AMINA BI Vs. KHAMURUNNISSA

JUDGEMENT

(1.) THE defendants are the appellants. The above second appeal arises out of O. S. 347 of 1965 filed for declaring the plaintiff's title to the suit property and for possession. The above suit was tried by the trial court along with O. S. 612 of 1965 filed by the first defendant in O. S. 347 of 1965 for redemption of a simple mortgage executed by the plaintiff to secure a loan of Rs. 1000 on the security of the house and ground covered by O. S. 347 of 1965. The two suits were heard together. I shall now take up the allegations in O. S. 347 of 1965 out of which the above second appeal has arisen. The plaintiff claims title under a sale deed dated 3-4-1964 executed by one Fatima Bi in her favour and the allegation in the plaint is that the first defendant was occupying the B schedule property which is a portion of A schedule property as a tenant under her vendor (Fatima Bi) from 1961 on a monthly rent of Rs. 10, that the said first defendant failed to pay the rent after her purchase and further denied her title and set up title in herself to the entire A schedule property that she was called upon to quit by notice dated 23-91964 (Ex. A-39), that thereupon the plaintiff sent a further notice dated 25-31965 terminating the tenancy of the first defendant with the end of April, 1965 and that the said notice was returned, refused and the present suit was filed for declaration of title and recovery of possession of the B schedule property. She did not seek any relief in respect of the other portions of the A schedule property as the tenant in occupation of the said portion had attorned to her after her purchase. Originally A schedule property belonged to one Jinath Bi and others and on 14-7-1897 (Ex. A-4) the said owners executed a possessory mortgage in favour of Mohammed Jabbar Sahib and Jabbar Sahib was in possession from 1897 onwards, till be made a gift of it to his wife Fatima Bi in lieu of her dower debt in 1928 and Fatima Bi entered into possession of the said property and continued in possession of the said property and continued in possession till she sold the same to the plaintiff of 3-4-1964 (Ex. A-1 ). The further case of the plaintiff is that the entire property was held by one Abdul Rahim as a tenant under Fatima Bi from january, 1954 till his death in 1961 and that the first defendant is the sister of the said Abdul Rahim and was living with her brother during the tenancy period and after the death of Abdul Rahim the first defendant is said to have held the B schedule property on lease from month to month under Fatima Bi on a monthly rent of Rs. 10 and defendants 2 and 3 are the grand-daughter and granddaughter's husband of the first defendant who were impleaded for effective adjudication of the matters in dispute. The present suit is filed for the reliefs mentioned above.

(2.) THE defence to the suit is that the property did not belong to Jabbar Sahib or fatima Bi, that Abdul Rahim was not the tenant of the property and that the first defendant was not living with Abdul Rahim nor did she become the tenant of the B schedule property under Fatima Bi. On the other hand, their case is that A schedule property belonged to one Hussainia mean, the father in-law of the first defendant, that the first defendant's husband got the property on his father's death and that on the death of her husband on 29-10-1940, the first defendant entered into possession of the property and has continued in possession throughout, that Habibur Rahman was not a sub-tenant under Abdul Rahim and that he was colluding with the plaintiff and that he could not validly attorn to the plaintiff and the attornment in fact did not take place.

(3.) THE trial Court held that Mohamed Jaffar Sahib had title to the property as mortgagee and the property belonged to him for all purposes as against the third parties. The trial court further held that the gift by Mohammed Jaffar to Fatima Bi in 1928 in lieu of her dower debt is true and as the defendants filed to prove their title to the A schedule property, the trial Court did not record a finding on issue no. 3 viz, whether Fathima Bi had completed title to plaint A schedule property by prescription. The next finding of the learned judge was that the sale by Fatima Bi to the plaintiff is true and that the plaintiff has title to the suit property including the B schedule property. The lease of the B schedule property by Fathima Bi to the first defendant was held not to be true and the first defendant was never a tenant under Fathima Bi. In the result, the suit was decreed as prayed for declaring her right to hold and possess B schedule property by virtue of the rights derived from the usufructuary mortgage deed dated 14-7-1897 and the agreement of sale dated 8-4-1908 in favour of Mohammed Jaffar Saheb and also directed the defendants to put the plaintiff in possession of the said B schedule property forthwith.