MARIUM BIBI Vs. PRABANDHAKLABIC

JUDGEMENT

(1.) Since both these appeals involve common substantial questions of law, they are being disposed-off by this common judgment.

(2.) The substantial questions of law commonly involved, formulated and to be answered in both these second appeals preferred by the plaintiff are as under:-

(3.) Marium Bibi - the plaintiff, filed a suit for declaration of title and permanent injunction stating inter alia that she is the owner of the suit land bearing Khasra No.754/2, area 0.713 hectare. She further averred that the suit property was originally held by Baitul Bibi, wife of Rustam Ali, who sold the property through registered sale deed dated 11-7-1973 (Ex.P-1) to Tajmun Bibi (mother of the plaintiff) and possession was delivered to said Tajmun Bibi and Tajmun Bibi gifted the suit property to the plaintiff by gift deed dated 10-9-1974 (Ex.P-2) and mutation was done in her favour on 13-10-1974. It was further stated that Mohd. Khalil - defendant No.5, being Karta of Muslim Undivided Family, took a loan of ? 8,500/- from the defendant Bank and along with other properties, the plaintiff's suit land was also erroneously mortgaged and mortgage deed Ex.D-2 was executed by Mohd. Khalil and Baitul Bibi, though Baitul Bibi had already transferred the property to Tajmun Bibi and Tajmun Bibi had gifted the property to the plaintiff. When the loan was not repaid, the plaintiff's property was also auctioned by the Bank in favour of defendant No.4 Brijmohan as such, since the property was not owned by defendant No.3 Rustam Ali or Baitul Bibi, therefore, the Bank was not entitled to auction the same and as such, the plaintiff is entitled for declaration of title and further declaration that the auction sale is void.