre-existing dower debt.

26. It is well settled that payment of prompt or deferred of dower, may be, in cash or in kind, to be made by the husband to his wife, at the time of the marriage is a pious obligation cast on the husband by Mahomedan Law. This obligation makes such dower a debt due to the wife, which she can claim as permitted by law.

27. In the case on hand dower settled was prompt in nature, as is clear from column 10 in Ex. P. 4. It was to be paid at the time of the marriage itself and not in lieu of a pre-existing debt. The case of the plaintiff was that in fact it was paid by giving the suit land to her and putting her in possession of the same. That is also the evidence adduced by her. The question is: whether this way of transferring the suit lands in her favour is hit by the provisions of the Registration Act. According to the plaintiff the transfer was by way of oral gift in accordance with the principles of Mahomedan Law. The argument against this is that when the transfer is in lieu of dower, it ought to have been by way of a document and such document becomes compulsorily registerable. It is in this context the words ‘in lieu of dower’ occurring in Column 10 of Ex. P. 4 assumed importance.

28. We have already pointed out that prompt dower was not fixed in cash and that part in column 10 is left blank. Only the suit lands are mentioned as dower in column 10. The words ‘in lieu of dower’ are to be understood in this context. The evidence of P.Ws 3, 5 and 7 is to the effect that it was settled that the lands were to be gifted by defendant No. 1 to plaintiff as dower. Therefore, we have no hesitation in concluding on facts that dower was fixed in kind i.e immovable properties, which are the suit lands. It was not fixed in cash so as to bring into existence a dower debt in discharge of which transfer of the suit lands either by way of gift or otherwise was agreed upon at the time of the marriage. Hence defendant-1 was saddled with the obligation of paying prompt dower to the plaintiff by giving the suit lands to her as the suit lands were specified to be the requisite dower agreed upon. This takes us to the question of the nature of the transfer of the property in question viz. the suit lands to the plaintiff. There is no consideration involved. There is no promise in question. There is no acceptance of the promise in question. What should be the dower is settled because of the pious obligation cast by the Mahomedan Law on defendant-1 and that obligation is to be met. The transfer is not for consideration. It cannot in law be anything other than the simple gift. All the ingredients of Section 122 of the Transfer of Property Act are satisfied. Therefore, the transfer is in law to be considered as by way of gift i.e pure and simple ‘Hiba’ under Mahomedan Law. Hence, so far as the facts of this case are concerned, we respectfully agree with the principles laid down in Jaitunbi's case and approved by the Hyderabad High Court in Mohammed Hashim's case. With due respect to the learned Judges, we record our inability to agree with their reasoning contained in the other decisions, laying down to the contrary cited in the preceding paragraphs.

29. The evidence of P.Ws 3, 5 and 7 and other witnesses go in support of the averments made by defendant-1 in his written statement. This material very much supports the case of the plaintiff that defendant-1 orally gifted the suit lands as dower to the plaintiff at the time of their marriage. At this stage one more aspect falls for consideration, because of the lands having been owned by Biamma.

30. Plaintiff's case is that Biamma orally gifted the suit lands to defendant-1, at the time of the marriage itself and defendant-1 having accepted the gift in turn gifted the same to her. Sri Rayaraddy pointed out that such a case is not pleaded in the plaint, but is found only in the evidence. When it is averred in the plaint that defendant-1 was competent to make this gift to the plaintiff, the fact making him competent need not be averred in the plaint and thus the facts can very well be brought on record by way of evidence. Therefore, the objection is not sustainable, when principle in understanding the law of pleadings are applied. Defendant-3 himself, has in his evidence made out that Biamma had gifted the suit lands to defendant-1. That admission though not conclusive evidence by itself in proof of the gift by Biamma in favour of defendant 1 is weighty evidence in support of the evidence relied upon by the plaintiff. Therefore, we agree with the trial Court that the plaintiff has established that defendant-1 was competent to gift the suit lands to her as dower.

31. This takes us to the important question of possession, as one of the ingredients of gift becoming absolute under Mahomedan Law is acceptance and delivery of possession which the subject of the gift is susceptible of. We have concluded that at the time of marriage, the plaintiff was a minor, aged about 12 years. Defendant-3 has made out a case that defendant-1 was himself in possession of the suit lands till the time of Ex. D.2-sale deed in his favour. Ex. D.14 is the copy of the plaint in O.S No. 64/1 of 1964 on the file of the Munsiff Lingsugur. That was a suit filed by defendant-1 against Syed Hussainsab for declaration of his ownership of the suit lands and injunction. Ex. D.15 is a copy of the decree, decreeing the said suit. This material, though neither defendant-3 nor plaintiff was party to the suit, goes in support of the contention of defendant-3 that defendant-1 himself was in possession of the suit lands. Exs. D-4 and D 5 are pahanis of the suit lands for 1964-1965 and 1965-1966. These disclose that the lands originally stood in the name of Biamma and thereafter the name of plaintiff has been mutated. The cultivation column discloses for the year 1964-1965 one Syed Hussainsab, apparently the defendant-1 in Ex. D.14, while in the year 1965-1966 plaintiff herself were cultivating the lands. Ex. P. 2 and Ex. P. 3 are to the same effect. In fact Exs. P. 2 and P. 3 go a step further and show that in the year 1966-1967, the suit lands were cultivated by the plaintiff herself. Ex. P. 1 is the certified extracts of the mutation entry made in favour of the plaintiff on 2-2-1966 as owner of the lands by virtue of having got the same for her dower. These facts have been totally overlooked by the Trial Court while considering issue No. 5 in paragraph 32 of the judgment. The suit has been filed on 12-9-1967. Revenue records show that even for the agricultural year 1965-1966 plaintiff was in cultivation and possession of the suit lands. The question is who was in possession for the agricultural year 1967-1968. In this connection it is to be noted that the name of defendant-3 has come to be mutated on 24-9-1967 as disclosed by Ex. D.13 and apparently it is long after the suit has been instituted. His name has not appeared any where in the revenue records as being even remotely connected with the suit lands till 24-9-1967. This aspect of the matter has been lost sight of by the Trial Court. It is in this light we have to proceed to draw the conclusion on Issue No. 5 viz., possession of the plaintiff the only conclusion possible on these facts and circumstances is that the plaintiff was in possession and cultivation of the suit lands for the agricultural year 1966-1967 and also must have been in cultivation and possession of the suit lands even on the date of the suit. Possession of defendant-1 during the minority of the plaintiff and even for a little time after her attaining majority, can in law be regarded as only he being in possession on behalf of the plaintiff. Therefore, we hold that the plaintiff has succeeded in proving issue No. 5 in her favour.

32. It is on the basis of the conclusions reached in the preceding paragraphs that this Court has to decide as to what reliefs the plaintiff is entitled to. The oral gift by defendant-1 in favour of plaintiff accompanied by delivery of possession to the plaintiff and other requirements of gift under Mahomedan Law are satisfactorily established. Thereafter defendant-1 did not in law retain any right, title or interest in the suit lands. Therefore, the transfer by defendant-1 to plaintiff by way of gift is complete and is permanent. The words ‘permanent alienation’ are defined in Section 2(1)(0) of the Act as follows:—

“(o) ‘permanent alienation’ includes any sale, exchange or gift and any transfer of a right of occupancy or of the patta of a holding but does not include any disposition by will.”

As defendant-1 has been found to have lost his right, title and interest in the suit lands, once for all in favour of plaintiff because of the gift he has made of the same to her. We conclude that the ingredients of ‘permanent alienation’ are satisfied. Section 47 of the Act reads as follows:—

“47. (1) Notwithstanding anything contained in any other law for the time being in force or in any decree or order of a Court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Collector:

Provided that the Collector may declare a permanent alienation or any other transfer of agricultural land to be valid if the permanent alienation or transfer took place before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954 and possession of the land transferred was given to the vendee before such commencement if application for sanction is made within one year after such commencement.

(2) Applications for such previous sanction shall be made and disposed of in accordance with such procedure as may be prescribed”

Exemptions provided by Section 50A of the Act — to which cases under Section 47 of the Act would not be applicable-do not at all apply to the facts and circumstances of this case. Therefore, it is to be held as laid down by this Court in Manikappa v. Gurappa . 1964 Supplement Mys. L.J 451. and Totappa v. Kalappa . 1970 1 Mys. L.J 16. that this gift being without sanction of the Collector is not valid. We are aware that in Eararama v. Parwatamma . 1971 2 Mys. L.J 179. the law laid down in Manikappa's case is held as not good law in view the decision of the Supreme Court in (1969) 3 SCC 120 : A.I.R 1970 SC 546. But that aspect relates only to the impact of Section 47 of the Act on Section 53A of the Transfer of Property Act. It is not held that the proposition of law referred to is no longer good law.

33. Section 47 of the Act says that such permanent alienation shall not be valid. That means that such permanent alienation shall be invalid. In the context that the words are used the meaning is to be as laid down in Jones v. Bank of Gumming . 63 SE 36, 40. as follows:—

“The word “invalid” as applied to a contract does not always mean an absolute nullity, for a contract may be so imperfect as not to be enforceable, but not such an absolute nullity that it cannot be perfected.”

(Vide Words & Phrases - Permanent Edition - West Publishing Co. Volume 22A)

Hence we hold that absolute title in favour of Imambi did not pass by virtue of this gift. But at the same time we make it clear that Imambi has been continuously in possession apparently from the date of gift, and even till the date of suit under such an invalid title. That cannot in law make her a trespasser. As absolute title has not passed in her favour, the relief of declaration that she is the owner of the suit lands cannot be granted to her, but her possession under such circumstances does entitle her to the relief of injunction.

34. The other relief of declaration, sought by the plaintiff, to the effect that Ex. D.2 in favour of defendant-3 is not valid in law, null and void and not binding on her is based on the relief of declaration of title in her favour. Moreover, this relief calls for consideration of the provisions of the Karnataka Land Reforms Act, as they were in force on 28-4-1966 the date of Ex. D.2 Restrictions of transfer of agricultural lands is subject of Chapter V of the Karnataka Land Reforms Act, as in force then. Whether those restrictions had or had not been violated was to be decided exclusively by the authorities constituted under that Act. Even as the Karnataka Land Reforms Act stands now, the jurisdiction of the Civil Courts in this behalf is excluded. Hence that aspect of the matter cannot be gone into in this appeal by us. Therefore, the plaintiff is not entitled to this relief. The question is to be left open to be decided by the authorities having jurisdiction.

35. In view of the foregoing, we allow this appeal and set aside the judgment and decree passed by the trial Court on 17-12-1974 in O.S No. 47 of 1967 and decree the suit of the plaintiff only to the extent of granting her permanent injunction restraining the defendants from interfering with her possession. We make it clear at this stage that defendant-3 is at liberty to agitate his rights and in case he succeeds in establishing his title, to take suitable action for taking possession of the suit lands from the plaintiff.

In the facts and circumstances of this case, we direct each of the parties to bear its own costs throughout.