BOLA ALIAS SHYAM BAI Vs. DULARAM

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated 12.9.1994 passed by the 6th Additional District Judge, Bilaspur, in Civil Appeal No. 22A/93 reversing the judgment and decree dated 1.8.83 passed by the 4th Civil Judge Class-II, Bilaspur, in Civil Suit No. 125 A/77 whereby learned 4th Civil Judge Class-II has dismissed the suit for declaration of title and possession filed on behalf of Respondent No. 1 on the basis of sale deed executed by deceased Mohd. Hanif alleged husband of deceased Baisakhiya Bai who was original owner of the suit land, learned lower appellate Court has allowed the appeal and reversed the judgment and decree of the 4th Civil Judge Class-II, Bilaspur and declared Respondent No. 1 as a owner of the suit land and entitled for possession of the suit property.

(2.) BRIEF facts lading to filing of this appeal, as claimed by Respondent No. 1 original owner of the disputed property situated at Village Bodri was Baisakhiya Bai who was unmarried. She went Calcutta for her livelihood where she converted herself into Islam and married with Mohd. Hanif in accordance with the provisions of Mahomedan Law and changed her name as Hamidan Bi. Deceased Defendant Jahani was real brother of Baisakhiya Bai. Baisakhiya Bai @ Hamidan Bi died on 25.7.73. After her death, property was succeeded by her husband Mohd Hanif who sold the property to present Respondent No. 1 Dularam vide registered sale deed dated 26.12.1973 and thereafter Respondent No. 1 came into possession of the suit land. In the year 1975, at the time of cutting of crops, proceeding under Section 145 of the Code of Criminal Procedure, 1973 (in short 'the Code') was initiated and receiver was appointed. Finally, Sub Divisional Magistrate, Bilaspur has declared the possession of the present Appellant and her husband Jahani which was affirmed by the revisional Court. After decision of the revisional Court, present Respondent No. 1 has filed the suit against the present Appellant, husband of the Appellant and alleged husband of Baisakhiya Bai @ Hamidan Bi namely i.e. Mohd. Hanif. The present Appellant and her husband have contested the suit and pleaded that Baisakhiya Bai was Hindu woman and had never converted into Islam. Deceased Jahani was her real brother. Marriage between Hindu woman and Muslim man was not legally possible under Mahomedan Law. The property was owned by Baisakhiya Bai. Her name was not Hamidan Bi. After death of Baisakhiya Bai, her property devolved upon her only surviving heir brother Jahani who became owner of the property and was in peaceful possession. He has mutated his name. Proceeding under Section 145 of the Code was initiated and finally possession of Jahani was declared. Any sale or transfer of the land by Mohd. Hanif without any interest is void ab initio. The alleged husband of Baisakhiya Bai @ Hamidan Bi i.e. Mohd. Hanif has also filed separate written statement in which he has pleaded that he has never married with Baisakhiya Bai. She has not converted into Islam, her name was not Hamidan Bi. She was residing with her brother Jahani at Bodri. She was residing in her house. Mohd Hanif was her tenant. After death of Baisakhiya Bai, her last rituals had been performed by her brother Jahani. He has not purchased any land in the name of Baisakhiya Bai. He has not executed sale deed in favour of present Respondent No. 1 Dularam, but at the instance of Dharamdas, brother of Respondent No. 1 with a view to secure the loan borrowed by Mohd.Hanif, Dharmu @ Dharamdas has obtained signature over some documents of Mohd. Hanif Mohd. Hanif has paid the loan but Dharamdas has not returned the documents.

(3.) JUDGMENT and decree was challenged before the lower appellate Court and lower appellate Court has reversed the judgment and decree on the ground that Mohd.Hanif was husband of Baisakhiya Bai @ Hamidan Bi and there was lawful marriage between Baisakhiya Bai @ Hamidan Bi and Mohd. Hanif. After death of Baisakhiya Bai, property was succeeded by her husband, he was competent to sale the property to Respondent No. 1.