Lalita Devi and Others vs Syed Aquil Ahmad and Others

Mungeshwar Sahoo, J.—The defendant No. 8 Ram Nagina Singh was the original appellant. On his death during the pendency of this first appeal his legal representatives have been substituted. Likewise the respondent No. 1 Bibi Hasbun Nisha who was plaintiff No. 1 also died and her legal representatives have been substituted. The first appeal was filed by the original defendant No. 8 against the judgment and decree dated 13.3.1998 passed by Sri Raghuraj Singh, the learned 2nd Additional Subordinate Judge, Bhagalpur in Title Suit No. 140 of 1974 decreeing the plaintiff respondents'' suit for declaration of title and recovery of possession over the suit land and for declaration that the order passed u/s 145 Cr.P.C. proceeding is erroneous and illegal. The plaintiff respondent Nos. 1 and 2 filed the aforesaid Title Suit No. 140 of 1974 for declaration of title and recovery of possession over the suit property alleging that the holding No. 14 ward No. 5 circle No. 7 measuring about 6 kattha 12 dhurs and 11 dhurkies of land comprised within plot Nos. 8377 and 8378 belonged to one Rahim Bux. The said Rahim Bux had one son namely Wali Ahmad and a daughter Bibi Ayasha. By amicable settlement between the said Wali Ahmad and his sister Bibi Ayasha 2 kattha 2 dhurs 5 dhurkies land in the western portion of plot No. 8377 was allotted in favour of Bibi Ayasha and the remaining land measuring 4 kattha 10 dhurs 6 dhurkies comprised within plot No. 8378 and eastern portion of plot No. 8377 i.e. the entire eastern portion to the land of Bibi Ayasha remained in possession of her brother Wali Ahmad but there was no separate holding. The lands of Wali Ahmad i.e. 4 kattha 10 dhurs 6 dhurkies along with his other lands were sold in civil court decree which was purchased by one Soukhi Mandal who was decree holder. His name was recorded in the municipality along with Bibi Ayasha in holding No. 18. There was litigation between the decree holder and Wali Ahmad for setting aside the sale and a compromise was arrived at between the heirs of Soukhi Mandal and Wali Ahmad wherein Wali Ahmad paid the decreetal amount to the decree holder after borrowing the money from his daughter Bibi Zaibun Nisha and the sale of 4 kattha 10 dhurs 6 dhurkies of plot No. 8377 and 8378 and others were set aside. Subsequently, Wali Ahmad sold the said land measuring 4 kattha 10 dhurs 6 dhurkies of plot Nos. 8377 and 8378 and 1 kattha 17 dhurs 8 dhurkies land of plot No. 8374 to his daughter Bibi Zaibun Nisha by registered sale deed dated 30.10.1934. The name of Bibi Zaibun Nisha was mutated along with Bibi Ayasha in the holding which was then numbered as holding No. 19 in the year 1949-50. In 1958-59 the holding number was changed to 22 from 19 and only the name of Bibi Zaibun Nisha was recorded and by mistake name of Bibi Ayasha was left. However, Bibi Zaibun Nisha was entitled to be recorded with respect to only 4 Kattha 10 dhurs 6 dhurkies. Thereafter Bibi Zaibun Nisha sold the said purchase land measuring 4 kattha 10 dhurs 6 dhurkies of plot No. 8377 and 8378 to Alimuddin by registered sale deed dated 5.8.1958. This sold property has been described in Schedule B of the plaint.

The further case is that the purchaser Alimuddin sold his purchase land measuring 4 kattha 10 dhurs 6 dhurkies to Bibi Hasbun Nisha, the plaintiff No. 1 by registered sale deed dated 28.10.1958. Her name was mutated in place of Bibi Zaibun Nisha which was then holding No. 22. The father of defendant No. 1 namely Washi Ahmad also purchased 1 kattha 17 dhurs 8 dhurkies land from Bibi Zaibun Nisha by registered sale deed dated 17.7.1948 which was comprised within holding No. 18 and subsequently he sold to Bibi Kulsum by registered sale deed which was then holding No. 21. In the year 1938 Bibi Ayasha applied before the municipality for reconstruction of wall with respect to her property measuring 2 kattha 2 dhurs 5 dhurkies in plot No. 8377 which was then holding No. 16 (old) and new holding No. 18 and licence was granted. When the father of defendant No. 1 forcibly started making construction over the plaintiff''s land on holding No. 22, 145 Cr.P.C. proceeding was initiated with respect to 3.5 kattha land comprised within eastern portion of holding No. 22 within plot No. 8378 and eastern portion of plot No. 8377. This property has been mentioned in Schedule A of the plaint. The father of defendant No. 1 during the pendency of 145 Cr.P.C. proceeding filed partition suit being Title Suit No. 76 of 1967 and in that title suit he did not claim the suit land which was also the subject matter of 145 Cr.P.C. proceeding. The possession of the defendant was declared in the said proceeding. During the proceeding the crop of the land was sold for Rs. 56 and further settled for cultivation for 1 year at Rs. 275/- which was deposited in treasury. The plaintiff was entitled for the same also. Therefore, the plaintiffs filed the suit.

The defendant No. 6 filed supporting written statement. The defendant No. 8 filed the contesting written statement. His case in short is that Rahim Bux had 1 son and 2 daughters namely, Wali Ahmad, Bibi Ayasha and Kaniz Fatima. In the partition, Bibi Ayasha was allotted 8 kattha land in Urdu Bazar bearing old holding No. 1. Kaniz Fatima was allotted the properties in Katni Kole and Wali Ahmad was allotted the properties bearing present holding No. 21 and 22. Wali Ahmad remained in possession of old holding No. 14 re-numbered as holding No. 22 measuring 6 kattha 12 dhurs 11 dhurkies besides other properties. Bibi Ayasha never came in possession over any portion of old holding No. 14 new holding No. 22. The sale of 4 kattha 10 dhurs 6 dhurkies of plot Nos. 8377 and 8378 in civil court decree was admitted and the sale by Wali Ahmad to his daughter was also admitted. According to the defendant Wali Ahmad sold municipal plot Nos. 8453, 8374, 8377, 8378 which was comprised within different holdings including holdings No. 22 and 21. After partition the name of Bibi Ayasha was removed from municipal record of right with respect to holding No. 14 which was re-numbered as 19 and then new holding No. 22. Bibi Ayasha had no right title interest therein. Bibi Zaibun Nisha sold holding No. 18 which was renumbered as holding No. 21 by municipal plot No. 8374 to his brother Washi Ahmad by registered sale deed dated 17.7.1948. He was mutated after purchase. Holding No. 22 is adjacent to south and west of holding No. 21. Holding No. 22 consists of municipal plot No. 8377 and 8378 and part of plot No. 8380 having total area of 6 kattha 12 dhurs 11 dhurkies. Out of the said 6 kattha 12 dhurs 11 dhurkies Bibi Zaibun Nisha had purchased only 4 kattha 10 dhurs 6 dhurkies but fraudulently she got her name mutated in the municipality with respect to entire 6 kattha 12 dhurs 11 dhurkies. She had sold 4 kattha 10 dhurs 6 dhurkies to Alimuddin who in turn sold the same to his sister-in-law Bibi Hasbun Nisha, plaintiff No. 1 by registered sale deed dated 28.10.1958. The remaining 2 kattha 2 dhurs 5 dhurkies out of 6 kattha 12 dhurs 11 dhurkies remained in possession of Wali Ahmad and after his death in the year 1940 his heirs continued in possession. The sons and daughters of Wali Ahmad relinquished their interest in favour of Washi Ahmad and Bibi Zaibun Nisha who remained in possession thereof and they sold to this defendant by registered sale deed dated 24.6.1969 being holding No. 21 measuring 1 kattha 7 dhurs 5 dhurkies and part of holding No. 22 measuring 2 kattha 10 dhurs by two registered sale deeds dated 24.6.1969 and 26.4.1971. After purchase the defendants came in possession thereof. The other allegations have been denied in the written statement.

On the basis of the aforesaid pleadings of the parties the learned court below framed the following issues.

i. Is the suit as framed maintainable ?

ii. Has the plaintiffs got any cause of action for the suit ?

iii. Is the suit bad for mis-joinder of parties ?

iv. Is the suit barred by limitation, principles of waiver, acquiescence and estoppel ?

v. Have the plaintiffs got perfect title over the suit property and are they entitled for recovery of possession ?

vi. To what relief or reliefs, if any, are the plaintiffs entitled ?

After trial the learned court below came to the conclusion that plaintiffs have title over the suit property since they have been dispossessed after the order u/s 145 Cr.P.C. they are entitled to recover possession from the defendant No. 8 and accordingly decreed the suit with costs against the defendant No. 8.

The Learned Counsel Mr. Ramosh Jha appearing on behalf of the appellant submitted that even the case of the plaintiff is believed that Ayasha was given 2 kattha 2 dhurs 5 dhurkies in plot No. 8377 then how the plaintiffs are in possession of the entire land measuring 6 kattha 12 dhurs 11 dhurkies. In fact the said land measuring 2 kattha 2 dhurs 5 dhurkies was not the land of Ayasha as in the partition she was not allotted any land rather after selling 4 kattha 10 dhurs 6 dhurkies the remaining land was in possession of Wali Ahmad but the learned court below without considering this fact misunderstood the case and decreed the plaintiffs'' suit. The father of defendant No. 1 had purchased the said land from Washi Ahmad who was the owner of the said property after death of Wali ahmad because the other sons and daughters of Wali Ahmad had relinquished their interest in favour of Washi Ahmad and Bibi Zaibun Nisha. The Learned Counsel further submitted that the trial court has not properly considered the evidences documentary as well as oral and has wrongly decreed the plaintiffs'' suit. On these grounds, the Learned Counsel submitted that the impugned judgment and decree are liable to be set aside.

On the other hand, the learned senior counsel Mr. Raghib Ahsan submitted that in this case the appeal can be decided only on the question of law because the plaintiffs'' case has been admitted by the defendant appellant himself in the written statement therefore, the appeal has got no merit. The learned court below considering the evidences produced by the plaintiffs has rightly decreed the plaintiff''s suit. No doubt the appellant also claimed that he has purchased the land from Washi Ahmad but no where he stated that he has purchased any part of the land which has been purchased by the plaintiffs rather it is admitted case of the plaintiff that Wali Ahmad sold 4 kattha 10 dhurs 6 dhurkies to Bibi Zaibun Nisha who in turn sold it to Alimuddin who in turn sold to Bibi Hasbun Nisha, the plaintiff No. 1. There is no case that the defendant No. 1''s father ever purchased this land of the plaintiff. Moreover, the father of defendant No. 1 earlier filed partition suit in the year 1976 but he never claimed this land. On this ground, the Learned Counsel submitted that this first appeal is liable to be dismissed with cost.

In view of the above facts and circumstances and contentions of the parties, the only point arises for consideration is as to whether the plaintiffs have been able to prove their title over the suit property and whether they are entitled for recovery of possession thereof.

In support of their respective cases the parties have adduced evidences. It will be futile here to repeat the case of the parties. However, in short it may be mentioned here that the plaintiffs prayed for declaration of right, title over the suit property measuring 3.5 kattha of plot No. 8378 and the eastern portion of plot No. 8377 bearing holding No. 22 to be the part of purchased land of the plaintiffs measuring 4 kattha 10 dhurs 6 dhurkies bearing plot No. 8377 and 8378. On the contrary, the case of defendant regarding the purchase of plaintiff from Alimuddin is not disputed in paragraph 14 of the written statement of defendant No. 8. It has been clearly admitted that Bibi Zaibun Nisha had purchased 4 kattha 10 dhurs 6 dhurkies of holding No. 22 only which was sold by her to Alimuddin by sale deed dated 5.8.1958 who in turn sold it to plaintiff No. 1 by registered sale deed dated 28.10.1958.

PW 1 to 3 are formal witnesses. PW 4 has fully supported the case of the plaintiffs. He has stated that Ayasha was allotted 2 kattha and odd in amicable partition with her brother Wali Ahmad in holding No. 22. The western portion of holding No. 22 was allotted to Ayasha and eastern portion remained in possession of Wali Ahmad. Wali Ahmad sold 4 kattha 10 dhurs 6 dhurkies in favour of Zaibun Nisha in 1934 and nothing was left thereafter to Wali Ahmad. Zaibun Nisha sold holding No. 21 to Washi Ahmad. The suit land measuring 3.5 kattha is part of holding No. 22 which was the subject matter of 145 Cr.P.C. proceeding. PW 6, 8, 10, 11 have all stated about the possession of the plaintiffs. PW 7 is formal witness.

So far documentary evidences are concerned the plaintiffs have filed the rating list of Bhagalpur Municipality of the year 1933-34 which has been marked as Ext.-5. It appears that at that time the holding number was 18 which was recorded in the name of Soukhi Mandal and Bibi Ayasha. This holding No. 18 corresponds to new holding No. 22. Ext.5-A is assessment list for the year 1943. At that time the holding was 19. It was recorded in the name of Bibi Zaibun Nisha and Ayasha. Ext.5-B is assessment list of the year 1958-59 which shows that the name of Bibi Zaibun Nisha has been mentioned regarding holding No. 22. The assessment list of the year 1949-50 has been marked as Ext.5-C which shows the name of Bibi Zaibun Nisha and Bibi Ayasha both. Ext.6 is khata which shows that the holding No. 14 was recorded in the name of Rahim Bux. It may be mentioned here that it is admitted case of the parties that the properties belonged to Rahim Bax along with other properties. It is evident from Ext.6-B another khatiyan which shows that Rahim Bux had other properties.

Ext.2-B is the sale deed dated 30.10.1934 executed by Wali Ahmad in favour of his daughter Bibi Zaibun Nisha which shows that he sold his properties to Bibi Zaibun Nisha including the suit property comprised within plot No. 8377 and 8378. Ext. 2-A is sale deed executed by Bibi Zaibun Nisha in favour of Syed Salimuddin and Ext.2 is the sale deed executed by Syed Salimuddin in favour of plaintiff No. 1. In all these sale deeds 4 kattha 10 dhurs and 6 dhurkies land of plot No. 8377 and 8378 belonging to Wali Ahmad was transferred. In the sale deeds the holding No. 19 corresponding to holding No. 22 has been mentioned. From the above documentary evidences it becomes clear that originally the property was recorded in the name of Rahim Bux and subsequently it was recorded in the name of Soukhi Mandal along with Ayasha and then it was again recorded in the name of Bibi Zaibun Nisha and Ayasha. However, in the year 1958-59 the name of Ayasha was left.

The plaintiffs have filed the plaint of Title Suit No. 76 of 1968 to show that the suit land was not claimed by the defendant in that partition suit. From perusal of Ext.4 the map it appears that the suit land is part of holding No. 22. Ext. 8 is licence granted by Bhagalpur Municipality for construction of wall. From perusal of Ext.-10 which is 145 Cr.P.C. proceeding it appears that the subject matter was the portion of holding No. 22. From perusal of the plaint it appears that the father of defendant Nos. 1 and 2 did not claim land of holding No. 22.

The supporting defendant No. 6 has filed the sale deed Ext. A-6 to prove that he is in possession of the land of Ayasha measuring 2 kattha 2 dhurs 5 dhurkies. These are the overwhelming evidences produced by the plaintiffs.

On the contrary, as stated above the case of the defendant is not contrary to the claim of the plaintiffs. In the written statement he has clearly admitted that Wali Ahmad sold 4 kattha 10 dhurs 6 dhurkies to his daughter Bibi Zaibun Nisha out of plot No. 8377 and plot No. 8378. The remaining land measuring 2 kattha 2 dhurs 5 dhurkies was the land of Ayasha which was in western portion of plot No. 8377. The plaintiffs are not claiming declaration of title with respect to the property of Ayasha. So far the purchase by plaintiff is concerned there is no dispute. The defendant never claimed that any portion of the property sold by Bibi Zaibun Nisha to Alimuddin and then plaintiff was purchased by him. His case is that he had purchased the rest land from the original owner Washi Ahmad because after selling the property measuring 4 kattha 10 dhurs 6 dhurkies Wali Ahmad was continuing in possession of the rest land. On his death the said property was left out after sale devolved on Washi Ahmad because the sons and daughters of Wali Ahmad relinquished orally in favour of Washi Ahmad and Washi Ahmad sold the same to father of defendant No. 1 and during 145 proceeding the defendant No. 8 has purchased the said property. Therefore, there is no dispute regarding the identity of the land purchased by each party.

The Learned Counsel for the appellant submitted that the plaintiffs are in possession of entire 6 kattha 12 dhurs 11 dhurkies of holding No. 22. If Ayasha was allotted 2 kattha and odd then what happened to the property. So far this submission is concerned the defendant No. 6 has filed the sale deed to prove that he is in possession of the property of Bibi Ayasha. Moreover, the plaintiff never claimed that his title be declared over the land which has been purchased by the plaintiff.

Considering the above facts and circumstances of the case it appears that the plaintiffs have clearly established their case by adducing cogent evidences oral as well as documentary evidence. There purchase is never disputed by the defendant appellant nor it is the case of the defendant appellant that he purchased any portion of the plaintiffs land from Washi Ahmad. It is well settled principles of law that by relinquishment title will not pass to anyone. The defendants appellant''s case is that the sons and daughters of Wali Ahmad relinquished their share in favour of Washi Ahmad who in tern sold the same to the father of defendant No. 1. So far this case is concerned as stated above title will not be vested by oral relinquishment. Moreover since the plaintiffs are not praying for declaration of title with respect to the other properties except what they have purchased it is not desirable to give any finding whether defendant have acquired any title with respect to the properties which has been purchased by them from Washi Ahmad. As stated above it will not be out of place to mention here that the defendant never claimed that the plaintiffs are in possession of more property than purchased or any portion of his purchase property is in possession of plaintiff.

In view of my above discussion, I find that the plaintiffs have got right, title, interest in the suit property. The finding of the learned court below on this point is therefore hereby confirmed. The point is accordingly, answered against the appellant and in favour of the respondent. Thus, this first appeal is dismissed with costs of Rs. 10,000/- to be paid by the appellant to the respondents within two months from today. If the amount of cost is not paid, the plaintiffs shall be entitled to recover the same through the process of Court.