MD NOOMAN Vs. MD JABED ALAM

JUDGEMENT

(1.) A finding on the question of title recorded in a suit for eviction would how far be binding in a subsequent suit for declaration of title and recovery of possession between the same parties This is the question that arises for consideration in this appeal. The answer to the question would depend on, in what manner the question of title was raised by the parties and how it was dealt with by the court in the eviction proceedings. Ordinarily, it is true, in a suit for eviction even if the court goes into the question of title, it examines the issue in an ancillary manner and in such cases (which constitute a very large majority) any observation or finding on the question of title would certainly not be binding in any subsequent suit on the dispute of title. But there may be exceptions to the general rule and as we shall find presently, the case in hand seems to fall in that exceptional category of very limited number of cases.

(2.) Amina Khatoon, the mother of respondent Nos. 1-4, (who were substituted in her place and brought on record after her death) instituted a suit for eviction (Title Suit No. 36 of 1973) in the Court of Second Munsif, Arrah, against Md. Lukman, the father of appellant Nos. 1-6 (who were similarly substituted in his place and brought on record after his death). According to the plaintiff Amina Khatoon, the suit property originally belonged to her mother-in-law, Sulakshana. Sulakshana had two other sons, Md. Lukman (the original defendant) and Md. Jan, apart from Aminas husband, Mahmood Hassan. Amina further claimed that Sulakshana sold the suit house to her through a registered sale deed dated August 13, 1957. Following the purchase of the suit house, she moved the Block Development Officer (BDO) and the municipality for mutation of her name in respect of the suit house in the revenue and municipal records. The defendant Md. Lukman, filed an objection before the BDO, but his objection was disallowed and her name was entered in the revenue and municipal records. Later on, the municipality filed a suit against her for arrears of tax whereupon all the outstanding dues of tax were paid by her. It was further the case of Amina, that she had let out the suit house to the defendant about 4 or 5 years prior to the filing of the suit on a monthly rent of Rs. 10.00 (rupees ten only). The defendant did not pay the rent from September, 1971 to February 13, 1973. She then sent a registered notice to him Under Section 106 of the Transfer of Property Act, 1882 through her lawyer determining the defendants tenancy and asking him to vacate the house by March 31, 1973. The defendant did not vacate the house forcing her to go to the court.

(3.) The defendant in his written statement, apart from the formal objections to the maintainability of the suit, denied that Sulakshana executed any sale deed with respect to the suit house in favour of the plaintiff. He described the sale deed, relied upon by the plaintiff as the basis of her title, as a forged and fabricated document. In this connection, the defendant stated that Sulakshana had an attack of paralysis before August 13, 1957 when the sale was said to have been executed by her. She had lost her senses and she was not in a position to execute any sale deed. No consideration was paid by the plaintiff to Sulakshana and the title to the house never passed to her. The defendant set up a rival claim of title over the suit house. He stated that Sulakshana had transferred the suit house in his favour in 1950, by Hiba (oral gift) and since then he was coming in possession of the suit property. Originally, it was parti (vacant) land. He submitted a plan in the municipality for construction of the house on it and constructed the house after the plan was sanctioned. He was living in the house constructed by him over the land which was given to him by his mother by Hiba. He denied any relationship of landlord and tenant with the plaintiff and also denied to have taken the suit house from the plaintiff on a monthly rent of Rs. 10.00 (rupees ten only). He never paid any rent to the plaintiff, nor was any rent due against him.