MOHD AFZAL AND OTHERS Vs. MUKHTIYARI ALIAS AKHTARI

JUDGEMENT

(1.) Heard Sri Anil Sharma, learned counsel for the appellant and Sri M.A. Qadeer, learned Senior assisted by Sri H.V. Shastri for the respondents.

(2.) This is the defendants' second appeal. The plaintiff filed a suit for cancellation of sale deed dated 13.11.1984 which was duly registered in respect of the disputed properties. The case of the plaintiff was that the properties in dispute were khasra no. 795 area 14 biswa 13 biswansi, Khasra no. 796 area 11 biswa 7 biswansi, Khasra no. 798 area 2 bigha 7 biswansi, Khasra no. 799 area 1 bigha 13 biswansi, Khasra no. 800 area 5 biswa 7 biswansi and Khasra no. 801 area 4 biswa. The plaintiff claimed to be owner of the half portion of this property and Sharfuddin and Rafeequddin S/o Bunda were owners and in possession over the other half of the property. Her case was that till date she had not executed any power of attorney (Mukhtarnama) in favour of any person or in favour of the defendants nor has sold any portion of the property. According to her, sometime in the month of July, 1997 she heard from some sources that the suit property was to be transferred in favour of some persons and, therefore, she made enquiries to that effect and thereafter she came to know that the father of the defendants had filed Mutation Suit no. 94 of 1985 (Sharfuddin Vs Rafeequddin) under section 34 of the Land Revenue Act for mutation of names in which an ex-parte decree was passed on 24.1.1985 without giving any opportunity of hearing to the plaintiff of being heard or contesting the suit. On 28.4.1997 she filed an application for recall of the order which was rejected by order dated 25.6.1985 and on 26.8.1997 the suit was decreed. The plaintiff made enquiries in the office of the Sub-Registrar and thereafter she came to know that a power of attorney has been executed by her in favour of Rafeequddin on 21.10.1984 and on the basis of the said power of attorney, Rafeequddin, father of defendants 3, 4 and 5 had executed a sale deed on 12.11.1984 in favour of his brother Sharfuddin, father of the defendants no.1 and 2. She further claimed that she had not executed any power of attorney in favour of Rafeequddin nor had she received any consideration in respect of sale of the property in dispute. The entire proceedings were forged and fraudulent and void. The defendants filed written statement denying the plaint allegations. It was denied that the plaintiff was in possession of half portion of the property and in the other half Sharfuddin and Refeequddin S/o Bunda were owners in possession. It was also denied that the plaintiff had executed a power of attorney in favour of Refeequddin. The case of the defendants in their written statement was that the father-in-law of the plaintiff Muneer and Asgar and Mumtaz were the owners and in possession of the property in question. Azgar and Mumtaz sold their share of the property to Sharfuddin and Rafeequddin in 1967-68. Muneer, father-in-law of the plaintiff was in need of money, so the plaintiff approached Rafeequddin, who gave her Rs. 2,000/-. Rafeequddin advised the plaintiff to get a sale deed executed from her father-in-law so that in case he could not return the money, they would execute the sale deed and recover the money. The plaintiff took the money from Rafeequddin and gave it to her father-in-law and got a sale deed executed in her own favour and she started cultivating the land. The father of the defendants and the defendants came into possession of the suit property which was within the knowledge of the plaintiff but she did not raise any objection and therefore, the suit was barred by the principles of estoppel and acquiescence. Neither the plaintiff nor her father-in-law returned the money of Rafeequddin upon which Rafeequddin obtained a power of attorney from the plaintiff in his favour on 11.10.1984 which was duly registered in which the husband of the plaintiff was also a witness. Thereafter, Rafeequddin, executed a sale deed in favour of Sharfuddin (father of the defendants 1 and 2) on 13.11.1984 which was also duly registered. Sharfuddin expired in 1985. It was also denied that the order passed on 24.6.1985 in mutation proceedings was illegal or that the name of the plaintiff was recorded in the revenue records. The defendants denied that the power of attorney executed by the plaintiff in favour of Rafeequddin was a forged and fraudulent document. It is also stated that the sale deed was executed in 1984 and since then the defendants are in possession of the plot in dispute, the suit filed in 1997 is grossly barred by limitation by 13 years.

(3.) The trial court framed issues.