IBNE HASAN Vs. HASINA BIBI

JUDGEMENT

(1.) One Haji Mohammad Ibrahim. had three sons--Mohammad Siddiq, Mohammad Yousuf and Mohammad Ismail. Ibne Hasan, the appellant in this second, appeal, is the son of Mohammad Ismail, whereas the respondents are the legal representatives of Mohammad Siddiq. Suit No. 911 of 1970 was instituted by Mohammad Siddiq in the' Court of Munsif, Varanasi, alleging that Haji Mahammad Ibrahim was the owner of house No. D-34/88 (present No. 43/1397) and a portion of house. No. D-34/85 (present No. 43/1.38) shown in yellow colour in the map attached to the plaint. While going for Haj pilgrimage, the executed a registered Intzamnama on 11th September, 1924, providing for the management of his properties in his absence. After return from Haj, Haji Mohammad Ibrahim resumed possession of his properties and continued to deal with the same as their owner. Due to family differences, Mohammad Ismail, father of defendant Ibne Hasan, went away to Calcutta, While Mohammad Ismail was at Calcutta, Custodian, Evacuee Properties, issued notices treating Mohammad Ismail to be an evacuee and showing the disputed properties as evacuee properties. Haji Mohammad Ibrahim objected to the notice served by the Custodian who discharged the same vide his order dated 13th February, 1952. The appeal filed against the order of the Custodian was also dismissed on 17th....1952. Mohammad Ibrahim also filed suit No. 126 of ......... seeking declaration that he was the owner of the two houses and that the Intazamnama dated 11th September 1924, did not confer any ownership, rights on his son Mohammad Ismail. That suit, after Mohammad Ismail filed a written-statement was decreed on 11th October, 1952. Thereafter Mohammad Ibrahim gifted the two houses to plaintiff Mohammad Siddiq by means of a registered gift deed dated 22nd January, 1953, and the donee obtained possession of the houses as owner thereof. Subsequently Mohammad Ibrahim died on 26th May. 1954, and Mohammad Ismail went away to Pakistan. The Custodian of Evacuee Properly again issued notice dated 28th September, 1954, treating Mohammad Ismail as an evacuee and the said properties as evacuee properties. On an objection being raised by the plaintiff the Assistant Custodian, Allahabad accepted his title to the properties and held that Mohammad Ismail had no concern with the same. After Mohammad Tsmail had gone away to Pakistan leaving his son (defendant. Ibne Hasan) at Varanasi, the plaintiff permitted Ibne Hasan to live as a licensee in portion of the house detailed in Schedules A and B of the plaint. However, as the defendant created same trouble at a family function, the plaintiff, by means of a notice, terminated his licence and called upon him to vacate the premises in his occupation within, fifteen days. In reply, the defendant asserted title to the property on the basis of an oral gift from his father Mohammad Ismail made some thirteen years back. The plaintiff; therefore, filed the suit giving rise to this appeal seeking defendant's ejectment and for recovery of damages for its use and occupation.

(2.) The defendant-appellant contested the suit on various grounds. He claimed to be himself the owner of the property in dispute. The trial Court dismissed the suit. Mohammad Siddiq preferred an appeal. During the pendency of the appeal before the lower appellate Court he died and his legal representatives who are the respondent in this second appeal were substituted, in his place. The suit was decreed by the lower appellate Court. Aggrieved, the defendant Ibne Hasan has filed this second appeal.

(3.) The second appeal came up for hearing before a learned single Judge of this Court. ' One of the pleas raised on behalf of the plaintiff-respondents was that the decree in suit No. 126 of 1952 operated as res judicata and the claim of the defendant of being the owner of the property in dispute was consequently barred. The plea raised, in reply by the defendant appellant was that, the decree in suit No. 126 of 1952 had been collusively obtained by the parties thereto with the object of saving the properties from falling into the hands of the Custodian, Evacuee Property, and as such in view of Section 44 of the Evidence Act it was not binding on, him and could not operate as res judicata. In regard to this plea it was asserted for the plaintiff-respondents that since Mohammad Ismail, the father of the appellant, was a party to suit No. 126 of 1952 and the appellant was claiming title through him he could not avoid the said decree by taking recourse to Section 44 of the Evidence Act.